No pressing Leahy on his liberal litmus test

Yesterday on CNN's <i>Inside Politics</i>, host du jour Candy Crowley essentially got Senator Patrick Leahy (D-VT) to confess his litmus test on abortion for Supreme Court nominees, but didn't press him on the matter, despite <a href="http://www.mrc.org/cyberalerts/2005/cyb20050705.asp#2">her colleague Bill Schneider last week</a> asserting that only conservatives, not liberals, have a litmus test stance on abortion.

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Crowley inquired: "And could you support a conservative judge who believes that Roe v. Wade was not based on constitutional rights?"

Leahy responded: "Well, I don't think you're going to see somebody saying that, because it is such settled law. I can't imagine somebody coming in, for example, and saying, ‘Well, wait. I disagree with Brown versus Board of Education. It's not based on constitutional principles. The Warren court overreached itself with that.’ Can you imagine with settled law like Brown if somebody wanted to overturn it? It's the same thing with Roe versus Wade. I don't think you're going to see a justice who is going to be nominated whose intent is to overturn Roe versus Wade or any other type like Brown versus Board of Education, something else that is so settled. And if there was somebody with that as their avowed purpose, the Senate would not approve them.”

Crowley then attempted to see if Leahy was fine was judges who didn't view Roe as granting an unlimited right to abortion, without restrictions: "But you know that you can look at the records of judges and see, in fact, when they have ruled sort of one way toward more restrictive abortion rights or less restrictive abortion rights. If you saw a record that pointed you toward someone who sat on the bench who felt that Roe versus Wade needed to be restricted, could you support that candidate?"

Leahy dodged, using the Roe ruling for cover: "If I thought somebody wanted to overturn settled law like that, no, I could not."

Crowley left the matter there and moved on to ask Leahy about the notion of naming Sandra Day O'Connor as a consensus Chief Justice were William Rehnquist to retire.

Last week, as reported in the <a href="http://www.mrc.org/cyberalerts/2005/cyb20050705.asp">July 5 CyberAlert</a>, CNN's Bill Schneider asserted that only conservative Republicans have a litmus test on abortion when considering justices for the Supreme Court.:

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At about 11:20am EDT, the MRC's Ken Shepherd passed on that CNN political analyst Bill Schneider noted O'Connor was an important vote in favor of abortion, adding about the next justice: "One question is, will the nominee be willing to say whether he or she would vote to uphold or overturn Roe v. Wade. Is that a fair question? Should there be a litmus test? A lot of conservatives say they want to know that before they'll go along with President Bush's nominee."

Schneider returned to his only-conservatives-have-a-litmus-test talk about a half-hour later, as he touted a recent Gallup/USA Today/CNN poll: "What we see here is that by better than two-to-one Americans say they want a justice who would uphold the Roe versus Wade decision. Now, that is likely to be the center of any confirmation battle. Principally because conservatives are pressuring the White House to name a judge who is not just the conservative but one whose position opposed to Roe v. Wade is known. That's the so-called litmus test. They want to know that this is a justice who will vote to overturn Roe v. Wade. And, as you can see that's a minority position. That is what would make this confirmation hearing enormously controversial."

But he wasn't done yet. During Inside Politics in mid-afternoon, Schneider went one better, explicitly suggesting Ted Kennedy opposed litmus tests. Over a graphic reading "A Litmus Test," Schneider explained: "Conservatives want President Bush to nominate a justice who will cast what could be the deciding vote against that right. And they want to know that up front, before the Senate confirmation vote. Their cry is 'no more David Souters.' Souter, nominated by the first President Bush in 1990, did not define his position on abortion. Conservatives were outraged when he turned out to support abortion rights. Many liberals denounce the idea that a nominee should have to pass a litmus test on the abortion issue."

Senator Edward Kennedy: "I don't set up a litmus test for any particular nominees. I have voted for judges which have been pro-life."

Schneider also played a snippet of Kennedy's infamous "Robert Bork's America" speech from 1987, albeit quite sanitized. While the Gallup poll showed pro-life voters were more intense about the court fight than pro-abortion voters, Schneider insisted "when abortion rights supporters feel their rights are being threatened, they have shown that they can rally, as they did against the nomination of Robert Bork in 1987."

Edward Kennedy clip from July 1, 1987: "In Robert Bork's America, there is no room at the inn for blacks, and no place in the Constitution for women."
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Ken Shepherd
Ken Shepherd
Ken Shepherd is the Managing Editor for NewsBusters