OPINION:
The Republican presidential candidates have mostly ignored one of the most important issues the man (or woman) elected in November will face in his or her first term — filling vacancies on the U.S. Supreme Court. Hillary Clinton, however, has no reluctance to say that she will apply a litmus test in selecting nominees, and suggests that Barack Obama would be a good addition to the High Court.
The left has so skewed the confirmation process by demanding fealty to abortion rights as if they were abortion rites, that conservative presidents have attempted to nominate stealth candidates just to avoid litmus tests. Selections for the High Court are more important than usual because the next president can expect to nominate two or three justices, subject to approval by the U.S. Senate, who could shape the court for the next generation, enabling it to rewrite the Constitution.
Hillary declares that she wants to do that. She has made it clear that she expects promises from her nominees that once on the court they will vote to reverse District of Columbia v. Heller, the 2008 decision that upheld the intent of the Second Amendment to protect the individual right to “keep and bear arms,” and the 2010 decision in Citizens United v. FEC that extended First Amendment protection to nonprofit groups of people, corporations owned by people and labor unions made up of people. A decade ago any candidate who suggested a litmus test on any issue would likely have been denied Senate approval. Nominees are regularly pressed now on the point of whether they had made any such promises.
On the Republican side, Jeb Bush, the former governor of Florida, has emphasized emphatically the importance of justices faithful to the Constitution and pledged that his appointments will be “different” and “better” than those of his father, George H.W. Bush, and his brother, George W. Bush. George the Elder rendered the country a solid constitutional justice in Clarence Thomas, but rendered a justice not so good with the appointment of David Souter. George W. appointed John Roberts, on whom the jury is still out, and Samuel Alito, a solid conservative. None of these justices were subjected to a litmus test.
Ronald Reagan hardly did better than Bush father and son, batting an anemic .333 with the nominations of Antonin Scalia (good) and Sandra Day O’Connor and Anthony Kennedy, usually well-meaning but unpredictable and not what the Gipper expected.
Reckoning how a justice will rule is at best an imperfect science and a fragile art. Justices are independent, as they are expected to be. Justice Thomas was once asked how he answered critics, and he replied briskly: “Life tenure.” Presidents have traditionally looked to the character, philosophy and records of those they choose for the assurance that once on the court a justice will redeem expectations. Sometimes that works. Hillary thinks she can cook the result by extracting promises on specific issues as a condition of appointment.
Jeb Bush, on the other hand, boasts of his record as governor of Florida, where he did indeed appoint constitutional judges, and he promises to do that again in Washington. But he has a litmus test, too, even if he doesn’t call it that. He says he hopes a future court will reverse the Citizens United decision, which raises the question of how a president who doesn’t understand the First Amendment himself could be relied on to appoint judges who do.
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