Why Won’t Obama Give a Litmus Test?

Over at Politico, Roger Simon has a column that tries to puzzle out Obama’s opinion on abortion and Supreme Court nominees. Though Obama has been relatively clear about his stance on abortion during his campaign and during his presidency, with regard to nominating a justice for the Supreme Court, Simon writes:

"When it comes to Sonia Sotomayor, however, whom the president has appointed to a lifetime job on the U.S. Supreme Court, all is a mystery on the matter of abortion. The curtain has been drawn. The president did not ask her about abortion rights."

And Sotomayor explains:

"I was asked no question by anyone, including the president, about my views on any specific legal issue," Sotomayor told the Senate Judiciary Committee this week in response to a question about abortion."

Politically this makes sense, but beyond that, it’s baffling. How can the President possibly nominate a justice for a lifetime position on the Supreme Court without asking for their views on a single specific legal issue? I’m not just speaking of abortion here; I mean any legal issue. If this is true, it verges on Bush-level incompetence. 

Press secretary David Gibbs said that the "president doesn’t have a litmus test." The litmus test is a political metaphor, such that it dodges important questions under the guise of fairness. Clinton and Bush also used it. The metaphor is creative (a litmus test involves testingthe acidity of a solution by dipping litmus paper into it, which will turn the paper either blue or red) but it’s almost always used pejoratively, as if understanding the specific legal views of a judge – beyond what their records indicate – would somehow be harmful to the nomination process. The only person it might be harmful to is the politician nominating the judge; because the less controversy, the easier the nomination will go.

Maybe all of the dodging of specifics is a guaranteed way to sneak in a liberal judge. If this is true, it seems dishonest: why would Obama go to all the trouble of obfuscating these judicial viewpoints, when he was elected to answer to these very viewpoints?


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  • invalid-0

    Because the law as interpreted by the courts is supposed to be an independent branch of the government. A Supreme Court Justice should have proven his/her supreme legal competence, nothing more, nothing less. Of course, a Democrat will have a somewhat different view from a Republican on what constitutes supreme legal competence, and this will show in their choices. But they should definitely not ask a candidate about his/her view on certain issues. All recent candidates have rightfully refused to answer any such questions.

  • crowepps

    The reason you are puzzled is that you believe it would be perfectly proper for the Judge to announce ahead of time that in hypothetical cases concerning abortion that she would make this or that hypothetical ruling. The job she is actually interviewing for, however, is one in which she must apply present law and precedent as it stands to the SPECIFIC facts of a SPECIFIC case. Since that case is not yet before her, there is absolutely no way she could answer that question honestly.


    Judges who spend a lot of time giving speeches about or writing about a particular pet issue, asserting that their opinion on that issue is correct and that laws which disagree with it should be overturned, are demonstrating what is called ‘extrajudicial bias’ – in cases regarding that issue they have publicly declared that they have already made up their mind. This DISQUALIFIES them from sitting on that case.


    This might be clearer considering cases of jury misconduct – where the jurors did not make their decision on the basis of the evidence presented in the courtroom but instead used their unsupervised time in the evenings to drive out and see the site of the crime, or where one of the jurors told the others what a friend of his knew about the victim or defendant. In order to be fair to both sides in any trial, it is the DUTY of both judges and juries to enter each case with an open mind, to not allow their personal biases to affect their decision, and most particularly for judges, even if able to act in an unbiased manner to also not give the appearance of being biased.


    If Obama asked Sotomayer her position and she outlined her opinion of exactly which circumstances she thought justified abortion, any later decision would be tainted. The assumption would be that she had the decision all made before she walked in the door or heard the first word.