AP Photos / Charlie Neibergall / Matt Rourke
The Supreme Court. A Major Election Concern?
In this presidential election season the Supreme Court vacancy left by Justice Scalia has become a hot-button issue central to every campaign. Take Hillary Clinton’s comment during April 14’s Democratic Debate (which I will return to later):
“You know, there is no doubt that the only people that I would ever appoint to the Supreme Court are people who believe that Roe v. Wade is settled law and Citizens United needs to be overturned. And I want to say something about this since we’re talking about the Supreme Court and what’s at stake. We’ve had eight debates before, this is our ninth. We’ve not had one question about a woman’s right to make her own decisions about reproductive health care, not one question.”
And Donald Trump’s statements during the March 10th Republican Debate:
“The Republican Party has a great chance to embrace millions of people that it’s never known before. They’re coming by the millions. We should seize that opportunity. These are great people. These are fantastic people. These are people that love our country. These are people that want to see America be great again. These are people that will win us the election and win it easily. These are people that once the election is won will be able to put Supreme Court justices up that will do a fabulous job. Because let me tell you, if we lose this election, you’re going to have three, four or maybe even five justices and this country will never, ever recover. It will take centuries to recover,”
as well as in rally on February 17th in Walterboro, South Carolina:
“Your getting out to vote is just so important. Because our country has been taken away from us. It’s going so fast,” Trump said. ‘The Second Amendment is under siege, you know that… We lost a great Supreme Court justice and nobody thought this was gonna be part of the equation. And all of a sudden, if somebody gets in and it’s the wrong person, they’ll take that Second Amendment away so fast your head will spin.’”
You don’t have to look any further than the candidates themselves to clarify the potential importance of the Supreme Court vacancy to the general electorate. Even President Obama gave his two-cents on this issue as was the case during the commencement address at Rutgers University on May 15th:
“In 2014, voter turnout was the lowest since World War II. Fewer than one in five young people showed up to vote — 2014. And the four who stayed home determined the course of this country just as much as the single one who voted. Because apathy has consequences. It determines who our Congress is. It determines what policies they prioritize. It even, for example, determines whether a really highly qualified Supreme Court nominee receives the courtesy of a hearing and a vote in the United States Senate”
Nonetheless as reported in Rick Hasen’s Election Law Blog, the general population does not necessarily accord the same importance to the relationship between the election and the Supreme Court vacancy.
Notwithstanding the electorate’s sentiment, the front-runners consider this an essential campaign agenda item. For Donald Trump this began in a Republican Debate on February 13th, just after Justice Scalia was found dead. Interestingly, even at this point it was evident that to maintain this as a campaign issue there was one essential strategy (hint: delay):
TRUMP: “Well, I can say this. If the president, and if I were president now, I would certainly want to try and nominate a justice. I’m sure that, frankly, I’m absolutely sure that President Obama will try and do it. I hope that our Senate is going to be able — Mitch, and the entire group, is going to be able to do something about it.
In times of delay, we could have a Diane Sykes, or you could have a Bill Pryor — we have some fantastic people. But this is a tremendous blow to conservatism. It’s a tremendous blow, frankly, to our country.
DICKERSON [moderator]: So, just to be clear on this, Mr. Trump, you’re O.K. with the president nominating somebody …
TRUMP: … I think he’s going to do it whether or I’m O.K. with it or not. I think it’s up to Mitch McConnell and everybody else to stop it. It’s called delay, delay, delay.”
As the Wall Street Journal reports, Trump has also used this issue as a tool to dissuade Republican voters from possibly pivoting towards a third-party candidate saying, “Anybody that does a third party, that’s what it’s going to mean…It’s very simple, it guarantees, 100% guarantees, the election of a Democrat… That is a total wipeout for conservatives and for Republicans. So start thinking about that. Start thinking about that.”
President Obama and Secretary of State Clinton (unsurprisingly) have very different timelines in mind from Trump. President Obama did not wait long to clarify his position. On February 16th he said, “The Constitution is pretty clear about what is supposed to happen now. When there is a vacancy on the Supreme Court, the President of the United States is to nominate someone. The Senate is to consider that nomination, and either they disapprove of that nominee or that nominee is elevated to the Supreme Court.”
Secretary Clinton followed suit in several instances including the March 9th Democratic Debate when she said, “And I fully support President Obama’s intention under the constitution to nominate a successor to Justice Scalia. And I believe…[applause]…I believe no state probably understands this better than Florida. Because let’s remember three words: Bush versus Gore. [applause]”
Also not surprisingly, the candidates (and the President) are looking for highly divergent qualities in the next confirmed Supreme Court Justice. In an interview soon after the vacancy became a matter of public discussion, Trump brought Clinton into his crosshairs,
“Well, I’d probably appoint people that would look very seriously at her email disaster because it’s a criminal activity, and I would appoint people that would look very seriously at that to start off with…What she’s getting away with is absolutely murder. You talk about a case — now that’s a real case.”
Even prior to Judge Garland’s nomination, President Obama described and reiterated with political acumen the same general criteria he would look for in a Justice. Here is an example from a news conference on March 10th , days before nominating Judge Garland,
“I want somebody who is an outstanding jurist, impeccable legal credentials, who, by historical standards, would not even be questioned as qualified for the Court, follows the Constitution; cares about things like stare decisis and precedent; understands the necessary humility of a judge at any level in looking at statute, looking at what the elected branches are doing; is not viewing themselves as making law or, in some ways, standing above elected representatives, but also recognizes the critical role that that branch plays in protecting minorities, to ensuring that the political system doesn’t skew in ways that systematically leave people out; that are mindful of the traditions that are embedded in our cherished documents like the Bill of Rights.”
President Obama’s description of Judge Garland’s qualifications during the public address for Judge Garland’s nomination on March 16th followed a similar trajectory:
“I’ve selected a nominee who is widely recognized not only as one of America’s sharpest legal minds, but someone who brings to his work a spirit of decency, modesty, integrity, even-handedness, and excellence. These qualities, and his long commitment to public service, have earned him the respect and admiration of leaders from both sides of the aisle. He will ultimately bring that same character to bear on the Supreme Court, an institution in which he is uniquely prepared to serve immediately.
As one might expect from candidates, both Clinton and Trump are more focused than President Obama on specific issues facing the Court. Trump has used opportunities in Republican Debates, especially when confronting Ted Cruz, to distinguish his potential choice for Justice from Chief Justice Roberts, “Might as well be called Roberts-care. Two times of the Supreme Court, Justice Roberts approved something that he should have never raised his hand to approve. And we ended up with Obamacare.” In the March 3rd Republican Debate, Trump similarly used anti-Roberts phrasing when describing Cruz, “This is the man that was the primary supporter. And you can read law journal, you can read whatever you want to read — I’ve read plenty of it. There was no stronger supporter of John Roberts than him. And it was a very, very big mistake.”
Clinton has been equally clear about the importance of the nomination in relationship to particular issues that the Court will address. In a March 6th Democratic Debate she said,
“And that is one of the many reasons we must all support President Obama’s right to nominate a successor to Justice Scalia and demand that the Senate hold hearings and a vote on that successor because there are so many issues at stake. On the first day of my campaign, I said, we are going to reverse Citizens United. And if we can’t get it done through the court, I will lead a constitutional amendment effort to reverse it that way.”
While Clinton was somewhat circumspect about the direct role of the judicial nomination in the prospective change of law, she, Trump, and others have directly voiced the decisions they expect from a newly appointed Justice.
The Litmus Test
From a legal perspective, one of the more troubling aspects of any Article I politician or candidate’s rhetoric is when they describe expectations that judges deviate from a position of judicial impartiality. The rhetorical significance of position staking is, to be sure, different for elected officials than it is for candidates. President Obama and former President George W. Bush, however, both made clear on their campaign trails and in office that they had no specific litmus test for a Supreme Court nomination. During his initial campaign for President, President Bush employed value-laden verbiage in his comments although he did not address specific issues. In one instance during a January 26th 2000 Republican Debate he said, “I will appoint judges who strictly interpret the Constitution and who will not use the bench to legislate. And, you know, it’s interesting, Ronald Reagan was asked this question in the 1980 debate. You probably remember it.”
In a less value-centric manner, during a news-conference regarding the nomination of Harriet Miers to the Supreme Court, President Bush said,
“I have no litmus test. It’s also something I’ve consistently said: There is no litmus test. What matters to me is her judicial philosophy: what does she believe the role—the proper role of the judiciary is, relative to the legislative and the executive branch. And she’ll be asked all kinds of questions up there, but the most important thing for me is, what kind of judge will she be? And so there’s no litmus test… And I’ll say it again: There is no litmus test.”
President Obama stayed away from commenting on constitutional interpretation during his initial campaign although he did not shy away from discussing his perspective on issues before the judiciary with statements like this one during a Presidential Debate on October 15th, 2008:
“Well, I think it’s true that we shouldn’t apply a strict litmus test and the most important thing in any judge is their capacity to provide fairness and justice to the American people. And it is true that this is going to be, I think, one of the most consequential decisions of the next president. It is very likely that one of us will be making at least one and probably more than one appointments and Roe versus Wade probably hangs in the balance. Now I would not provide a litmus test. But I am somebody who believes that Roe versus Wade was rightly decided. I think that abortion is a very difficult issue and it is a moral issue and one that I think good people on both sides can disagree on.”
In office, President Obama has similarly criticized Supreme Court decisions without specifying criteria for potential Justices as he did in this description of the Citizens United decision, “The Citizens United decision was wrong, and it has caused real harm to our democracy. With each new campaign season, this dark money floods our airwaves with more and more political ads that pull our politics into the gutter.
The current candidates are not as agnostic regarding their expectations of a new Supreme Court Justice. Secretary Clinton was clear on this even in her prior campaign for the 2008 Democratic nomination as is evident in this exchange,
“Mr. Blitzer [moderator]: Senator Clinton, would this be a sine qua non for you, that any nominee you name to the Supreme Court would have to share your view on abortion?
SEN. CLINTON: Well, they’d have to share my view about privacy, and I think that goes hand in hand. Privacy, in my opinion, is embedded in our Constitution. What does it mean to have a right to free speech or the right to worship as you choose if you also don’t have the right to be left alone, to have that privacy that goes with being an American? (Applause.) So it would be absolutely critical.
And I, like Senator Biden —
BLITZER: So the answer is yes?
SEN. CLINTON: Yes, the answer is yes. And”
This time around Secretary Clinton sounds very much the same. In the March 9th 2016 Democratic Debate she said, “And understand the balance of power that their decisions can disrupt one way or the other. So clearly, I would look for people who believe that Roe v. Wade is settled law and that Citizens United needs to be overturned as quickly as possible.”
On April 14th Secretary Clinton echoed this sentiment about her requirements for a Justice’s views on Roe v. Wade and Citizens United: “there is no doubt that the only people that I would ever appoint to the Supreme Court are people who believe that Roe v. Wade is settled law and Citizens United needs to be overturned.”
Clinton even expounded at greater length during a February 3rd 2016 Democratic Presidential Town Hall:
“I do have a litmus test. I have a bunch of litmus tests because I agree with you. The next president could get as many as three appointments. You know one of the many reasons why we can’t turn the White House over to the Republicans again is because of the Supreme Court. I’m looking for people who understand the way the real world works, who don’t have a kneejerk reaction to support business, to support the idea that you know money is speech, that gutted the Voting Rights Act. I voted for the reauthorization of the Voting Rights Act when I was in the Senate. It passed 98 to nothing based on a very extensive set of hearings and research. Supreme Court comes along. They substitute their judgment for the Congress, signed by George W. Bush. That is one of our problems. They have a view that I just fundamentally disagree with about what the way we have to keep the balance of power in our society is. So they have given way too much power to corporations. They have given Citizens United, the biggest gift to the Koch brothers, Karl Rove and all of those folks whose values I don’t share, and who are doing everything they can to try to turn the clock back. We have to preserve marriage equality. We have to go further to end discrimination against the LGBT community… [applause] We’ve got to make sure… [applause] We’ve got to make sure to preserve Roe v. Wade, not let it be nibbled away or repealed.”
Putting one’s views on the issues aside, these are strong statements that begin to muddy the separation between the Executive and Judicial Branches of the Federal Government. All current candidates have been prone to losing track of this distinction. Bernie Sanders has been oft-criticized for his comments that, “If elected president, I will have a litmus test in terms of my nominee to be a Supreme Court justice. That nominee will say that we are going to overturn this disastrous decision in Citizens United because that decision is undermining American democracy.”
Trump has been very clear about the ideology of a potential appointee: “…some people say: Oh, maybe I’ll appoint a liberal judge. I’m not appointing a liberal judge… this list was compiled, first and foremost, based on constitutional principles.” Trump similarly weighed in on the abortion decision facing the Supreme Court when asked by Fox News’ Bill O’Reilly about how he would “protect the sanctity of life,” replying, “I will protect it, and the biggest way you can protect it is through the Supreme Court and putting people on the court. Actually, the biggest way you can protect it, I guess, is by electing me president.”
When asked in a February 25th Republican Debate, “Will you commit to voters tonight that religious liberty will be an absolute litmus test for anyone you appoint, not just to the Supreme Court, but to all courts,” Trump replied:
“Yes, I would. And I’ve been there. And I’ve been there very strongly. I do have to say something, and this is interesting and it’s not anybody’s fault. It’s not Ted’s fault. Justice Roberts was strongly recommended and pushed by Ted. Justice Roberts gave us Obamacare. Might as well be called Roberts-care. Two times of the Supreme Court, Justice Roberts approved something that he should have never raised his hand to approve. And we ended up with Obamacare.”
Whether the current candidates are merely more ‘candid’ than those before them or actually have stronger beliefs regarding the Justices’ articulated impartiality, the candidates clearly convey that the expressed positions of potential nominees for Supreme Court Justice are main criteria for their picks. On the other hand, if the Supreme Court confirmation hearings give any indication on whether potential Justices will give away their positions on active cases, the candidates are, in all likelihood, going to be sorely disappointed.
On Twitter: @AdamSFeldman