- The Washington Times - Friday, August 19, 2005

Will a Republican president ever again name a nonstealth conservative to the U.S. Supreme Court? Or will liberal Democrats impose not one but two litmus tests on Supreme Court nominations?

The first prospective litmus test is that Democratic presidents, deferring to the liberal base of the Democratic Party, will name only publicly pro-abortion justices to the court. The second prospective litmus test is that Republican presidents, to avoid a major political brawl with the liberal base of the Democratic Party (and their allies in the liberal media), will name only stealth nominees.

If these two litmus tests are institutionalized, the liberal base of the Democratic Party will retain significant influence over the nomination of Supreme Court justices no matter which party controls the White House or the Senate.

Contrast how President Clinton replaced retiring Justice Byron White when Democrats controlled the Senate in 1993 with how President Bush has moved to replace retiring Justice Sandra Day O’Connor with a Republican-controlled Senate today.

White, a Democrat appointed by President Kennedy, was one of only two justices who dissented from the 1973 Roe v. Wade decision, which created a right to abortion. When White retired, Mr. Clinton and Republican Sen. Orrin Hatch of Utah, then-ranking Judiciary Committee Republican, agreed at least one thing was inevitable: White’s successor would be pro-abortion.

When he nominated former American Civil Liberties Union lawyer Ruth Bader Ginsburg, Mr. Clinton declared, “She is clearly pro-choice.” Mr. Hatch said: “There’s no question, I’m pro-life, she is pro-choice…. But the president said he’s going to have that litmus test, so that’s a given as far as I’m concerned.” Mr. Hatch even called Justice Ginsburg “an excellent choice.”

At her confirmation hearing, Justice Ginsburg delivered for Mr. Clinton. “This [the decision to have an abortion] is something central to a woman’s life, to her dignity,” she said. “It’s a decision that she must make for herself. And when government controls that decision for her, she’s being treated as less than a fully adult human responsible for her choices.”

Only three Republican senators voted against Justice Ginsburg: Jesse Helms of North Carolina, Don Nickles of Oklahoma and Bob Smith of New Hampshire. All now are retired.

When Justice O’Connor retired, President Bush did not move as boldly as President Clinton did in replacing White. He did not declare his nominee “clearly pro-life.” In fact, Mr. Bush did not even move as boldly in picking a Supreme Court nominee as he had in picking many of his appellate court nominees — some of whom were battle-scarred veterans of lower courts, who had taken unambiguous stands on controversial issues and who, as a consequence, were filibustered by Senate Democrats.

Instead, he picked John Roberts, one of his appellate court nominees who had not been filibustered.

Judge Roberts, a brilliant lawyer, managed to spend a quarter-century working on constitutional issues in Washington without ever publicly tipping his hand about where he personally stands on constitutional issues. With his appeals court nomination before the Senate Judiciary Committee in 2003, he was asked about his philosophy of constitutional interpretation. “Well,” he said, “I think I would have to say that I don’t have an overarching, uniform philosophy.”

He was also asked about his statement, in a brief written as deputy solicitor general in the first Bush administration, that Roe’s conclusions “find no support in the text, structure or history of the Constitution.” He said: “I do not believe that it is proper to infer a lawyer’s personal views or beliefs from the argument advanced by that lawyer on behalf of a client.”

Since his nomination, reporters and interests groups have been searching Judge Roberts’ record for evidence of where he truly stands. There are many intriguing hints.

For pro-life conservatives, one of the most intriguing may be the statement in The Washington Post this week by commentator Bruce Fein, who served with Judge Roberts in the Reagan Justice Department.

“I know he thought Roe was totally ill-reasoned and extraconstitutional,” said Mr. Fein. “Everyone in the department did — we talked about it.” Mr. Fein added that whether Judge Roberts would vote to overturn Roe “is another matter,” depending on how deferential he is to precedent.

The true measure of Judge Roberts as a justice may not come until years after he is confirmed.

But a reckoning will come sooner for President Bush. When the next vacancy opens, will he duck a healthy political battle — implicitly accept a Democrat-imposed litmus test on his constitutional authority to nominate justices — and pick another stealth nominee? Or will he prove once and for all that a Republican president and a Republican Senate are ready and able to nominate and confirm an out-of-the-closet conservative to the U.S. Supreme Court?

Terence P. Jeffrey is a nationally syndicated columnist.

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