Abortion Issue Not Key to Court Pick, Thornburgh Says

Atty. Gen. Dick Thornburgh insisted Sunday that the Bush Administration would not apply a litmus test on abortion or any other issue in choosing a successor to retiring Supreme Court Justice Thurgood Marshall.

“Nobody’s going to give a multiple choice test to a prospective nominee on any question, let alone a question about which there are such political differences,” Thornburgh said, speaking on NBC’s “Meet the Press.”

Bush, who spent the weekend at his vacation home in Kennebunkport, Me., commented there that he is “getting close” to a decision. Asked when he would announce his choice, he said: “Not sure, not sure.” White House officials said Bush probably would announce a decision after he returns to Washington on Tuesday.

Thornburgh was noncommittal when asked whether Bush would name a member of a minority group to the seat held by Marshall, the only black justice ever to sit on the high court. But he said the President had gone to Kennebunkport with a list of prospective nominees that includes “qualified women, blacks, Hispanics, persons with disabilities and the like.”

“Certainly, the President wants a court, a Supreme Court and other courts, that reflect the diversity of our society . . . but the final selection, of course, is his,” he said.

Thornburgh said that it would be “highly improper” for the executive branch or the Senate, which must confirm the nominee, to ask whether the nominee supports the 1972 Roe vs. Wade decision that made abortion legal.

“I don’t think that’s a proper question,” said the attorney general. “I think focusing on particular holdings or prospective holdings of the court has always been out of bounds.”

Thornburgh, also interviewed on ABC’s “This Week With David Brinkley,” said that it would be difficult for a nominee to discuss abortion policy in the absence of a specific set of facts related to a particular case.

Thornburgh acknowledged that the Administration advocates reversing Roe vs. Wade and has argued as much before the Supreme Court. And, noting that the court has become more conservative in recent years on cases involving abortion, Thornburgh said that he expects Bush to choose a nominee “who reflects his judicial philosophy.”

“And to the extent that that calls for restraint and the exercise of the judicial power, and in respect for other branches of government, I think the trend of the court in dealing with Roe vs. Wade is likely to be continued,” he said.

Thornburgh said that he believes the Senate should “plumb deeply and thoroughly the (candidate’s) judicial philosophy” and “look at his general views on the key questions that relate to interpretation of the Constitution.”

Asked if he thought a senator could vote against a nominee because he or she did not like the nominee’s judicial philosophy, Thornburgh replied: “I think so. . . . But one has to be sure that that’s not a mask or a guise for a partisan political objection, as it has sometimes in the past.”

Meanwhile, Sen. Patrick J. Leahy (D-Vt.), a member of the Senate Judiciary Committee, said that he hopes the President will select someone who would “give a moderating influence” to the court, not someone who would “lock in an ideological majority.” The judiciary panel will vote on the nomination before it goes to the full Senate.

“We’re not picking somebody for the Republican Platform Committee,” said Leahy, also interviewed on the Brinkley show. “We’re picking somebody to be a Supreme Court justice for all Americans.”

However, Sen. Orrin G. Hatch (R-Utah), another Judiciary Committee member, noted that “this question of balance never came up during the (Earl) Warren years,” when the court was decidedly liberal in its rulings. “There wasn’t much argument for balance then.”

During the weekend, Justice Department officials interviewed Judge Emilio M. Garza of the U.S. 5th Circuit Court of Appeals in Texas, Administration officials said Sunday.

One of them said Garza was interviewed Saturday partly because he was less well-known to Administration officials than other candidates on the short list to succeed Marshall.

Times staff writer Sam Fulwood III in Kennebunkport, Me., contributed to this story.