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Mitt Romney declares anti-gay litmus test for judicial appointments

Timothy Kincaid

August 4th, 2011



NOTE: The header, which originally said “Mitt Romney declares anti-gay litmus test for Supreme Court nominees”, was revised for accuracy.

The National Organization for Marriage is bragging that Republican presidential candidates Michele Bachmann, Rick Santorum, and Mitt Romney have signed their pledge:

I, ______________, pledge to the American people that if elected President, I will:

One, support sending a federal constitutional amendment defining marriage as the union of one man and one woman to the states for ratification.

Two, nominate to the U.S. Supreme Court and federal bench judges who are committed to restraint and to applying the original meaning of the Constitution, appoint an attorney general similarly committed, and thus reject the idea our Founding Fathers inserted a right to gay marriage into our Constitution.

Three, defend the federal Defense of Marriage Act vigorously in court.

Four, establish a presidential commission on religious liberty to investigate and document reports of Americans who have been harassed or threatened for exercising key civil rights to organize, to speak, to donate or to vote for marriage and to propose new protections, if needed.

Five, advance legislation to return to the people of the District of Columbia their right to vote on marriage.

Most of this is just a declaration of personal anti-gay animus and is neither a pledge of intent or likelihood.

There is almost no chance at all that two-thirds of each house of Congress would vote for a Federal Marriage Amendment and that likelihood decreases significantly with each passing year. By the time that the 2013-2017 Presidential term begins, it doesn’t matter what a President might “support”, it isn’t going to happen.

Also by that time, it is likely that the constitutionality of DOMA3 will have progressed out of the initial federal court hearings and on to appeal. And having declined to defend the law, the Justice Department cannot decide to step in and resume authority once a new Attorney General is in the office. At most, the Attorney General could file an amicus brief, which any of these nominees could do on their own today.

As for establishing a presidential commission to look at how gays are harassing and threatening homophobes, that would be political suicide. Not only would it appear to oh, just about anyone, as homophobic and an abuse of power, but it would be embarrassing to NOM when the commission released its report. The boycott of El Coyote may sound like a “threat” to NOM’s target audience, but “the gays didn’t eat there after the owner gave to Prop 8″ is going to sound like a statement of the obvious to the rest of the country.

Equally stupid would be an effort on the part of the federal government to interfere with the District’s Human Rights Act so as to exclude gay people. That is the only mechanism by which legislation could “return to the people of the District of Columbia their right to vote” on limiting any of the District’s provisions based on sexual orientation. Only two Senators and 37 members of the House were willing to sign on to an amicus brief arguing that the Human Rights Act didn’t cover gay marriage. Even fewer would sign on to legislation to amend the “The Human Rights Act” specifically to exclude gay people from coverage.

Now none of this is to say that Michele Bachman and Rick Santorum would not try to do all of the above. They live in a bubble in which the things that they say actually make sense and where people admire them and their values. But both are wackadoodles with no chance of winning the Presidency.

Mitt Romney, however, is a credible candidate. And he should have thought a bit more before signing onto this pledge. Because he just made a declaration that has potential to negatively impact his campaign.

No, it was not the wacky appeal to ancestor-worship that has our “Founding Fathers” writing the Fourteenth Amendment in 1868. Palinist history is about symbolism, not fact, so this is not much of a liability to Romney at this stage.

Nor is it unusual for Republican nominees to declare their support for a commitment to constraint and to oppose those who “legislate from the bench.”

But this pledge goes way beyond such language. And by signing, Mitt Romney took the unusual step of declaring that his judicial nominees must reject the idea that the US Constitution protects the marriage rights of gay people. Mitt Romney announced that he has a litmus test.

In practice, litmus tests for judicial nominees are complicated.

An administration makes judicial appointments that it believes share its ideology. But the nominees themselves are bound by professional ethics from declaring their position on matters that are expected to appear before them. And most aren’t much favorable of the notion that your whim is to be followed rather than their consideration of the facts, weight of precedent, or argument of the litigants.

But regardless of whether or not litmus test questioning occurs in private, declaring a litmus test for judicial nominees, especially this early in a political campaign, is not wise. And at some point, a reporter is going to ask Romney the unanswerable question, “Considering Ted Olson’s legal stature and established conservative credentials, would his support for same-sex marriage disqualify him from an appointment to the federal bench?”

Comments

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Bose
August 4th, 2011 | LINK

Thanks for the analysis, Timothy…

It strikes me as convenient that NOM demands an anti-marriage-equality litmus test for Supreme Court nominees, because it can be cast as somewhat limited or measured.

But, doesn’t that mask the fact that President Romney would feel obligated to nominate a staunchly anti-privacy jurist? Someone who fundamentally disagreed with the bones of Roe v. Wade, liked Romer, and wants to dismantle Lawrence?

BlackDog
August 4th, 2011 | LINK

All things considered, I’m not the least bit sure WHAT Mitt Romney’s convictions or principles are, he seems to go with whatever is convenient for the moment.

Personally, the one thing that’d get me to respect a Republican cantidate these days is if some Republican cantidate somewhere would tell all the anti-gay, anti-choice, anti-education, anti-personal freedom, anti-union rightwing religious zealots to sit down and shut the hell up.

Instead, they kowtow to those people, and show by their actions and lack of principles that they aren’t fit to govern anything.

I think it’s bad for the country when one of the two main political parties can’t field a cantidate that appears to be qualified for the job. I’m not a big fan of Obama…but I’ll set a land speed record to go vote for him over anybody in the current crop of Republican losers.

cowboy
August 4th, 2011 | LINK

Oh dear, Mitt’s Mormon slip is showing. He said he wouldn’t let the LDS Church dictate his political views and that his Prophet in SLC is not going to influence him? This looks as if Mr. Romney didn’t learn from the Prop 8 fiasco and the negativity that surrounds Mormons and gays.

I think this is a bad omen for Mr. Romney. That, and his secret $1 million donor that can’t be found.

Oops. Another faux pas on Romney’s camp.

Do they really think a staunch tea-party devotee (or wannabe) will make it all the way to being the next RNC candidate?

If the RNC knows what’s good for them, a moderate is more likely to give Obama a run for the next term as POTUSA than a Tea-bagger.

Christopher
August 4th, 2011 | LINK

Glad to be Canadian where Ye Olde Tyme Religion never really cought on…

Joel
August 4th, 2011 | LINK

I wonder what Log Cabin Republicans have to say about this… Democrats, in my opinion and if you value yourself, are the lesser of two evils. *shrug

Laura
August 5th, 2011 | LINK

The funny thing about theses pledges is that they’re not worth the paper they’re written on.

It’s not a legally binding document. It only goes to show that the people who sign them have no critical thinking skills whatsoever. The voters that buy into this nonsense were probably going to vote for these clowns anyway but the candidates have turned off a large number of other voters who see the bullshit for what it really is.

Ryan
August 5th, 2011 | LINK

And I get more and more angry with Ginsburg at each passing day. Retire, already! I think Obama’s on his way out and Romney or Bachmann (I’ve not convinced she’s a long shot) will absolutely put in an anti-gay justice that could possibly overturn any upcoming rulings that go our way. Not that there’s any guarantee they’ll go our way now, but without Ginsberg, it’s hopeless. I agree that an anti-gay constitutional amendment will never pass, but clearly Republicans will successfully use the promise of it to win elections for decades to come. And like I said, a heavily Republican SCOTUS can do us plenty of damage. Retire, Ginsberg! And Obama can put one of the Clintons in there, and give Glenn Beck a coronary.

RobNYNY1957
August 5th, 2011 | LINK

Whoever wrote the pledge must have studied American legal history with noted intellectual Michele Bachmann. The court cases that have upheld marriage equality are based on equal protection, which is in the 14th Amendment, passed in 1868. So it wasn’t really something the Founding Fathers did.

Matt
August 5th, 2011 | LINK

Four, establish a presidential commission on religious liberty to investigate and document reports of Americans who have been harassed or threatened for exercising key civil rights to organize, to speak, to donate or to vote for marriage and to propose new protections, if needed.

Victimhood politics! Creating new commissions and regulations! Demanding that government address one’s grievances and perceived slights!

You could call this many things, but “conservative” isn’t one of them. Of a piece with Rick Perry’s “devotion” to federalism until the second it becomes inconvenient.

John
August 5th, 2011 | LINK

What is the original meaning of the Constitution that these people keep bringing up? Seems to me that this line is similar to the one where they say they have a direct line to God. Have any of these people read any of the literature on the Founding Fathers?

cd
August 6th, 2011 | LINK

As a Massachusetts resident, I can tell you that Mitt does not concern himself about pledges of the sort. He’ll cheerfully sign them and give them lip service in the campaign. Winning the Presidency is all that matters to him, the policy details are secondary.

If elected he’ll do as the Inner Party likes and as his ego prefers and what pressure can be bought to bear on him.

The ’13-’17 Presidency is going to be all about the money. Social and foreign affairs stuff, not so much. Romney is well aware of this.

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