Democracy Dies in Darkness

Opinion Clinton has ‘a bunch of litmus tests’ for Supreme Court nominees

Contributor, The Volokh Conspiracy

February 4, 2016 at 11:04 p.m. EST

Democratic presidential candidate Hillary Clinton speaks during a Democratic primary town hall sponsored by CNN on Feb. 3 in Derry, N.H. (John Minchillo/Associated Press)

During the Democratic candidate forum in New Hampshire on Wednesday night, Hillary Clinton declared that she would impose multiple litmus tests on prospective Supreme Court nominees.

From The Hill:

a person in the crowd asked Clinton whether she would impose a “litmus test” upon potential Supreme Court justices other than on the issue of being pro-abortion.
“I do have a litmus test, I have a bunch of litmus tests, because the next president could get as many as three appointments,” the former first lady responded. “It’s one of the many reasons why we can’t turn the White House over to the Republicans again.” . . .
“I’m looking for people who understand the way the real world works,” Clinton said. “Who don’t have a knee-jerk reaction to support business, to support the idea that you know, money is speech, that gutted the Voting Rights Act.” . . .
“We have to preserve marriage equality,” Clinton said. “We have to go further to end discrimination against the LGBT community, we’ve got to make sure to preserve Roe V. Wade, not let it be nibbled away or repealed.”

Last fall, Sen. Bernie Sanders also said he would impose a “litmus test” on prospective Supreme Court nominees. Specifically, Sanders remarked that “no nominee of mine to the United States Supreme Court will get that job unless he or she is loud and clear that one of their first orders of business will be to overturn Citizens United.”

The remarks by Sanders and Clinton stand in contrast to those of President Obama, who rejected the use of any case- or issue-specific litmus test when selecting Supreme Court nominees.

The idea of a specific litmus test for judicial nominees has long been criticized as a threat to judicial independence. See, for instance, Eugene’s comments from 2005. In the George W. Bush administration, prospective judicial nominees were asked about their judicial philosophy, but not specific issues.

UPDATE: It is interesting to compare the remarks of this year’s candidates with those made in 2008 by Senators McCain and Obama. During one of their debates, when asked about judicial nominations, both eschewed any resort to litmus tests.

SECOND UPDATE: Last night, during the Democratic primary debate, Bernie Sanders said the following:

So long as big money interests control the United States Congress, it is gonna be very hard to do what has to be done for working families. So let me be very clear. No nominee of mine, if I’m elected president, to the United States Supreme Court will get that nomination unless he or she is loud and clear, and says they will vote to overturn Citizens United.