this is one of those fine subtleties of the deep mind of john mccain: if you support roe v. wade, you aren't "qualified," in his estimation.

no litmus test required, because to get to the litmus test, you have to be qualified in the first place.

yes, i know this is nonsensical.

IOKIYAR. QED.

The idea of no litmus testing for Supreme Court justices is a long-ago, quaint notion.

I agree with asl, this "no litmus test" thing is just dumb on its face. Of COURSE they'd have a litmus test on abortion, both of them. Rightly or otherwise, Roe is one of the primary reasons people are concerned about the makeup of the Supreme Court. It would be nice if we could stop pretending.

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.

I personally want to know what the justices' pH is.

Seriously, this is the worst metaphor in politics.

Of COURSE they'd have a litmus test on abortion, both of them. Rightly or otherwise, Roe is one of the primary reasons people are concerned about the makeup of the Supreme Court.

And not just abortion. What about a more obvious case, like Brown v. Board of Ed.? Neither McCain nor Obama would nominate a justice who spoke out against Brown, and rightly so; that position would in itself be proof that the person is not Supreme Court material.

If you're strongly pro-life, being pro-Roe is as bad as being anti-Brown. It's not as though there exists a platonic ideal of a justice (perhaps two parts strict constructionism, one part pragmatism?). The positions of a would-be justice on the major issues of the day (be they abortion, federal power, interpretation of civil rights legislation, etc.) are among the primary qualifications for nomination, in addition to the usual stuff about having gone to a fancy school.

What about the glaring contradiction between "no litmus test" and "elections have consequences"?

Sorry about the italics disaster above. Trying again.

Of COURSE they'd have a litmus test on abortion, both of them. Rightly or otherwise, Roe is one of the primary reasons people are concerned about the makeup of the Supreme Court.

And not just abortion. What about a more obvious case, like Brown v. Board of Ed.? Neither McCain nor Obama would nominate a justice who spoke out against Brown, and rightly so; that position would in itself be proof that the person is not Supreme Court material.

If you're strongly pro-life, being pro-Roe is as bad as being anti-Brown. It's not as though there exists a platonic ideal of a justice (perhaps two parts strict constructionism, one part pragmatism?). The positions of a would-be justice on the major issues of the day (be they abortion, federal power, interpretation of civil rights legislation, etc.) are among the primary qualifications for nomination, in addition to the usual stuff about having gone to a fancy school.

"But if not, it seems to me like a fairly big deal that McCain is publicly forswearing litmus tests but privately assuring leaders of the Christian Right that he'll have them."

Maybe it would be a big deal if McCain weren't lying constantly about his and his opponents positions, attacking lobbyists while employing dozens of them, and mocking the very concept of the health of the mother. As it is, I doubt anyone really cares at this point. He'll say anything.

Howard got it right: McCain last night flat-out said that he only wants qualified judges, and supporting Roe v. Wade means that you're unqualified. Obama laughed at that but didn't take it up (obviously, because his litmus test is just as strong).

yeah- my favorite part is that you don't actually have to go back and look at McCain's spotty record on the litmus test thing. When he's basically forced to answer the question a bit more clearly (just a bit) after trying to avoid it in his first answer, it goes like this:

SCHIEFFER: But even if it was someone -- even someone who had a history of being for abortion rights, you would consider them?

MCCAIN: 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.

Hahahaha! So... he would indeed perform a litmus test (using Roe v. Wade) as it's a deal-breaker for him. No matter the other qualifications of a judge, they would not be considered "qualified" by John McCain if they support Roe v. Wade! Nice try John. Don't think ya fooled anyone on that one.

But, gosh, I have to say, my respect for Obama (as an expert in constitutional law) really shot up after his succinct answer:

And I think that the Constitution has a right to privacy in it that shouldn't be subject to state referendum, any more than our First Amendment rights are subject to state referendum, any more than many of the other rights that we have should be subject to popular vote.

He just PERFECTLY summed up the human rights protections enshrined in the constitution that are meant to provide protection to minorities (our democracy was never meant to be "pure democracy" which is majority rule, but rather majority rule with protection of minority rights). Our constitutional rights are NOT meant to be at the discretion of either state government nor voters. If 85% of the electorate wakes up tomorrow and opposes the right to free speech, they shouldn't have the power to take it away from anyone because it's constitutionally protected.

Get a clue John. Please.

sorry- this part should've been in quotes obviously:

"And I think that the Constitution has a right to privacy in it that shouldn't be subject to state referendum, any more than our First Amendment rights are subject to state referendum, any more than many of the other rights that we have should be subject to popular vote."

In all fairness to McCain, given the slip ups he had during the debate, it is possible he meant that support for Roe v. Wade wouldn't be considered as a qualification, either way. Of course, someone would need to ask him. Don't hold your breath.

hmmm...I hate to admit it, but you may be right Jake. Darnit. Well, I guess we can still call him a buffoon for his utter lack of eloquence? ;-)

I think people are confusing a litmus test, which is a test "in which a single factor (as an attitude, event, or fact) is decisive", with necessary conditions.

Obviously, any litmus test is going to entail a near-infinitude of necessary conditions. For example, if I'm a baseball owner deciding on which free agent to sign, I may apply a litmus test: it must be likely that he will hit 40 homeruns next season. This entails lots of necessary conditions: the player must have arms, the player must be strong, the player must not be prone to injury, etc. But it's wrong to think that these necessary conditions constitute further litmus tests. For the baseball owner to not be applying a litmus, there would have to be other factors involved in his decision besides the 40 homeruns, factors that are on a par with it--like perhaps that he must have a certain on-base percentage, or must be a solid fielder.

So with regards to Supreme Court nominees, when a candidate says "blah blah blah strict constructionist", what it is supposed to mean is that many factors are taken into account: that the judge is intelligent, that he thinks the Constitution should be interpreted as it was in the 18th century, etc., as opposed to there being just one overriding consideration. But it is perfectly consistent for a candidate to be applying these multiple criteria, and yet there still be certain necessary conditions that, if unmet, would disqualify a potential pick: e.g., being in favor of Plessy v. Ferguson or wanting to overturn Roe.

What I don't understand is why candidates just don't flat out say: "Yeah, there's no litmus test, I'd nominate an intelligent strict constructionist. That said, I can't imagine any strict constructionist who wouldn't want to overturn Roe (or uphold Brown, etc). So yeah, I guess any nominee I choose would want to overturn Roe."