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

In the past, it has been unofficially forbidden for a candidate to admit to any “litmus tests” for a court nomination.

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

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:

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“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.