Gov. Bill Clinton said he would nominate as a Supreme Court justice only a person who supports Roe vs. Wade, the abortion decision. So Bill Moyers asked Governor Clinton, "Is that not a litmus test?" Such litmus testing of judicial nominees is what the Democrats have been criticizing the Reagan and Bush administrations for applying for years. (Their test was supposed to find judges who opposed the Roe decision.)
The governor's answer was, "It is, and it makes me uncomfortable, [but] I would want the first judge I appointed to believe in the right to privacy and the right to choose."
So would we. And the second and third judges, too. But we do not agree with the governor on using such a test on judicial candidates, especially those for the Supreme Court. Why? Because as we said when David Souter's nomination was being considered two years ago:
"A Supreme Court justice votes on more than 100 cases a year, which involve scores of issues besides abortion specifically and privacy and liberty generally. A justice's fitness has to be based on a broader view. [And] if Judge Souter were to tell a president, senator or interest group how he would vote on a specific case, he would disqualify himself from sitting on such a case, having in effect already sided with one of the litigants."
Not even Joe Biden agrees with Governor Clinton. Senator Biden, the chairman of the Judiciary Committee, made that clear last month. In what he called the longest such speech he has ever made in 19 years in the Senate, he laid out his views on how senators should approach Supreme Court nominees. He said senators should decide on voting to confirm or reject based on a nominee's jurisprudential views, but he also said that "Democrats and moderate Republicans" should not use Roe vs. Wade as a "divining rod in reverse, making a nominee's views or refusal to state his views on this question the overriding concern in the confirmation process."
Justices tend to serve a long time on the Supreme Court. Who knows what the issues will be 20 or 30 years in the future? It is better to nominate and confirm individuals of intellect and wisdom (not the same things), character, temperament and philosophy, rather than giving them a test on one or even a few specific issues.
This is a political issue -- a presidential campaign issue. As Senator Biden pointed out, there have been three bitter fights over Supreme Court nominations in just the past five years, and it is possible that three or four more vacancies will occur on the court in the next four years. Governor Clinton should rethink his views on this.
And Democrats should apologize to President Bush for their past accusations. As Justice David Souter proved in voting to uphold Roe, there wasn't a litmus test after all.