Litmus test? What litmus test?

The White House says the president is making his way through the records of more than a dozen potential Supreme Court nominees, without any concern for the political views of any of them.


Tim Grieve
July 6, 2005 9:26PM (UTC)

We spent some time this morning on one of the perception games being played over the replacement of retiring Supreme Court Justice Sandra Day O'Connor. Here's another. As we all wait for George W. Bush to announce his pick for O'Connor's replacement, we're supposed to believe that the president is methodically making his way through a stack of resumes and legal decisions from a long short list of potential nominees with no interest whatsoever in the political views of any of them.

That's what we're supposed to believe because that's what the president and his people are telling us. At a press availability in Denmark Tuesday, Bush said he is busy "reading about the different backgrounds and different opinions and different attitudes of the perspective [sic] nominees" and is looking forward to "the review process, the interview process, as well." Asked whether he'd use a "litmus test" on abortion or gay marriage in picking O'Connor's replacement, Bush said: "As I said during both of my campaigns, there will be no litmus test. I'll pick people who, one, can do the job, people who are honest, people who are bright, and people who will strictly interpret the Constitution and not use the bench to legislate from. That's what I campaigned on and that's what I want to do."

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Of course, Bush also campaigned on the idea that he'd nominate judges in the "mold" of Antonin Scalia and Clarence Thomas. So you can excuse NARAL Pro Choice America president Nancy Keenan if she's feeling a little skeptical about the president's answer to the litmus test question. "We really would like to take President Bush at his word," Keenan says in a statement posted on the NARAL Web site. "But while I may have been born in the morning, it wasn't this morning. This president has no credibility. To date, he has appointed more than 200 judges to the federal courts -- not one of whom supported a woman's right to choose. The only hope of preserving personal freedom and the right to privacy is genuine bipartisan consultation to identify a consensus nominee."

But that's the other part of this process that requires some suspension of disbelief. Although Karl Rove says he's got no obligation to do so, maybe Bush will consult with senators from both sides of the aisle before announcing a nominee. But are we really to believe that Bush and his team are starting this process with a blank slate? That the president is really considering the names of more than a dozen potential justices, as Scott McClellan said earlier this week? A Supreme Court retirement has been expected every summer for several years now. Can it really be that the president and his people didn't have a pretty good idea about who he'd nominate even before O'Connor announced her resignation last week? No, no, the White House says, it's a big list that the president is considering, with people from "all walks of life."

Sure it is. What seems more likely is that Bush has a nominee in mind, and whether he sticks with that pick turns on 1) whether anything unusual shows up in the vetting process, 2) whether his base goes ballistic over this trial balloon or that, and 3) whether William Rehnquist retires this summer, too, a possibility that would complicate, for better or for worse, the choice that Bush has to make.

So yes, Rove and Bush can talk about how the president wants to take his time in poring over the records of all of the potential nominees and carefully weighing the pros and cons of each. And yes, we can be sure that the president will avert his eyes if he stumbles upon anything in those records that might give a clue about a potential nominee's views on abortion or gay marriage. And then, on that glorious day when the president comes down from the mount to announce that he's finally decided on the candidate he wanted all along, we can all pretend that the political views of the nominee had nothing to do with anything and that it would be an affront to the traditions of our great Republic to inquire about them.

That's the game the White House is playing now. To one extent or another, it's the game that every White House has played. The question now: Will the Democrats buy into the fiction this time around, or will they see in a weakened president and a hard-right nominee a permission slip for breaking the rules?


Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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