"Gay marriage" litmus test for Supreme Court nominee?

William A. Jacobson of the blog, "Le·gal In·sur·rec·tion", has some thoughts on President Obama's priorities for his upcoming Supreme Court nomination.

Gay Marriage The New Nomination Litmus Test:

For the past several Supreme Court nominations, the hot issue has been abortion. [...] Abortion will not be the hot issue this time. [...] But there is another issue which almost certainly will come into play: Gay marriage.

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There is no indication that Obama wants a fight over gay marriage, or wants his first Supreme Court nomination to turn on that issue. But he may not be able to avoid the issue, as much as he may like to do so.

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Gay marriage may be the new abortion when it comes to the Supreme Court nomination process. But that litmus test will work only in one direction. No Democrat will have the guts to require a pro-gay marriage nominee, but many Democrats and all Republicans will disqualify a nominee on that basis.

In his blogpost, Jacobson describes a few examples of people whose names have been kicked around as potential nominees.

I disagree with issue-based litmus tests

But I'd favor a test for temperment and intellectual inclination toward judicial restraint. While the nomination process does not always produce an accurate picture of a nominee's judicial philosophy, if a potential Justice passed such a test, he or she would at least have indicated a strong appreciation for the correct use of lawyerly skills toward the interpretation of the law rather than a willfulness toward the abuse of judicial review.

Empty rhetoric that gives a metaphorical nod to judicial restraint but then forges ahead anyway is not of any value in our form of governance. Of the court opinions that have favored "gay marriage", none have resisted abusing judicial review. And each included the phoney nod.