Will a Republican president ever again name a non-stealth conservative to the U.S. Supreme Court? Or will liberal Democrats succeed in imposing not one, but two litmus tests on Supreme Court nominations?
The first prospective litmus test is that Democratic presidents, deferring to the liberal base of the Democratic Party, will name only publicly pro-abortion justices to the Supreme Court. The second prospective litmus test is that Republican presidents, preferring to avoid a major political brawl with the liberal base of the Democratic Party (and their allies in the liberal media), will name only stealth nominees.
If these two litmus tests are institutionalized, the liberal base of the Democratic Party will retain significant influence over the nomination of Supreme Court justices no matter which party controls the White House and no matter which party controls the Senate.
Contrast the way President Clinton replaced retiring Justice Byron White when the Democrats controlled the Senate in 1993 with the way President Bush has moved to replace retiring Justice Sandra Day O'Connor when the Republicans control the Senate today.
White, a Democrat appointed by President Kennedy, was one of only two justices who dissented from the 1973 Roe v. Wade decision, which created a right to abortion. When White retired, Clinton and Republican Sen. Orrin Hatch of Utah, then ranking Republican on the Judiciary Committee, agreed that at least one thing was inevitable: White's successor would be pro-abortion.
When he nominated former ACLU lawyer Ruth Bader Ginsburg, Clinton declared, "She is clearly pro-choice." Hatch said: "There's no question, I'm pro-life, she is pro-choice. … But the president said he's going to have that litmus test, so that's a given as far as I'm concerned."
Hatch even called Ginsburg "an excellent choice."
At her confirmation hearing, Ginsburg delivered for Clinton. "This (the decision to have an abortion) is something central to a woman's life, to her dignity," she said. "It's a decision that she must make for herself. And when government controls that decision for her, she's being treated as less than a fully adult human responsible for her choices."
Only three Republican senators voted against Ginsburg: Jesse Helms of North Carolina, Don Nickles of Oklahoma and Bob Smith of New Hampshire. All are now retired.