Mitt Romney declares anti-gay litmus test for judicial appointments
August 4th, 2011
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?”