President Bush said during a presidential debate: “I will pick judges who will interpret the Constitution, but I’ll have no litmus test.”

Harriet Miers won’t be sitting on the U.S. Supreme Court because powerful groups do have a litmus test.

Abortion is well disguised in the Kabuki dance of appellate court nominations, but it’s foremost in most people’s minds, and that’s too bad. An ABC News poll from December 2004 revealed that most people want a Supreme Court who reflects their views on abortion. The more extreme one’s position on the topic, the more it matters. And the more it matters, the noisier they are. The debate is dominated by those who say all abortions should be illegal and those who say there should be few restrictions.

Most Americans are somewhere in the middle, but they aren’t as passionate. This leaves politicians with a delicate balancing act. They have to placate the obsessives without looking extreme to their moderate constituents.

Enter the red herrings.

Politicians and activists construct false arguments to distract us from the fact that abortion is the driving factor. The most popular tactic of late is to argue over the process. Back in May, when Senate Democrats were threatening filibusters over some nominees, Republicans launched a coordinated campaign around the theme that every nominee deserved an up or down vote.

Senate Majority Leader Bill Frist: “All 100 members of the U.S. Senate will soon decide a basic question of fairness. Will we permit a fair, up-or-down vote on every judicial nominee?”

The Rev. James Dobson, head of Focus on the Family: “Give every appellate court nominee the courtesy of an up or down vote. They deserve no less!”

President Bush: “The Senate also has a duty – to promptly consider each of these nominations on the Senate floor, discuss and debate their qualifications and then give them the up or down vote they deserve.”

Harriet Miers will not be getting an up or down vote, let alone a chance to testify in front of the Senate Judiciary Committee. That’s because her views on abortion are too sketchy for social conservatives. Back when President Clinton was nominating pro-choice judges and Republicans were throwing up roadblocks, Democrats sang the diversionary tune about process.

Sen. Dianne Feinstein, D-Calif., said: “Let’s bring their nominations up, debate them if necessary, and vote them up or down.”

Sen. Barbara Boxer, D-Calif., agreed: “The nominee deserves his day, and filibustering this nomination is keeping him from his day.”

Political actors have no trouble trading scripts, because they don’t really believe in the principle. They only call for up or down votes when they’re certain of a nominee’s views and certain they have the “up” votes.

Let’s be honest: This is predominantly about abortion, on both sides, and it’s a shame. Only a fraction of the cases handled in federal courts address that issue. The abortion fixation drowns out debates on important issues that affect national security, commerce, the environment and civil rights.

If the president nominates a reliable pro-life judge to the Supreme Court, we fully expect the “up or down” chorus to rediscover its voice.

Americans should tune that out and demand a better debate.

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