- The Washington Times - Friday, December 24, 1999

Vice President Al Gore likes to pose as a defender of tolerance and choice. Particularly important, if you believe his rhetoric, is the issue of judicial independence.

Yet it turns out that he would set a litmus test for his judicial nominees. They would have to be pro-abortion.

Not that he’s willing to actually admit it. Explains Mr. Gore: “I’m not comfortable with litmus tests for a Supreme Court nomination.” But, he adds, “there are ways to understand whether or not a potential nominee has an interpretation of the Constitution that is consistent with mine,” namely, that it is unlawful to protect the unborn.

In short, he would apply an abortion litmus test.

That Al Gore is an abortion crusader itself demonstrates his hypocritical opportunism and lack of moral conviction. He was once pro-life. Not only did he oppose Medicaid funding of abortion; as a congressman, he voted to classify an unborn child as a person under the 1964 U.S. Civil Rights Act.

That was before he became a presidential candidate, however. He, like Arkansas Governor Bill Clinton and Missouri Rep. Richard Gephardt, flip-flopped in an attempt to become the Democratic Party standard-bearer.

Still, for years at least so long as Republicans were making judicial appointments he and fellow Democrats denounced the use of abortion as a litmus test for judicial nominees. In 1980 the Republican Party platform promised to “work for the appointment of judges … who respect traditional family values and the sanctity of innocent human life.” Although Republican presidents failed to follow through (consider the abortion opinions of Justices Anthony Kennedy, Sandra Day O’Connor, and David Souter, GOP appointees all), Democrats routinely attacked the promise.

For instance, in November 1980 then-Rep. Al Gore explained that “I would not use any specific issue as a litmus test for the nomination.” In response to criticism by pro-life groups of Justice O’Connor, Sen. Edward Kennedy responded that it is “offensive to suggest that a potential justice must pass the litmus test of any single-issue group.” Sen. Howard Metzenbaum took the same position: “I believe there is something basically un-American about saying that a person should or should not be confirmed for the Supreme Court based on somebody’s view that they are wrong on one issue.”

Senators Metzenbaum and Joseph Biden later denounced efforts to make nominees pass “an ideological litmus test.” Sen. Patrick Moynihan complained that “There is a word for the ideological tests for the judiciary which are seemingly now in place in the White House and the Justice department. That word is corruption.”

When President Ronald Reagan elevated William Rehnquist to the Chief Justiceship and nominated as associate justice Antonin Scalia, Mr. Gephardt, Sen. Paul Simon, Mr. Biden and New York Gov. Mario Cuomo all denounced the use of ideological litmus tests for judges. In 1987 Judiciary Committee Chairman Biden accused President Reagan of having “politicized this matter by allowing his Justice Department to adopt litmus tests for nominees.”

After the defeat of Robert Bork, Judiciary Committee Democrats requested records of any contacts between the Department and Anthony Kennedy because, explained Sen. Patrick Leahy, “We have to make sure somebody is not appointed based on litmus test commitments of how they will vote in cases coming up.” Similar concerns were raised about President George Bush’s nomination of Clarence Thomas and David Souter.

But once the Democrats seemed poised to gain the White House, their concern about judicial litmus tests disappeared. For instance, candidate Bill Clinton explained: “I hate to have any litmus tests, but I would want to know that Roe vs. Wade would be secure.” Later, he explained, “I’m pro-choice and I would expect to make appointments accordingly.”

This was not an ill-considered, off-the-cuff pander to the pro-abortion lobby. In December 1991, Mr. Clinton declared that “I wouldn’t appoint anyone to the Supreme Court who didn’t believe that there was in this Bill of Rights … a constitutional right to privacy,” including abortion.

Now Al Gore is using the same approach. He opposes litmus tests but, he allows: “I believe there is a right of privacy in the Constitution.” And, he emphasizes, his nominees will have to share his interpretation of what that means. Meaning the right to abort the unborn.

The courts play a critical role. Founding Father James Madison believed that they were to act as guardians of our liberties, “an impenetrable bulwark against every assumption of power in the legislative or executive.” Thus, potential judges should be subject to a litmus test. They should be committed to enforcing constitutional guarantees of individual rights while rebuffing attempts to create faux rights based on prevailing political fashions.

But presidential candidates should impose litmus tests openly and honestly. Unlike, obviously, Al Gore.

Doug Bandow is senior fellow at the CATO Institute.

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