There’s a scene in the movie “Three Amigos” in which a leader of Mexican bandits chastises one of his minions for using the word “plethora” while not knowing what the word means (watch it here). I thought about that scene again yesterday when I read about President Obama’s promise not to apply a “litmus test” to judicial appointments. It sounds like the President doesn’t know what a “litmus test” is. Here’s how the New York Times reports it:
In response to a reporter’s question, Mr. Obama reiterated his support for abortion rights, but said he would follow the time-honored answer of presidents from both parties in saying that no single issue would determine his selection.
“I don’t have litmus tests around any of these issues,” he said, “but I will say that I want somebody who is going to be interpreting our Constitution in a way that takes into account individual rights and that includes women’s rights and that is going to be something that is very important to me.” He added that the Constitution, in his view, guarantees privacy rights, including “bodily integrity,” the underpinning to the court’s Roe v. Wade decision legalizing abortion.
The President says that he won’t have a litmus test, yet he insists that he wants somebody who supports abortion rights. Unless I’ve missed something, this is a litmus test. A litmus test by definition is “a crucial and revealing test in which there is one decisive factor.” Abortion rights are a decisive factor in Obama’s thinking about judicial appointments, ergo, he has a litmus test. No doubt, therefore, the talk about “litmus tests” is just rhetoric.
The truth of the matter is that every President has a litmus test on this issue, whether they admit it or not. The question is whether such decisive single-issues are worth the weight that are given to them. No President would want a Supreme Court Justice who wished to reinterpret the fourteenth amendment so as to legalize chattel slavery in America. That one single issue would be decisiveâ€”indeed it would be a litmus testâ€”because the vast majority of Americans feel so strongly that it’s unconscionable to enslave human beings. Most Americans would insist that their President apply a litmus test in such cases.
The problem with Supreme Court appointments is not litmus tests per se, but with the inability of Americans to agree which litmus test is the correct one. Pro-choice Americans believe that the litmus test should be to find justices that will uphold Roe v. Wade. Pro-life Americans believe that the litmus test should be to find justices that would overturn it. There is no middle ground on this question, and Presidents know it. Make no mistake. President Obama will have a litmus test, and it won’t be the right one.