Opinion> Roger Simon> Don T Ask Don T Tell 2009 07 17

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Don't Ask, Don't Tell

Have any doubt about where Barack Obama stands on abortion rights? You shouldn't.

During last year's presidential campaign, Obama said he would make "preserving a woman's right to choose under Roe v. Wade a priority as president."

Just three days after taking his oath of office, he lifted a ban on U.S. funding for international groups that promote or perform abortions. And this week, Obama named a surgeon general, Dr. Regina Benjamin, who, according to a White House spokesman, "supports the president's position on reproductive health issues."

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 when it comes to abortion. The curtain has been drawn. The president did not ask her about abortion rights.

And this is not because Sotomayor's position on abortion is so well known. On the contrary. As NPR's Nina Totenberg put it, Obama "managed to nominate a judge to the U.S. Supreme Court who has no record on the issue."

"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.

White House press secretary Robert Gibbs backed her up. "The president doesn't have a litmus test, and that question was not one that he posed to her," Gibbs said.

Abortion is a very serious issue, affecting the lives of millions of Americans, but when it comes to picking a Supreme Court nominee, presidential candidates and presidents invoke the "no litmus test" standard as if it were carved in stone.

(For those who have forgotten their high school chemistry, a piece of blue litmus paper turns red when placed in an acid solution, and a piece of red litmus paper turns blue when placed in an alkaline solution. Why place pieces of paper in solutions? Hey, it's high school.).

At the third presidential debate at Hofstra University on Oct. 15 last year, CBS's Bob Schieffer asked both candidates, "Could you ever nominate someone to the Supreme Court who disagrees with you on Roe v. Wade?"

John McCain replied: "I would never, and have never in all the years I've been there, imposed a litmus test on any nominee to the court. That's not appropriate to do."

Obama said: "Well, I think it's true that we shouldn't apply a strict litmus test, and the most important thing in any judge is their capacity to provide fairness and justice to the American people."

But Obama went on: "It is very likely that one of us will be making at least one and probably more than one appointments, and Roe vs.

Wade probably hangs in the balance. I will look for those judges who have an outstanding judicial record, who have the intellect and who hopefully have a sense of what real-world folks are going through."

Which was code for: Vote for me if you don't want Roe overturned!

Obama did not want to say that directly. Because that would violate the litmus test.

Only one major candidate I know of dared (briefly) to take on the litmus test. On April 5, 1992, presidential candidate Bill Clinton said, "I will appoint judges to the Supreme Court who believe in the constitutional right to privacy, including the right to choose."

On June 30, Clinton expanded on this by saying: "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 of PBS asked Clinton: "Will you see to it if you're elected … your first appointee (to the Supreme Court) will be a strong supporter of Roe v. Wade?"

"Yes," Clinton replied.

"Is that not a litmus test?" Moyers asked.

"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."

So Bill Clinton had a litmus test, and he was going to use it. Then something happened: Clinton got elected.

And at his first formal news conference in March 1993, 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."

And so the litmus test was off.

But why? Judges are independent and free to respond to new arguments, grow and mature, and even change their minds. But why can't they be asked how they feel about important matters right now?

Before nominating her, did Obama speak in coded terms to Sotomayor about her views on "privacy" and other general matters? Probably. But why leave such an important decision to code? Why the mystery? Why the guessing games?

When it comes to interviewing potential Supreme Court nominees, presidents ought to get the facts. They ought to speak up, not dummy up.

To find out more about Roger Simon, and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at www.creators.com.