Supreme Court

Merrick Garland And The Bernie Sanders Litmus Test... Is This Defensible?

Poor Judge Garland: Hillary and Bernie both suggest they'll toss him under a bus.

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Bernie Sanders Merrick GarlandMany of us monitoring D.C. Circuit Chief Judge Merrick Garland’s modern-setting production of Dante’s Il Purgatorio — marching in vain from Senate office to Senate office guided by Barack Obama’s haunting portrayal of Virgil — have mused about what happens in the event that Hillary or Bernie (let’s face it, Hillary) wins the presidency. Will Senate Republicans gleefully accept the relatively even-keeled Judge Garland rather than risk a younger, more liberal nominee? Mitch McConnell says no, for what that’s worth today. Or might Secretary Clinton or Senator Sanders take the opportunity out of McConnell’s hands and ask the sitting president to preemptively junk the Garland nomination to allow them to select their own nominee? Last night, we got some answers.

At the 957th Democratic debate yesterday, CNN finally remembered that the Supreme Court is a thing and asked the candidates point blank about the Garland nomination and whether they would ask President Obama to withdraw it if elected.

Secretary Clinton answered the question — like she answers most questions at debates — by not answering the question:

I am not going to contradict the president’s strategy on this. And I’m not going to engage in hypotheticals. I fully support the president.

And I believe that the president — the president is on the right side of both the Constitution and history. And the Senate needs to immediately begin to respond. So I’m going to support the president. When I am president, I will take stock of where we are and move from there.

“I’m not going to engage in hypotheticals.” Thanks. It’s not like you’re running for president or anything. It’s one thing to avoid hypotheticals based on “what if this unforeseen event happens three years down the road” and another to avoid the hypothetical based on “if you win.”

Somehow the immediate media takeaway ignored everything after the first soundbite:

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Astounding.

Meanwhile Senator Sanders took a different view:

Yes, but here is the point, and obviously I will strongly support that nomination as a member of the Senate. But, if elected president, 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.

After rousing applause, Clinton jumped in quickly to echo the importance of a litmus test and to add Roe to the list.

Despite the media characterization, Sanders isn’t necessarily saying he couldn’t get behind Judge Garland. He’s saying he would need commitments, “and this nominee has not yet done that.” So Sanders cares more about the answers to key policy questions than the nominee per se. This sentiment from the Sanders answer (and, by extension, Clinton’s follow-up) elicited a quick response tweet from Professor Matthew Brogdon:

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A fair point, and one that I mulled over while riding my unicorn to work this morning. Undeniably, there’s a long-standing stigma against “litmus tests” in judicial appointments. Ronald Reagan explicitly campaigned on a pledge to appoint justices who would overturn Roe, and then Attorney General Ed Meese vigorously denied such a test existed. Meese even said such a test was impossible, which stretches credulity when the test can be administered with the simple interrogatory: “So, hey, do you think abortion should be constitutionally protected? Please elaborate.”

On one level, I get it. The stigma about litmus tests is even admirable. There’s something to the nobility of a hermetic separation of powers that people want to believe in. It pines for the good ole days of the Founders. But if such a world ever existed (it didn’t… it’s literally the f**king point of Marbury v. Madison), it’s long gone. Justice Brennan aggressively slipped one past the goalie to get his nomination. It’s not like Ike wanted to appoint arguably the most left-leaning justice in American history. He called it one of his two big regrets.[1] And George H.W. Bush didn’t want Justice Souter to be Justice Souter, he just trusted John Sununu’s New Hampshire cronyism to his detriment.

The truth is, there are litmus tests. Roe for both parties, Citizens United at least for the Democrats, and, hell, Kelo is pretty important to Donald Trump. Any president interviewing a potential nominee is going to ask — directly or indirectly — about the nominee’s views on hot-button issues. To not do so constitutes political malpractice. The wise candidate — at least the one hoping to avoid a potential “lying to Congress” charge on the back-end — will offer a wink and nod response and hope that’s enough to convince the president and enough of the Senate to let the nomination proceed.

It may be a dumb game, but it’s the game and it’s not going anywhere. It’s time we let go and accept that it has a place in judicial nominations even if some folks wish it weren’t so.

[1] The other, Chief Justice Warren, wasn’t so much a question of vetting because without pledging the seat to Warren in exchange for the latter stabbing Taft in the back, Eisenhower may never have become president.

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