In the opening pages of my book No Litmus Test, I noted that while Presidents and Presidential candidates commonly say they will not impose a "litmus test" for Supreme Court nominees, this is clearly false. Surely all Presidents would impose a litmus test barring otherwise qualified nominees who thought that Brown v. Board should be overruled. Indeed, most informed observers think that Presidents will now impose litmus tests on abortion, the issue it is meant to refer to. To be sure, they may not always succeed: A Republican President with a strongly Democratic Senate will sometimes pick a candidate who is squishy on overruling Roe v. Wade, but that's a matter of pragmatic politics or incomplete screening, not preferences.
Nonetheless, in Wednesday night's debate, both Senators McCain and Obama said they would impose no litmus test, even as each pretty strongly indicated he would. McCain's answer, to be sure, was practically word salad. Asked point blank in a follow-up by Bob Schieffer whether, as President, McCain would consider nominating "someone who had a history of being for abortion rights," McCain answered: "I would consider anyone in their qualifications. I do not believe that someone who has supported Roe v. Wade that would be part of those qualifications. But I certainly would not impose any litmus test."
Let's try to deconstruct that. The first sentence presumably means something like "I would be willing to take a look at anyone who had the requisite professional, i.e., non-ideological, qualifications, such as demonstrated excellence in the law and judicial temperament." The point is awkwardly put, to be sure, but I think McCain's meaning is reasonably clear. Now comes the tricky sentence: "I do not believe that someone who has supported Roe v. Wade that would be part of those qualifications." This appears to mean that whether someone has supported Roe is not a matter of professional qualifications, and that therefore, yes, McCain would consider nominating an otherwise professionally qualified person who had supported Roe. This is complicated, however, by the fact that the following sentence begins with "But," which suggests that McCain's intention not to apply a litmus test cuts against what he has just said in the middle sentence. That makes no sense if the middle sentence means that McCain would be willing to appoint a Roe supporter. Hence, it seems plausible to read the middle sentence to mean something like the opposite of what we first think it means, namely: I wouldn't reject someone who supported Roe on professional qualifications grounds, but that support would count against him or her on other, ideological grounds. Read this way, the final sentence simply means that while prior support for Roe is very damaging to a candidate for nomination, it is not completely disqualifying.
Thus, taken as a whole, McCain's three sentences should probably be read to say:
1) The first step in my screening process for Supreme Court nominees will be to look for professionally qualified people.
2) Prior support for Roe is not disqualifying in this first step, although it will count heavily against a potential nominee in a subsequent, ideological step.
3) The ideological step, however, is not a "litmus test," i.e., it is theoretically possible that someone could be so well qualified along every other dimension that I would nominate him or her notwithstanding prior support for Roe.
This reading of McCain gains further support from what he said in another portion of the discussion of Supreme Court nominations. He noted that whereas Obama had voted not to confirm Justices Roberts and Alito, he, McCain, had voted to confirm Justices Ginsburg and Breyer. McCain thereby probably scored some points to the effect that Obama is a down-the-line liberal whereas McCain is a moderate. But McCain then undermined this point by couching it as a disagreement over the role of the Senate. "Elections have consequences," he said (twice), and Senators should vote to confirm President's choices regardless of ideological disagreements, so long as the nominees are professionally qualified.
There is an internal contradiction here. If elections have consequences, presumably SENATE elections also have consequences and so, as Obama and others (especially Chuck Schumer) have argued, Senators can take account of ideology too. But let's put this issue aside. The main point McCain was making was that the PRESIDENT is the one who, as a consequence of winning the Presidency, gets to consider ideology in deciding whom to nominate to the Supreme Court. And so we circle back to the original question. Why wouldn't McCain, as President, narrow the field of superbly qualified individuals by seeking those who share his "strict constructionist" philosophy and therefore would likely overrule Roe? The answer is that he would do just this.
I am pretty confident that I have unraveled what McCain meant to say but it's noteworthy how much work it takes to do so. Possibly that's because McCain's much-ballyhooed "straight talk" is actually quite circuitous. In Wednesday's debate, he twice pointed to Obama's "eloquence" as a way of saying that people should not be fooled by what they think they hear, but in fact Obama's sentences are much more straightforward than McCain's.
Another possibility is that McCain was deliberately speaking in code on the abortion/Supreme Court issue. Moderates would be comforted by his renunciation of a litmus test while the conservative base would know that, when push comes to shove, he would likely apply one.
Posted by Mike Dorf