What the candidates didn't say about judicial appointments.

I had the impression that Bush was asked whether he had a "litmus test" about Roe v. Wade for judicial appointments--in fact, in my live-blogging, I faulted Kerry for not answering the question whether he had a litmus test---but I see that it was Bush who took the question "would you like to [overturn Roe v. Wade]?" and rephrased it: "What he's asking me is, will I have a litmus test for my judges?" Bush answered his own question so quickly that Kerry, asked to respond got confused about how much time he had to answer.

Bush could easily give a negative answer the question as he rephrased it into "litmus test" form: "I will pick judges who will interpret the Constitution, but I'll have no litmus test." This hides the ball (very much the way judicial candidates themselves hide the ball). Decent judicial candidates that are opposed to Roe v. Wade have their opposition integrated into a coherent theory of constitutional interpretation. Bush must pick good judges, not one-issue anti-abortion types, so anyone with a chance at confirmation would be someone who would be presented as a well-qualified constitution interpreter. The antagonism to Roe would exist within a theory of constitutional interpretation. I presume Bush would pick judges with the sort of approach to interpretation that excludes Roe v. Wade.

Kerry gave more of an answer about judicial appointments than I gave him credit for last night. he said:

I'll answer it straight to America. I'm not going to appoint a judge to the court who's going to undo a constitutional right, whether it's the First Amendment, or the Fifth Amendment, or some other right that's given under our courts today -- under the Constitution. And I believe that the right of choice is a constitutional right.

So I don't intend to see it undone.

Clearly, Kerry wanted to send voters the message that his judicial appointees will uphold the abotion rights and Bush's will not. Like Bush, though, he presents his position in terms of wanting to appoint solidly qualified interpreters of the Constitution. But, of course, his appointees will be ones who follow a different approach to constitutional interpretation. Kerry expresses an interest in preserving the rights that have already been found in the Constitution. He says he doesn't want any rights "undone" and he states his own commitment to abortion rights. But Kerry still doesn't answer the "litmus test" question: he says he does not want judges to erode rights, but that elides the question of how a judge determines what rights are. Kerry says that he himself believes in the right to choose, but he doesn't say whether he would need to be assured that a judicial candidate shares his belief that that right is part of the Constitution. What if there were a judicial candidate committed to the enforcement of the rights that really inhere in the Constitution? Would that be enough for Kerry? I can't imagine that it would.