Democratic presidential hopefuls are embracing a political tool long considered taboo: setting litmus tests for potential judicial nominees.
A torrent of legislation restricting abortion rights in several states has prompted a scramble among several candidates to set more explicit ideological and jurisprudential conditions for would-be judicial nominees.
Chief among those conditions: that any potential judicial nominee back the ruling in Roe v. Wade, the landmark 1973 Supreme Court case that established a woman’s right to an abortion. So far, a handful of candidates for the Democratic nomination, including Sens. Kirsten GillibrandKirsten GillibrandWarren, Democrats urge Trump to back down from veto threat over changing Confederate-named bases Warren, Pressley introduce bill to make it a crime for police officers to deny medical care to people in custody Senate Dems press DOJ over coronavirus safety precautions in juvenile detention centers MORE (D-N.Y.) and Bernie SandersBernie SandersThe Hill’s 12:30 Report: Milley apologizes for church photo-op Harris grapples with defund the police movement amid veep talk Biden courts younger voters — who have been a weakness MORE (I-Vt.), have committed to appointing only justices that would uphold that decision.
Those pledges underscore the extent to which presidential candidates have become comfortable with shattering what has been considered largely off-limits in campaign politics.
“There’s been a discomfort with crossing that line. I think what we’ve seen over the past three years is a breakdown in that discomfort,” Christopher Schmidt, a constitutional law professor at Chicago-Kent College of Law.
Gillibrand became the first 2020 contender to commit to a hard judicial litmus test, announcing earlier this month that she would only nominate judges who would uphold Roe should a challenge to the ruling emerge.
That pledge came on the same day the Georgia’s Republican governor, Brian Kemp, signed into law a bill that would ban abortions when a fetal heartbeat can be detected — usually about six weeks into pregnancy.
Since then, several others have joined Gillibrand, prompted in part by the passage of a measure in Alabama that would outlaw abortions at every stage of pregnancy with few exceptions, as well as laws in other states restricting the procedure. Those candidates include Sanders, Sen. Cory BookerCory Anthony BookerRand Paul introduces bill to end no-knock warrants Black lawmakers unveil bill to remove Confederate statues from Capitol Harris grapples with defund the police movement amid veep talk MORE (D-N.J.) and Rep. Seth MoultonSeth MoultonEx-CBO director calls for more than trillion in coronavirus stimulus spending Overnight Defense: Trump’s move to use military in US sparks backlash | Defense officials take heat | Air Force head calls Floyd’s death ‘a national tragedy’ Democrats blast Trump’s use of military against protests MORE (D-Mass.).
Likewise, Sen. Elizabeth WarrenElizabeth WarrenWarren, Democrats urge Trump to back down from veto threat over changing Confederate-named bases OVERNIGHT DEFENSE: Joint Chiefs chairman says he regrets participating in Trump photo-op | GOP senators back Joint Chiefs chairman who voiced regret over Trump photo-op | Senate panel approves 0B defense policy bill Trump on collision course with Congress over bases with Confederate names MORE (D-Mass.) has vowed to appoint “neutral and fair judges who actually respect the law and cases like Roe instead of right-wing ideologues bent on rolling back constitutional rights.”
Other Democratic contenders, however, have been leery to set a hard standard for would-be judicial nominees.
Montana Gov. Steve BullockSteve BullockKoch-backed group launches ad campaign to support four vulnerable GOP senators Overnight Energy: US Park Police say ‘tear gas’ statements were ‘mistake’ | Trump to reopen area off New England coast for fishing | Vulnerable Republicans embrace green issues Vulnerable Republicans embrace green issues in battle to save seats MORE (D) made clear in an interview with The Hill that the Supreme Court’s decision in Roe should stand. But he also dismissed the notion of a litmus test for judges, suggesting that doing so would undermine the impartiality of the judiciary.
“As a lawyer, I am certainly going to talk to judges, try to get the sense that they share my values, but you can’t necessarily set a litmus test because judges can’t actually say what they’re going to do.”
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To be sure, White House hopefuls have long signaled their preferences in nominating judges and justices but have rarely drawn clear lines when it comes to specific cases, at least publicly.
Former President Obama, for instance, declared in 2010 that there would be no litmus test as he weighed potential nominees to replace former Supreme Court Justice John Paul Stevens, even as he noted that he wanted to tap “somebody who’s going to be interpreting our Constitution in a way that takes into account individual rights, and that includes women’s rights.”
“What we had before is that candidates clearly signaled that they had litmus tests, but no one wanted to admit it straight up,” Schmidt said.
But some Democrats argue that Republicans have left them with no other choice than to set such stringent conditions.
In a Medium post announcing that she would only nominate judges committed to upholding Roe, Gillibrand acknowledged that setting such a specific litmus test was unusual. But, she said, the GOP’s efforts to implement sweeping abortion restrictions and stack the courts with conservative judges allowed for extenuating circumstances.
At the same time, many Democrats view the GOP’s refusal to consider Merrick GarlandMerrick Brian GarlandDon’t mess with the Supreme Court Graham on potential Supreme Court vacancy: ‘This would be a different circumstance’ than Merrick Garland Prosecutor who resigned over Stone sentencing memo joins DC attorney general’s office MORE, Obama’s nominee to replace the late Justice Antonin Scalia in 2016, as a blatant politicization of the high court. The blockade of Garland’s nomination ultimately paved the way for President TrumpDonald John TrumpSenate advances public lands bill in late-night vote Warren, Democrats urge Trump to back down from veto threat over changing Confederate-named bases Esper orders ‘After Action Review’ of National Guard’s role in protests MORE to tap conservative Neil GorsuchNeil GorsuchJudd Gregg: A government in free fall The 7 most anticipated Supreme Court decisions Chief Justice Roberts wisely defers to California governor in church challenge MORE for the seat.
Trump’s second Supreme Court nominee, Brett KavanaughBrett Michael KavanaughGOP senators urge Trump to back off Murkowski threat Judd Gregg: A government in free fall The 7 most anticipated Supreme Court decisions MORE, was confirmed by the Senate in October, solidifying the court’s conservative majority and angering Democrats, who accused Republicans of disregarding sexual assault allegations against Kavanaugh.
Jon Reinish, a Democratic strategist and former Gillibrand aide, said that conservatives have long used litmus tests for potential judges to motivate their voter base. Meanwhile, Democrats have largely failed to weaponize the judiciary in the same way, often to their political detriment, he said.
“Clinton, and to a big extent Obama, never used the judiciary in a successful way to motivate voters. They kind of clung to this sacred impartiality standard that I think has pretty much gone out the window because conservatives have pushed it out the window,” he said.
It’s not the first time candidates have set clear litmus tests for judges.
During his first presidential run in 2016, Sanders asserted that he would only nominate Supreme Court justices committed to overturning Citizens United v. FEC, the 2010 case that paved the way for direct corporate contributions in federal elections.
That same year, former Secretary of State Hillary ClintonHillary Diane Rodham ClintonWhite House accuses Biden of pushing ‘conspiracy theories’ with Trump election claim Biden courts younger voters — who have been a weakness Trayvon Martin’s mother Sybrina Fulton qualifies to run for county commissioner in Florida MORE declared that she had “a bunch of litmus tests” for Supreme Court nominees, saying that she would choose justices that would uphold Roe and overturn Citizens United.
But Reinish said that the issue of the courts was a fleeting one for Democrats in 2016. Republicans, on the other hand, “talked very, very consistently about the judiciary,” using it to rally the support of hard-line conservatives and evangelical voters.
“Trump made promises that he would nominate pro-life judges and that was enough for a lot of conservatives, a lot of evangelicals,” he said. “We’ve seen it most clearly on the presidential level. But If you ask [Senate Majority Leader] Mitch McConnellAddison (Mitch) Mitchell McConnellSenate advances public lands bill in late-night vote GOP senator to try to reverse requirement that Pentagon remove Confederate names from bases No, ‘blue states’ do not bail out ‘red states’ MORE about immigration, he talks about judges; if you ask him about health care, he talks about judges.”
To an extent, the more prominent calls for judicial litmus tests are a reflection of a broader reality: While judges are often thought of as hovering above the political fray, Americans “assess them and talk about them based on how they decide these really hot button issues,” Schmidt, the law professor, said.
“I think the no litmus test rule has been more of a formal thing,” Schmidt said. “In the end, is it really that much different a world now in which [candidates] have broken through this norm that was mostly artificial before?”
Reid Wilson contributed to this report.