Kerry Justice
Litmus testing.


Ramesh Ponnuru

When is a litmus test not a litmus test? When John Kerry says it isn’t.

The Massachusetts senator just announced that if he ever has the chance to nominate a Supreme Court justice, he will make sure that justice pledges to uphold Roe v. Wade.

Here’s Glen Johnson in the Boston Globe: “In making his pledge about Supreme Court nominees, Kerry denied he was establishing his own litmus test, an accusation that congressional Democrats routinely level against Republicans who say they favor appointing only judges who oppose abortion.” Very few Republicans say any such thing, by the way, but never mind.

Johnson continues,

The difference, Kerry said, is that Roe v. Wade has become settled law since the court rendered the decision in 1973 and now defines a constitutional right.

’’Let me just say to you: That is not a litmus test,’’ Kerry told about 85 women who turned out to listen to him over a continental breakfast in Des Moines. “Any president ought to appoint people to the Supreme Court who understand the Constitution and its interpretation by the Supreme Court. In my judgment, it is and has been settled law that women, Americans, have a defined right of privacy and that the government does not make the decision with respect to choice. Individuals do.”

In an interview after the speech, Kerry added: “Litmus tests are politically motivated tests; this is a constitutional right. I think people who go to the Supreme Court ought to interpret the Constitution as it is interpreted, and if they have another point of view, then they’re not supporting the Constitution, which is what a judge does.”

He contrasted support for Roe v. Wade “because it is a constitutional right” with Republican demands that judicial nominees oppose abortion rights. “They’re trying to undo a constitutional right,” he said. “That’s the difference.”

I have no objection to litmus tests per se, but there are (at least) two problems with Kerry’s explanation. The first is that whether abortion is in fact “a constitutional right” is precisely what is at issue in the debate. Kerry is making adherence to a controversial view of the Constitution’s demands into a prerequisite for nomination: i.e., he’s imposing a litmus test. Saying that Roe is a settled precedent does not get around that problem. The second is that if Kerry really means that Supreme Court nominees have to be committed not only to the Constitution but to the Court’s existing interpretations of it, he is saying that he would never appoint a justice who would vote to overrule a previous constitutional decision of the Supreme Court. Dred Scott, Plessy v. Ferguson, Korematsu, Bowers v. Hardwick: They would all be the law forever. That’s quite a platform for a Democrat.