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Giuliani Needs This Litmus Test

By Mark Davis

Earlier this month, Republican front-runner Rudy Giuliani was speaking to reporters in New Hampshire on topics causing clear hesitation among possible supporters: abortion and his devotion to appointing Supreme Court justices who will not legislate from the bench.

The handy term for that kind of justice is "strict constructionist," suggesting a desire to respect the intent of the founding fathers rather than bend to modern sensibilities.

Is it plausible that Mr. Giuliani, an abortion-rights supporter, can recognize that the place for the abortion battle is in the 50 state capitals once Roe vs. Wade is properly overturned by an originalist Supreme Court?

Sure, it is. But when the subject arises, he chooses to keep countless voters befuddled with pronouncements like this on July 18:

"The abortion question is not a litmus test. Roe against Wade is not a litmus test. No particular case is a litmus test. That is actually - this is my humble opinion, as somebody who has practiced in the federal courts, even argued before the Supreme Court. That's not the way to appoint a Supreme Court justice or any judge. Any really good candidate for judge, when you ask him that question, will tell you, 'I don't know the answer to that question, and I will not know the answer to that question until I hear the arguments in the case.'"

One of the changes in 21st-century politics may be that statements like this are just plain archaic. Gone are the days when nominees for our highest courts can play coy games when asked valid questions that have answers. Today, the question can be fairly asked: What exactly is wrong with litmus-test questions?

I remember the moment when everything changed. Sixteen years ago, Clarence Thomas sat with a straight face and told Senate questioners that he had never casually discussed the issue of abortion.

I talked back to the TV: "Why not tell them," I asked rhetorically, "whether you think Roe vs. Wade is good law or bad law? What better window to your judicial logic?"

But I knew the answer then, and I know it now: An answer could have been professional suicide. In the year of the Roe decision (1973), America was ghoulishly cavalier about terminating life in the womb, with abortion earning strong public approval clear through the second trimester, up to the point of fetal viability. A generation later at the Thomas hearings, the Reagan revolution had increased sensitivity to the rights of the unborn, but Mr. Thomas still chose to play it safe.

Today, many discussions of Roe focus not on whether it will fall, but when. The pro-life movement has won vast successes in sparking awareness of just what abortion is and in pointing out that it was a sizeable logical leap to fashion such a right from the words of the Constitution.

Maybe the next nominee will be courageous enough to say Roe vs. Wade is a judicial error that must be righted. Or, for that matter, maybe the nominee will defend it. Just so we get an answer. There is no longer any reason to deny us one.

On issues that are still vague, or rulings that are recent, anyone can see why a nominee would hesitate to offer definitive answers. I would not expect clear-cut replies on most matters.

But anyone who comes across as agnostic on Roe vs. Wade today is either evasive or obtuse. So let us welcome litmus tests when they are called for.

Legal scholars have expressed fear that judges who issue rulings that seem to contradict their past confirmation hearing answers risk damaging the credibility of the bench.

Has anyone noticed that the credibility of our courts has been under fire for decades? If anything, some honest answers from judicial nominees would bolster, not erode, trust. Nominees sensing an issue that is less than concrete may always decline to answer on those occasions.

But 34 years after its curious hatching, Roe vs Wade is no longer one of them. Mr. Giuliani can talk all day about favoring strict constructionist nominees, but words have meaning. It is not possible to be a strict constructionist without seeing Roe as a sham. Bring on the litmus tests.

Mark Davis is a columnist for the Dallas Morning News. The Mark Davis Show is heard weekdays nationwide on the ABC Radio Network. His e-mail address is mdavis@wbap.com.

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