Failing the Test

The Media Research Center is trying to start a new meme: that conservatives have no interest in a "litmus test" on abortion for whomever President Bush names to the Supreme Court.

In criticizing an assertion made to that effect by CNN’s Bill Schneider, the July 5 MRC CyberAlert (credited to "Brent Baker in New Hampshire, based on articles by Tim Graham") responded: "Conservatives want a litmus test? Conservatives would say they want a judge to interpret strictly the text of the Constitution, and a pro-life stance may follow. That could be called a litmus test, but it's less explicit than the liberal approach."

Baker and Graham don't actually disprove Schneider's claim; their quibble seems to be with wording. In other words, conservatives do have a litmus test on abortion, but since Baker and Graham refuse to call it that, it's not really a litmus test.

MRC head Brent Bozell throws more rhetoric at the problem, as he is wont to do, in his July 6 column: "The most perverse form of media slant emerges when 'reporters' warn that conservatives have a 'litmus test' for nominees, implying liberals have never voted strictly on an ideological basis. ... In the first hours after O'Connor's retirement, CNN political analyst Bill Schneider was already implying only the right used a litmus test."

His evidence for claiming that conservatives don't have a litmus test? The fact that most Senate Republicans voted for President Clinton's two Supreme Court nominees, Ruth Bader Ginsburg and Stephen Breyer: "Those massive Republican majorities for Ginsberg and Breyer (and [attorney general Janet] Reno) ought to rebut the idea that Republican senators are 'litmus test' voters, but the media are a Ted Kennedy echo chamber -- boorish and predictable -- on this issue."

Bozell doesn't tell his readers that the reason most Republicans voted for Ginsburg and Breyer was because at the time of their nomination to the Supreme Court, they weren't considered flaming liberals the way that, say, Robert Bork and Clarence Thomas are flaming conservatives. In fact, Ginsburg and Breyer were viewed as moderates. Republican Sen. Orrin Hatch claimed in his autobiography that he suggested to Clinton that Ginsburg was an acceptable nominee that would easily pass the Senate. Ginsburg had also compiled a record on the U.S. Court of Appeals for the District of Columbia Circuit in which she frequently sided with undeniable conservatives such as Bork, Kenneth Starr and Laurence Silberman.

Breyer, meanwhile, was seen as having strong pro-business ties and was criticized by some Democrats for it; Sen. Howard Metzenbaum called Breyer a "moderate to conservative" judge.

Over at MRC-operated CNSNews.com, managing editor David Thibault claimed in a July 6 commentary that "If a litmus test is being applied to the next Supreme Court nominee, it's (Sen. Edward) Kennedy and his pals at NARAL Pro-Choice America who are applying it." He spent the rest of his commentary likening Roe v. Wade to the Dred Scott decision upholding slavery and claiming that Bush could "be the man who places us on the path to eventually eliminating the modern-day moral equivalent of slavery." But somehow, that's not a litmus test.

But even as the likes of Bozell, Baker and Graham try to put up the flimsy facade that conservatives don't do litmus tests, they're busy applying a litmus test to one potential justice candidate, Attorney General Alberto Gonzales.

A July 7 article on the MRC-operated CNSNews.com dredges up comments Gonzales made in 2003, such as the commonsense statement that "the Constitution is what the Supreme Court says it is" and, more to the point, that the legal concept of stare decisis (following legal precedent) applies in cases involving the Roe v. Wade decision on abortion. The only reason to highlight these comments, of course, is that conservatives like Bozell, Baker and Graham don't want stare decisis on abortion -- they want it reversed. They are disingenuous in saying that "a pro-life stance may follow" those who share their judicial philosophy; they demand a pro-life stance.

In the same CyberAlert that pushed the make-believe no-litmus-test meme, Baker and Graham look disapprovingly on the idea of "picking Attorney General Alberto Gonzales as a consensus choice," suggesting that Miguel Estrada, the failed Bush judicial nominee, would be a better choice if Bush wants a Hispanic justice, because he, unlike Gonzales, "has not voted against parental-notification laws for abortions."

(Baker and Graham are referring to Gonzales' votes on parental notification laws while on the Texas Supreme Court in opposition to fellow justice (and newly minted federal judge) Priscilla Owen, who was engaging in what Gonzales called "an unconscionable act of judicial activism" by refusing to grant any judicial bypasses to the Texas law, which the Texas legislature did not intend.)

A July 7 CyberAlert, meanwhile, derided Gonzales as "the media's favored pick." And a July 8 CNS commentary by Judie Brown of the American Life League claimed that "Gonzales' record on abortion, for instance, is most suspect indeed."

(Update: The MRC may be seeing the futility of their ways and has decided to stop pretending. A July 12 CNS article by Susan Jones is headlined "Abortion Is Litmus Test for the Right and the Left.")

The MRC isn't the only ConWeb component cutting down Gonzales. NewsMax reported the comments of Manuel Miranda (last seen stealing other people's e-mail) threatening retribution against Republicans if Gonzales is selected and also ran an Associated Press article noting that Gonzales "is considered too moderate by right-wing Republicans." (The article also repeats erroneous comments by Texas Sen. John Cornyn that Ginsburg was never asked about her views on abortion during her confirmation hearing.)

At WorldNetDaily, Joseph Farah said Gonzales "would be a disaster" and a "worst-case scenario," adding: "Might as well let the American Civil Liberties Union name the next justice." Columnist Kelly Hollowell points out that "Gonzales supports abortion, specifically, Roe v. Wade."

If conservatives don't have a litmus test for judicial nominees, why is Gonzales getting a failing grade?