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Sanders and Clinton add new magic to presidential campaigns: ‘litmus tests’ for Supreme Court nominees

REUTERS/Lucas Jackson
Hillary Clinton listening to Sen. Bernie Sanders speak during the debate at the Brooklyn Navy Yard on Thursday.

I suppose much of the commentary on Thursday night’s Democratic presidential debate in Brooklyn will focus on a more combative tone between Sen. Bernie Sanders and former Secretary of State Hillary Clinton. It’s true that the combatants seemed a little more sick of one another’s routines than they have to date, but to tell you the truth, I think they were still relatively civil and substantive compared to any of the 92 (or is it 89? I wouldn’t want to exaggerate) Republican debates so far.

A few other elements seemed noteworthy. One occurred when they were asked about the nomination of Judge Merrick Garland to the U.S. Supreme Court. (Technically they were asked whether, if either of them won the election, they would ask President Obama to withdraw the nomination so one of them could name their own nominee.)

Clinton gave a cagey reply at first, saying that she wouldn’t “engage in hypotheticals” because she wanted to fully support Obama’s position that Garland should get a hearing.

Sanders went the other way, saying that if he won the election and the Republicans had not moved forward on Garland, he would indeed ask Obama to withdraw Garland so that he could make his own nomination. The reason he gave was familiar because he has said it before, but it is also historic, in a sense, because (before Sanders started doing it) I had never heard a serious presidential candidate be so forthright about a litmus test for a Supreme Court nominee. Said Sanders:

“If elected, I would ask the president to withdraw that nomination because I think — I think this. I think that we need a Supreme Court justice who will make it crystal clear, and this nominee has not yet done that, crystal clear that he or she will vote to overturn Citizens United and make sure that American democracy is not undermined.”

We are dealing with some powerful new magic here. Until Sanders, it has always been unofficially forbidden for any president or presidential candidate to admit to any such “litmus test” for a Supreme Court nomination. In fact, they were virtually required by custom to use the phrase “no litmus test” when asked such a question.

This was a fairly important element of the old culture surrounding the Supreme Court, which held that justices must be qualified legal thinkers who would analyze every case based on the facts of the case and the language and meaning of the statute in question and the text of the U.S. Constitution, and that it would be inappropriate to even ask for a commitment on how they might rule.

It is, of course, no thunderbolt that the old norms, they are a-changing. And Sanders’ attitude is part of the change. He has previously said that he would appoint only a nominee who would vote to overturn Citizens United. Tuesday night, he seemed to go a step further and say that the nominee must “make it crystal clear” — to almost make it a “read my lips” kind of campaign promise and presumably to make it public (since Sanders can’t know what Garland may have told Obama in private) — that he will vote a certain way on a certain issue.

I’m not exactly complaining about this. My lawyer friends are horrified by the rapid descent of Supreme nominations into the realm of politics. I feel their pain, but if this is the reality, I’d just as soon have it be done in the open.

Now Sanders is not a lawyer nor even a law school graduate. Clinton is both and I wondered whether she might decide to smack Sanders for politicizing the sacrosanct practices of Supreme jurisdiction. Instead, as the audience applauded Sanders for his litmus test, she decided to one-up him by announcing two litmus tests she would apply:

Clinton: “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.”

If you’d like to review an annotated transcript of the debate, here’s the Washington Post’s version of same, which they always managed to post within an amazingly few minutes of the end of the show.

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Comments (9)

  1. Submitted by Sean Olsen on 04/15/2016 - 09:16 am.

    Not the only ones

    Marco Rubio was explicit in saying that anyone he nominated to the Supreme Court would agree with his position that Roe and Obergefell were wrongly decided.

  2. Submitted by Paul Udstrand on 04/15/2016 - 09:50 am.

    About time

    It’s about time a democratic candidate acknowledges the importance of ideology. We’ve let this ridiculous “Originalism” fantasy contaminate the courts for far too long.

  3. Submitted by Pat Terry on 04/15/2016 - 09:58 am.

    Pet unicorns for everyone

    Clinton has apparenly figured out that explaining that Sanders has no idea what he is talking about isn’t going over so well. People don’t want reality when someone else is selling a fantasy. She just has to run out the clock, so its much easier just to play pretend as well at this point.

  4. Submitted by Pat Berg on 04/15/2016 - 10:03 am.

    Friday night’s debate?

    Are they doing one tonight, too?

  5. Submitted by Ray Schoch on 04/15/2016 - 11:13 am.

    Fact and fiction

    My memory is bad enough that I can’t, offhand, point to specific examples, but while it’s certainly unusual for a presidential candidate to lay his/her cards on the table about a SCOTUS nominee, I’ve definitely had the impression, over the years, that Senators have had far fewer qualms about expressing their ideological preferences, including a preference regarding “originalism” that Paul classifies – correctly, I think – as a fantasy.

    The idea that the Court is somehow “above” politics has been an illusion for… well… since Marbury v. Madison. It’s been convenient for candidates to pretend otherwise, and doing so may well have provided some of them with a veneer of “statesmanship,” but it’s only a veneer in this context.

  6. Submitted by Eric Black on 04/15/2016 - 11:57 am.

    Thanks, Pat, for catching the typo. The debate was Thursday night and the post now reflects that.

  7. Submitted by beryl john-knudson on 04/15/2016 - 01:29 pm.

    Do I hear it once, twice; goes to the highest bidder!…

    Can you believe it…between garden, dead leaf raking and a cup of tea I listen to the rerun of Hillary/ Sanders…and sounds like whatever strength there is revealed in Sanders policy; changes like the living wage issue etc, Hilary comes with ‘bidding one higher’…that’s okay but does she mean it ?

    Sounds like for her the big white house and its future occupant is on the auction block folks… could be too I suppose? If she wants to borrow policy ideas from Sanders, okay, but looks more like she’s borrowing a cup of sugar to sweeten her cup?

    And as a general criticism that goes to all Pres- runners this time…remember the attacks on Wellstone when Paul showed a little passion in his voice on the platform not too, too long ago? He was called on it by the media etc quite often as being “too loud, too strident: dramatic”?

    Now look what’ we’ve got,eh?

    • Submitted by Steve Titterud on 04/16/2016 - 11:02 am.

      Hilary is concerned ONLY with so-called “messaging”.

      She is empty of any intention other than to get elected.

      But she is really good at that messaging – in other words, she is a great liar. Reminds me of Ronald Reagan, except he was much better at it. Both of them persuaded a core constituency to vote against their own interests.

      You’d think that people would notice that she’s a one-percenter taking scads of money from one-percenters who are donating to protect their interests. The latest variation on this scheme is that the Republican big money donors are contemplating giving to the Clinton campaign if Trump should be the nominee. Makes sense.

      • Submitted by Bill Willy on 04/17/2016 - 01:42 pm.

        And then what?

        As far as I’m concerned there’s no doubt Bernie Sanders ought to become the nominee and be elected president. It doesn’t look like that’s going to happen and there’s not much any of us in MN can do about it (it’s up to voters in the remaining primary states).

        That could change, but if it doesn’t the question is will Bernie’s supporters vote for Hillary or will they “sit this one out” because they perceive her to be “a great liar” or “no better than the other candidates, so the hell with them all”?

        Will Bernie’s supporters be let down and disillusioned to the point they’ll be willing to take their chances on Trump or Cruz (or whoever the Republican turns out to be) beating Hillary?

        That’s pretty much what happened in 2000 when a lot of Democrats were less than wild about Al Gore, didn’t vote because of that and then sat around watching the election results and wondering what the near-future would bring as George Bush pulled it out with the help of “the machinery” in Florida and the (“objectivist”) Supreme Court.

        Everyone seems to agree that “hindsight is 20/20” and given the result of that election I doubt there are many non-Republicans who sat that one out who wouldn’t do things differently if they had the chance.

        As far as the Wall Street/Big Money/Hillary connection goes, the way I understand that one is the Big Money people want Hillary elected not so much because they think they’ll be able to control her (as you point out, she and Bill are worth somewhere around $250 million so they don’t need the money), but because they believe if she’s elected nothing will change all that much (for them) and that’s what they want. They like “stability,” they sure don’t want Bernie elected and Trump scares them almost as much because he’s such a loose cannon.

        But sticking to the main point and according the “logic” of that, “the worst outcome” of Hillary being elected would be that things continue on roughly the same track they’re been on for the past seven years. That’s probably crazy of course — hard to say what the future holds or what anyone’s going to do, etc. — but when a person compares the likelihood of that to how things would change if Trump or Cruz was elected and Republicans were able to retain control of the House and Senate a person would hope Bernie’s supporters would think long and hard about what NOT voting this time around could mean for THEIR futures.

        It may be worth mentioning that Bernie Sanders is the first legitimate and (surprisingly) powerful candidate of the “99%/Occupy Wall Street Party.” It may be a chicken and egg thing (Bernie’s been saying what he’s been saying for more than 40 years and the Occupy movement was launched in late summer of 2011) but it’s relatively astounding how much real world political traction the basic tenants of that nearly spontaneous movement has gained in less than five years.

        In terms of comparison, the Independent Party, the Libertarian Party, any not Democratic or Republican party, would pretty much kill for the kind of numbers, percentages, votes that “wing” of the American political scene has, all of a sudden, picked up. It and its “standard bearer,” Bernie Sanders (and Elizabeth Warren) seems to be riding the same “collective wave” as the “gender equality” movement.

        What Bernie Sanders stands for, represents, is hitting such a gigantic nerve with, will most likely NOT be going away anytime soon. If Bernie doesn’t get the nomination and win this time around it (regardless of which “personality” represents it) WILL be back and be back with 75% to 80% backing of young voters AND a substantial percentage among the not so young which is one hell of a foundation for something that, basically, didn’t exist 10 years ago.

        And when it comes to the idea of Hillary winning and “nothing changing” for four or eight years, there could be (much) worse outcomes and four to eight years is next to nothing in terms of political or real world practical change. Just ask the African American community, the LGBT community, Native Americans, the long gone women who had to wait 120 or 130 years to be “granted the right” to vote, or any of the millions of people who have been waiting for (and working and voting toward) the implosion of the Conservative Republican Movement that Ronald Reagan, the Bush family, the Supreme Court and the rank and file idiots who populate Congress and so many state legislators and governor’s mansions have been representing for the past 35 to 40 years.

        And speaking of great liars and comparisons with people like Ronald Reagan, can you point to a specific lie (or set of lies) Hillary has told that comes anywhere near comparing with the (alleged) highly organized lies George Bush, Dick Cheney and Republicans in general told regarding those “weapons of mass destruction” in Irag that led to the death of hundreds of thousands of people, complete chaos in the Middle East and U.S. taxpayers spending $6 trillion we didn’t have or that could have been spent on much more beneficial things?

        Anyway, I hope Bernie’s supporters won’t decide to just stay home on voting day if he’s not the candidate.

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