Light On Dark Water

The Litmus Test Test

My old friend Daniel Nichols, with whom I worked on Caelum et
Terra is one of those relatively rare people who is genuinely
conservative on social issues but tends to lean left on other
matters. Though he’s vehemently opposed to the Iraq war
(not necessarily a leftward position, of course), he wrote me
recently that he intended to hold his nose and vote for Bush for
the same reason that many social conservatives continue to
support Republicans: the Supreme Court. Although Republicans in
general and President Bush in particular can’t be counted
on to appoint judges who will resist the judicial imposition of
the liberal social agenda, the Democrats can certainly be counted
on to promote it vigorously.

A day or two after the third presidential debate I heard from
him again. Disgusted by Bush’s refusal to take a definite
or specific stand on judicial appointments other than “No
litmus tests,” he was reconsidering the idea of voting for
the president.

Now there are a lot of arguments to be made for and against
Daniel’s position, and I am at the moment entirely sick of
them. I have been spending far too much time lately reading and
occasionally participating in the debate at
Amy Wellborn’s
blog, which gravitates frequently to the intramural Catholic
quarrel over whether it’s permissible to vote for someone
as committed to unrestricted abortion rights as John Kerry
manifestly is.

What really strikes me about the matter is the role played by
the media—or, perhaps I should say, since The Media is not
quite the monolith it once was, the MSM, or MainStream Media. The
triumphant cries of bloggers in the wake of Dan Rather’s
recent debacle notwithstanding, the MSM still have a great deal
of power to frame the terms of political debate, and the question
of judicial appointments is one where a conservative who takes
any kind of definite stand simply cannot escape being
horsewhipped for “imposing a litmus test,” illicitly
injecting ideology (or theology) into the law, etc. ad
nauseam. “Litmus test” is itself only a scare
phrase which means nothing unless attached to a specific
test—would anyone scream “litmus test” if a
candidate said he would not appoint a justice who supported
striking down the first amendment as unconstitutional? But a
liberal can openly assert a very strict ideological test and the
MSM will not complain in the least.

If Bush were to say that he intended to appoint only justices
who would vote to overturn Roe v. Wade, he would be all but
crucified by the Democrats and most of the press. Bush of course
knows that, and so, even if he does believe the decision should
be reversed, he doesn’t dare say so in such a close
race. I can imagine Dan Rather’s introduction to the story:
“A troubling admission today from the Bush campaign…”, and
then would come the quotes from unnamed “observers” talking about
“red meat for the president’s right-wing base” and asking
whether the election of such a fanatic might not mean that the light of justice
would wink out forever like the light from a dying star.

John Kerry, on the other hand, can stand tall for his
ideology, secure in the knowledge that none of the big media,
with the possible exception of Fox News, will make trouble for
him, and will in fact congratulate him for his integrity.
Here’s how Bush answered the question as to whether he
would like to see Roe v. Wade overturned:

What he’s asking me is, will I have a litmus test for my
judges? And the answer is, no, I will not have a litmus test. I
will pick judges who will interpret the Constitution, but I’ll
have no litmus test.

And here’s the followup from Kerry:

I’m not going to appoint a judge to
the Court who’s going to undo a constitutional right, whether
it’s the First Amendment, or the Fifth Amendment, or some other
right that’s given under our courts today—under the
Constitution. And I believe that the right of choice is a
constitutional right.

So I don’t intend to see it
undone.

Question 1: Which of these men has a
“litmus test” for judicial appointees, that is, a
pre-determined position, to which any
potential appointees must assent, on a specific legal matter?

Question 2: Which of them will be
credited by the Democrats and most of the media with having such
a test?

Question 3: Why do many conservatives long to dance on the
grave of Dan Rather’s career?

And a bonus essay question for advanced constitutional scholars:
Comment on Mr. Kerry’s conflation of the authority
and standing of Roe v. Wade
with that of the First and Fifth Amendments to the Constitution.
Express your feelings about the fact that John Kerry may soon be in a position
to nominate Supreme Court justices. Does this thought make you
happy or sad?