In the last debate, the candidates were asked if they would consider nominating someone to the Supreme Court who supported abortion rights. In a sentence that would grammatically make Palin proud, he responded, "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."
Luckily, Mike Dorf is here to untangle that mess.
Let’s try to deconstruct that. The first sentence presumably means
something like "I would be willing to take a look at anyone who had the
requisite professional, i.e., non-ideological, qualifications, such as
demonstrated excellence in the law and judicial temperament." The point
is awkwardly put, to be sure, but I think McCain’s meaning is
reasonably clear. Now comes the tricky sentence: "I do not believe that
someone who has supported Roe v. Wade that would be part of those qualifications." This appears to mean that whether someone has supported Roe is
not a matter of professional qualifications, and that therefore, yes,
McCain would consider nominating an otherwise professionally qualified
person who had supported Roe.
This is complicated, however, by the fact that the following sentence
begins with "But," which suggests that McCain’s intention not to apply
a litmus test cuts against what he has just said in the middle
sentence. That makes no sense if the middle sentence means that McCain
would be willing to appoint a Roe supporter.
Hence, it seems plausible to read the middle sentence to mean something
like the opposite of what we first think it means, namely: I
wouldn’t reject someone who supported Roe on professional
qualifications grounds, but that support would count against him or her
on other, ideological grounds. Read this way, the final sentence simply means that while prior support for Roe is very damaging to a candidate for nomination, it is not completely disqualifying.Thus, taken as a whole, McCain’s three sentences should probably be read to say:
1) The first step in my screening process for Supreme Court nominees will be to look for professionally qualified people.
2) Prior support for Roe is
not disqualifying in this first step, although it will count heavily
against a potential nominee in a subsequent, ideological step.
3)
The ideological step, however, is not a "litmus test," i.e., it is
theoretically possible that someone could be so well qualified along
every other dimension that I would nominate him or her notwithstanding
prior support for Roe.
That should be a noncontroversial opinion. At minimum it’s pretty it’s pretty mainstream, right-of-center Republican. So why is McCain putting it so badly, i.e., incoherently? Is that too far left for the base that’s always kind of hated him? Is it too far right for the three morons left in the world who still think he’s a "maverick"?
Accidental Blogger 
2 responses to “Straight Talk (Joe)”
I’m inclined to read the second sentence to suggest McCain believes support for Roe v. Wade is a disqualifying factor, period. In the first sentence, “qualifications” has a neutral significance, meaning something like “criteria according to which I would judge a candidate’s potential.” By sentence two, the significance has slipped: it now means “positive characteristics with respect to jurisprudential ideology,” of which support for Roe is a clear negative for McCain. Even so, he would not “impose a litmus test,” i.e., confront the candidate with a demand to admit or deny support. The third sentence, in other words, is no great concession.
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You might be right. But it’s not clear to me that “imposing a litmus test” means what you’re saying (confront candidate with a demand to take a position) rather than just that it’s a disqualifying factor. In which case, the third sentence may or may not be a great concession but it would certainly contradict the second sentence.
To me, the interesting thing about this is the Palinesque language: McCain certainly seems to be trying to get credit with the base by saying he’ll appoint judges who are likely to overturn Roe, while at the same time trying to get credit with mainstream people by saying he’s not going to reject judges simply because they will not overturn Roe.
(I would note that it’s probably possible to predict, with a fair degree of accuracy, whether a judge will overturn Roe, regardless of whether the judge is asked that question or is willing to answer that question. Someone with a jurisprudential philosophy and temperament like Scalia’s will overrule it. Someone who tends to seek compromises and supports public majority preferences, like O’Connor or Breyer, will not — especially if they’re concerned with women’s rights. Even someone who’s reliably conservative but at all cautious — Roberts or Alito — would probably chip away at it in pretty much all cases but not actually overrule the right altogether.)
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