Litmus test for court fades as Clinton changes tune

ROGER SIMON

March 28, 1993|By ROGER SIMON

Bill Clinton is a man who picks his words with such extreme, lawyerly care, that one must pay close attention to them. Especially when they begin to change.

During his campaign for the presidency, Clinton made clear his Supreme Court nominees would have to support a woman's right to choose whether to have an abortion.

On April 5, 1992, Clinton said: "I will appoint judges to the Supreme Court who believe in the constitutional right to privacy, including the right to choose."

While the right to privacy is not explicitly mentioned in the Constitution, the Supreme Court has invoked it to allow women to have abortions under certain circumstances, to allow parents to send their children to private schools and to allow people to be removed from respirators when they have no chance for recovery.

The "right to choose" is a single-focus concept. It refers to the right of a woman to choose the option of having an abortion.

And when he was a candidate, Clinton was careful to link the right to privacy and the right to choose so nobody would misunderstand him.

On June 30, 1992, Clinton said: "I think a judge ought to be able to answer a question in a Senate hearing: 'Do you or do you not support the right to privacy, including the right to choose?' "

A week later on July 7, Bill Moyers interviewed Clinton on PBS and endeavored to make sure that not only Clinton but everybody else understood exactly what Clinton was saying.

"Will you see to it," Moyers asked, "if you're elected . . . your first appointee [to the Supreme Court] will be a strong supporter of Roe vs. Wade?"

"Yes," Clinton replied.

"Is that not a litmus test?" Moyers asked, since it was the stated practice of prior presidents to avoid litmus tests.

"It is, and it makes me uncomfortable," Clinton replied, "[but] I would want the first judge I appointed to believe in the right to privacy and the right to choose."

But that was then; this is now.

Now Bill Clinton is actually getting ready to choose his first Supreme Court nominee. And is Clinton sticking to his guns on abortion?

You decide. At Clinton's first formal news conference last week, he was asked by a reporter: "Mr. President, during the campaign you gave some pretty strong indications that [in choosing] your Supreme Court nominee, you would certainly consider their position on abortion. Is that still the case?"

"Thank you for asking," Clinton said, "because I want to emphasize what I said before: I will not ask any potential Supreme Court nominee how he or she would vote in any particular case. I will not do that."

But is that really what Clinton said before? Go back and read his exchange with Bill Moyers and decide for yourself.

At the news conference, Clinton continued: "But I will endeavor to appoint someone who has certain deep convictions about the Constitution."

Well, I guess that eliminates Saddam Hussein, but it really doesn't say much.

Then Clinton went on: "And I strongly believe in the constitutional right to privacy. I believe it is one of those rights embedded in our Constitution, which should be protected."

But what happened to the right to choose? Clinton had always linked the two before. And, as I noted above, the right to privacy is not synonymous with the right to choose.

So one reporter tried to really pin Clinton down.

"Given what you just said about the right to privacy," the reporter asked, "do you think it's appropriate, and will you or members of your administration, be asking potential nominees if they support the right to privacy and whether they think that right includes the right to abortion?" (Italics added.)

But -- surprise, surprise -- this was no longer a question Bill Clinton wanted to answer.

"I will not ask anybody how they will vote in a specific case," Clinton replied again. "I will endeavor to appoint someone who has an attachment to, a belief in a strong and broad constitutional right to privacy."

What happened to the right to choose? What happened to Clinton's pledge to see to it that his first nominee would support Roe vs. Wade?

Gone.

Bill Clinton picked his words with extreme care when running for president. But that doesn't necessarily mean he's going to stick by every one of them now that he is president.

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