ROGER SIMON COLUM
JULY 20, 2005
WASHINGTON - - Liberals can forget about blocking John G. Roberts from the U.S. Supreme Court. It simply isn't going to happen.
The U.S. Senate will confirm Roberts - - there will be no filibuster - - and he will probably serve for decades.
I am sure of this for two reasons: Roberts has no long paper trail as a judge and he is bright enough to keep his mouth shut.
True, as a lawyer working in the Reagan administration in 1991 - - he was the principal deputy solicitor general in the Justice Department - - he argued that Roe v. Wade was "wrongly decided and should be overruled", but that is what his client, Reagan, wanted. Roberts will argue he was merely a tool, a hired-gun, a lawyer.
Later, in getting confirmed for the U.S. Court of Appeals for the District of Columbia, Roberts said, Roe v. Wade was the "settled law of the land."
But how does he now feel about abortion? And how would he vote on it in the future?
We are not going to find out.
And we are not going to find out because the whole confirmation process is a game in which senators yap as much as they can and the nominee says as little as possible.
Not even the President of the United States knows for sure how Roberts feels about abortion. That's right. The guy who nominated him, George W. Bush, has made clear he does not apply a "litmus test" to his nominees. Which is what all presidents now say.
Back on April 5, 1992, presidential candidate Bill Clinton made campaign history by saying, "I will appoint judges to the Supreme Court who believe in the constitutional right to privacy, including the right to choose."
It was, I thought, honest and refreshing: Clinton was doing away with the pretense that he did not have a litmus test for his nominees.
And, on June 30, Clinton expanded on this by saying: "I think a judge ought to be able to answer a question in a Senate hearing: 'Do you or do you not support the right to privacy, including the right to choose?' "
A week later on July 7, Bill Moyers interviewed Clinton on PBS and endeavored to make sure that not only Clinton but everybody else understood exactly what Clinton was saying.
"Will you see to it," Moyers asked, "if you're elected . . . your first appointee (to the Supreme Court) will be a strong supporter of Roe vs. Wade?"
"Yes," Clinton replied.
"Is that not a litmus test?" Moyers asked.
"It is, and it makes me uncomfortable," Clinton replied, "(but) I would want the first judge I appointed to believe in the right to privacy and the right to choose."
There. He had said it plainly. Then something happened: Clinton got elected.
And at his first formal press conference in March, 1993, he was asked by a reporter: "Mr. President, during the campaign you gave some pretty strong indications that (in choosing) your Supreme Court nominee, you would certainly consider their position on abortion. Is that still the case?"
"Thank you for asking," Clinton said, "because I want to emphasize what I said before: I will not ask any potential Supreme Court nominee how he or she would vote in any particular case. I will not do that."
Huh? What happened? Before getting elected, Clinton said one thing and after he got elected he said another.
I have never understood why presidents don't use a litmus test or any other test they want in nominating people for the high court.
George W. Bush is opposed to abortion. So why shouldn't he pick a Supreme Court justice who is also opposed?
And why shouldn't Bush just ask the guy how he feels, one way or another?
But, Bush says he has not done and will not do that.
"Voters should assume that I have no litmus test on that issue or any other issue," Bush said on Oct. 3, 2000 during his presidential debate with Al Gore. "The voters will know I'll put competent judges on the bench, people who will strictly interpret the Constitution and will not use the bench to write social policy."
In other words, candidates and presidents like to speak in code so nobody knows exactly what they mean.
That way nobody can blame them if things go wrong.