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   Jeff Jacoby
Jeff Jacoby is a columnist for The Boston Globe.

Copyright Boston Globe

April 13, 2003

Senator John Kerry assured a group of Democratic women at a breakfast in Iowa last week that if he is elected president, he will nominate for the Supreme Court only judges who support Roe v. Wade and the broad guarantee of abortion rights that it stands for.

But isn't that a political litmus test? And aren't litmus tests for judges frowned upon?

Kerry didn't wait to be challenged. "Let me just say to you: That is not a litmus test," he told the breakfast group.

In fact, a litmus test -- an ideological hurdle that he would require any Supreme Court nominee to clear -- is precisely what it is. There are serious legal scholars, not all of them pro-life, who think Roe was poorly reasoned and wrongly decided -- that it essentially conjured the "constitutional" right to abortion out of thin air. Kerry was making an explicit promise not to nominate such people to the Supreme Court, no matter how sterling their credentials or how admirable their character or how compatible their views might be with Kerry's on other topics. That is a litmus test, however much Kerry might deny it.

But why deny it? Are judicial litmus tests really so bad? It seems to me that it's reasonable -- even desirable -- for a president to appoint judges who agree with him on important issues. Don't voters expect as much? Instead of denying the obvious, Kerry could have made it a mark of his commitment. "Sure it's a litmus test. That's because I don't want there to be any doubt where I stand: I will protect Roe v. Wade." If he had said that, I for one would have defended his frankness.

But frankness is rarely the Kerry way. And so he maintains that his position on abortion has nothing to do with politics. Rather, he says, it is simply a matter of defending "settled law" and fixed constitutional principles from reckless judges who might disturb them.

"Litmus tests are politically motivated tests," Kerry told reporters after his speech. "This is a constitutional right." His pro-choice zealotry, in other words, isn't political -- it is mandated by the Constitution.

That might make sense if Kerry were talking about an issue that supersedes political considerations, like the protection of trial by jury or the right of minorities to vote. He isn't. He's talking about a guarantee whose "constitutional" standing goes back only to 1973 and has been the subject of intense political controversy ever since. To Kerry, that makes no difference. Once the Supreme Court has decided a constitutional issue, he seems to believe, the subject is closed forever.

"I think people who go to the Supreme Court ought to interpret the Constitution as it is interpreted," he said, "and if they have another point of view, then they're not supporting the Constitution, which is what a judge does."

Read that again: If they have another point of view, then they're not supporting the Constitution. A Supreme Court justice who disagrees with an earlier court decision, Kerry is saying, violates his duty to uphold the Constitution. Accordingly, Kerry promises that any judge he nominates to the court will unswervingly follow Roe v. Wade -- and, presumably, every other constitutional precedent.

Well, if that's his standard, he is certainly justified in making support for Roe a litmus test. But by the same standard, a candidate for president in an earlier era would have been no less justified in making a litmus test of support for Plessy v. Ferguson (the Supreme Court case that upheld Jim Crow segregation) or Korematsu v. United States (which approved the World War II internment of Japanese-Americans) or Lochner v. New York (which, with its progeny, barred states from passing wage and hour laws). Take the Kerry standard literally and no Supreme Court decision could be overruled, no matter how pernicious it was later deemed to be.

Naturally, Kerry says that's not what he means. "John Kerry of course understands the evolving nature of American law and of constitutional interpretation," his spokeswoman told me. "Many, many Supreme Court decisions have been decided 'wrongly' as judged by contemporary sensibilities."

But he cannot have it both ways. If the Supreme Court sometimes -- let alone "many, many" times -- makes bad judgments and must later correct its blunders, he cannot insist that the holding in Roe is so sacrosanct, so immutable, that a justice who disputes it is by definition a traitor to the Constitution. Conversely, if members of the Supreme Court must never deviate from "the Constitution as it is interpreted," as Kerry said in Iowa, then they can never undo an odious decision or adapt the Constitution's text to a changed social landscape. Which is it?

Roe v. Wade is not going to be the last word on American abortion law any more than Dred Scott v. Sanford was the last word on the rights of blacks. John Kerry is free to embrace Roe and, if elected president, to nominate only judges who pledge to defend it. But he should acknowledge that in doing so, he is setting up a litmus test, one many voters will not like. For the one thing Roe is not "settled law," above and beyond politics. On the contrary, it remains to this day one of the most unsettled -- and unsettling -- political issues around.

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