Supreme Court

Trump, Clinton, and 'Politicizing the Judiciary'

Do "litmus tests" for judicial nominees harm the Supreme Court?

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Credit: Todd Kranin

The editorial board of The Washington Post is none too pleased about the manner in which presidential candidates Donald Trump and Hillary Clinton have been discussing the future of the U.S. Supreme Court. Trump, the Post says, is guilty of "further politicizing the judiciary" because he released a list of possible Supreme Court picks ahead of the fall election. Clinton is equally guilty, the Post says, on account of her promise to apply "a bunch of litmus tests" to her judicial candidates. "Committing to a list of judicial nominees at this point and promising to apply judicial litmus tests put the country on a dangerous path," the Post complains in an unsigned editorial.

What's the danger? Here's the Post:

Americans have long expected and should still expect that judges be guided by other values: careful thinking, reverence for the facts of specific cases, respect for the intent of the elected leaders who write the laws, openness to counterarguments, a healthy amount of modesty and allegiance to the notion that their rulings must bear a rational relationship to the laws they interpret and the precedents they have set. A world in which judges must at the very least address these expectations is far better than a world in which they are assumed to be wholly political actors who need offer no justification beyond, "I promised to rule this way."

Of course, every judicial nominee already sings the praises of "careful thinking," "openness," "modesty," and other such platitudes. The problem is that such lofty terms don't tell us anything about what actually matters when it comes to judging. What matters are the legal principles that a judicial nominee holds and the judicial philosophy that a nominee adheres to.

The idea of imposing a "litmus test" may be crude, but at least it has the virtue of possibly revealing something substantive about a given nominee's legal views. Likewise, Trump's SCOTUS list has the virtue of featuring actual judges with actual records that can be judged.

My own preference would be for judicial nominees to face some questions like this:

  • Should the Constitution be interpreted according to its original public meaning at the time it was adopted? If yes, why? If no, why not?
  • Woodrow Wilson said the Constitution should be interpreted as a living document that's flexible enough to "adapt itself to the new conditions of an advancing society." Do you agree with Wilson? If yes, why? If no, why not?
  • In your view, what criteria must be met before the Supreme Court may properly overturn one of its own precedents?

The point behind these questions is to get judicial nominees talking about legal principles and judicial philosophy. That's the stuff that matters most when it comes to judging and it's not "politicizing the judiciary" to want to find out more about it.

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  1. I agree with the Post. Voters already have all the information they need to judge these two candidates. Anything else just muddies our decision making.

    1. So… you’re in favor of mass suicide?

  2. “Do “litmus tests” harm the judiciary”

    I say yes. When libertarians are left praising the work of Antonin Scalia because he was appointed by Saint Reagan were all diminshed. It doesn’t matter at all if some Focus on the Family crank gets appointed to the SC because throwing women and their doctors in prison for killing a zygote isn’t central to modern day libertarianism. Milo Yiannopoulos is.

      1. is what?

        Gayer than your daddy’s hatband?

      2. “Central to modern day libertarianism”. I don’t get it either.

      3. is central to libertarianism. Along with all the feelings and egos of right-wingers when they go to college campuses. That’s what’s important.

        1. college campuses

          Campi“, unlike syllabus, campus is 2nd declination.

          1. “Campus” is an English word, just as “tycoon” which was taken from Japanese, which has no plurals. Yet “tycoons” is perfectly valid. Do you spell “tycoon” with the original Japanese characters? No, I doubt it. For that matter, why did you not use the more correct “campvs” spelling?

            Hypocritical grammar fascist!

        2. The freedom to feel comfortable being an actual racist bag of shit is also important, isn’t it, racist shitbag?

    1. When libertarians are left praising the work of Antonin Scalia because he was appointed by Saint Reagan

      You have some interesting fantasies when you masturbate.

      1. I mean Libertarians never criticized Scalia for his opinions on the 4th Amendment or anything. I mean I have never once heard a Libertarian ridicule Scalia’s infamous “new professionalism” statement or anything.

        1. You really are either the dumbest or most dishonest person on earth. I think it is more stupidity. You are such a simple minded moron that you can’t comprehend that Scalia could have both Libertarian and authoritarian aspects to his jurisprudence and that libertarians could praise the libertarian aspects while still objecting to the authoritarian ones. You really are a Marxist moron who sees people as one dimensional cartoon figures of good or evil.

          You are just appallingly stupid. It is no way to go through life.

          1. Why not both?

          2. You are just appallingly stupid. It is no way to go through life.

            Sadly, he probably has no choice. Well, I guess there is one alternative. But people rarely kill themselves simply for being stupid.

        2. So, you’re a Shreeky puppet, eh?

          Libertarians disagreed with Scalia on many issues, but they also have to give him credit

          Holy shit…it’s right there, in the by-line. Guess you just don’t like reading.

          1. Guess you just don’t like reading.

            My guess? Not capable. Could, in fact, be a Tony sock.

          2. He’s a troll. He read it, but he ignored it.

            1. He’s a troll.

              Oh, most certainly. It’s just….sometimes, they make it so easy, dammit!!

    2. You nauseating, incoherent cunt.

  3. Woodrow Wilson said the Constitution should be interpreted as a living document that’s flexible enough to “adapt itself to the new conditions of an advancing society.” Do you agree with Wilson? If yes, why? you are dismissed. If no, why not? our next question is…

    I like this better.

    1. Damon did come up with a pretty good litmus test, right there.

      “Do you want cake?”

  4. “respect for the intent of the elected leaders who write the laws”

    What does that even mean?

  5. God the Post are assholes. If you want to make the Constitution a living document, then its interpretation necessarily becomes a matter of politics. What the hell do these imbeciles think “a living Constitution” means if not that it changes meaning based on the political fashion of the moment? Moreover, how do they think it is going to be determined just what this “living document” has morphed into without resolving the question politically by appointing partisan judges.

    It is not so much that the “living constitution” advocates at places like the post are wrong. I think they are wrong but that is not what makes them so loathsome. What makes them so loathsome is that they don’t even understand or care what their position actually means.

    1. Is that like when people that think we must mind-meld with 18th century slave owners to divine their intentions demand that we must treat Strict Constructionism, a controversial subject, as being The Law because they say it is.

      Careful, John, I don’t want you to trip over federalism and libertarianism again. One day, you might hurt yourself

      1. No, it means that “Congress shall make no law” can pretty much stand on its own, no matter how post-structural and finger-snap-applause you get.

      2. Strict Constructionism Constitution-as-living-document, a controversial subject, as being The Law because they say it is.

        FIFY, and describes you to a T.

      3. Well god damn, I’m sold. Let’s approach building an altar to the material dialectic in a different way this time so that something something.

    2. That is how the courts and the nomination process has been politicized for my entire life. The Left has always wanted Justices who say – “Sure FDR, you can tell farmers what to grow and toss Japs into concentration camps.”

      Many conservatives want Justices who read and believe the actual Constitution, limits on power and all.

      1. The sole point of a ‘fixed’ constitution rather than a ‘living’ constitution is because the constitution was written for laymen (We the People) ourselves to be able to interpret. Judges are trained enough to parse anything whether its living or dead. But once the meme of ‘living constitution’ passes into daily discourse, then the layman must be obliged to stop interpreting any plain words and meanings (and the Constitution is the simplest plainest legal document ever created by a lawyer – compare it to say an insurance contract) and defer their own purported ‘self-governance under constraints of constitution’ to technocrats of the law.

    3. What the hell do these imbeciles think “a living Constitution” means if not that it changes meaning based on the political fashion of the moment?

      They think it means, changes done based on long-held Socialist beliefs with a solid topping of Enlightened Egalitarianism, sprinkled with Atheism+.

      Basically how Canadian court operates. If 90% of the country became Thatcherite or Bismarckian tomorrow, courts would still do what they do now. Important part is that judges are to be selected by experts (i.e. other judges) and then confirmed by The Leader (PM up here, President in US), but that’s what Living Constitution would ensure.

  6. The good news is, that with the slowly developing possibility of a Trump presidency, the media will once again discover federalism and a restrained executive.

    1. Gotta take the good with the bad.

    2. Of course they will. The problem is that they have made such assclowns of themselves that they won’t have any credibility left to do that. Victor Davis Hanson did a great piece about the media and Trump today. Basically Obama has been so appalling and the media so shameful in its willingness to cover for him, that Trump essentially has immunity. No matter how badly Trump acts, the media is powerless because they have previously covered up or excused something Obama did that was just as bad or worse. So no one cares.

      1. Memories are short, John. We now have an incoming generation in Media that doesn’t even remember Bill Clinton.

        1. No they are not. The media is done. If the media had any power, Trump wouldn’t be on his way to the nomination or anything above 30% in the polls even if he were. The entire country left and right has just stopped listening to them. The left hates them for not being sufficiently left and the right hates them for being partisan hacks. Everyone in between just doesn’t believe them anymore.

      2. Can you give us a link, please? I don’t agree with VDH politically, but I enjoy his writing style, and there’s bound to be a cool historical analogy worth following up on.

      3. Back when the most trusted man in America read the news on TV every week night, news departments were considered cost centers. They didn’t exist to make profits; they existed to win awards and bring prestige to the network.

        Then Ted Turner figured there might be a way to make money from a 24/7 news channel. This was the beginning of the end.

        Now the media says whatever it needs to say to grab as many eyeballs as they can get from a target demographic.

        News is dead, long live the news.

        1. Back when the most trusted man in America read the news on TV every week night, news departments were considered cost centers.

          Which is interesting because 176% of Americans tuned in to watch Uncle Walter deliver the news, which meant that one broadcast commanded a tremendous amount of eyeballs.

          Then Ted Turner figured there might be a way to make money from a 24/7 news channel. This was the beginning of the end.

          And yet I remember one media navel-gazing documentary that quietly concluded that the CBS-Rather deal was the beginning of the end– ie the beginning of “personality news”.

    3. More generally, the media would remember that its job is to report the doings of the executive, not cover them up and the congress would begin to act as a coequal branch of government and curb the excesses of the President.

    4. Weeeeeeelllll….maybe. There’s also a rather strong likelihood that they’ll continue to sycophantic with POTUS power and stay firmly in the lap.

      Some of them, at least.

      1. Trouser,

        They’ve never done that with a Republican President, since Nixon anyway. The media excrement didn’t stick to Reagan much, but that wasn’t for want of slinging it.

        1. They did it a bit with W. Of course, I’m talking degrees here. When he did something to expand FedGov, there was some applause/kid glove treatment from the press. And, with Afghanistan/Iraq, they did a bit, too. I think it was defended as “for fear of losing access during war/times of combat/whatever-the-term”.

          Of course, they never gave him ‘Cult of personality’ treatment, like, say, Obama.

          And, fundamentally, I agree with Paul’s assessment. I just hedge a lot in situations like this.

  7. My litmus test is a literal litmus test to tell which of these bitches is basic af.

    (Yes, I’ve made that joke before.)

    1. Is this a surface test or does it involve orifices or incisions?

      1. I suspect Trump will overpower the test and turn all litmus paper ORANGE.

      2. SCOTUS confirmation hearings should be proctological.

  8. What matters goes well beyond even principles and philosophy as explainable to a group of election-oriented senators. I would like to see a SC justice who’s seen the boundaries of state v federal jurisdiction because the judicial experience is from the side of original jurisdiction rather than appeals. Or one who understands the sausage making of legislation and regulation so can ask (re eg Obamacare case) why should we defer to legislation that is duplicitous. Or who understands technology enough to understand when/how its use can encroach on individual liberties/privacy. Or who understands economics enough to distinguish ‘regulation of interstate commerce’ from both ‘central planning’ and ‘cronyist tilting of the playing field’.

    Those don’t need to be ‘litmus tests’ for every future judge – or even be a majority of SC. Just enough to get SC to possibly put a slightly different mix of cases on its docket so that the SC can go beyond simply being a predictable extension of partisan politics and get back to being a court.

    1. Eugene Volokh or Ken White for the SC.

  9. What the Post would obviously prefer is *not* judges who show “careful thinking, reverence for the facts of specific cases, respect for the intent of the elected leaders who write the laws” and all the rest.

    Getting that kind of judge actually requires litmus tests – excluding candidates who have shown sloppy thinking – of which proggy thinking is a subset – or who have disregarded the original public meaning (not legislative intent per se) of the laws.

    What the Post wants is judges who transform Washington Post editorials into Constitutional policy.

    This of course requires litmus tests – you need the sort of judge who either agrees with the Washington Post (and NY Times) editorial page or who cares deeply what those editorial pages think of him or her.

  10. The Post makes the erroneous assumption that Progressive judges base their decisions on legitimate parameters instead of just doing whatever Progressives want to do.

  11. Should the Constitution be interpreted according to its original public meaning at the time it was adopted? If yes, why? If no, why not?

    Woodrow Wilson said the Constitution should be interpreted as a living document that’s flexible enough to “adapt itself to the new conditions of an advancing society.” Do you agree with Wilson?

    I agree with both desiderata. It should be adapted to new conditions according to its original meaning. Same as any legal document.

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