The Death of a Judicial Taboo

By Noah Rothman

Friday, December 20, 2019

“I will say the same thing that every president has said since this issue came up,” President Barack Obama told reporters in 2010. “I don’t have litmus tests around any of these issues.”

The president issued his blanket declaration when asked if his choice to replace retiring Supreme Court Justice John Paul Stephens should share his support for Roe v. Wade. “I will say that I want somebody who will be interpreting our Constitution in a way that takes into account individual rights,” Obama continued. “And that includes women’s rights.”

Of course, that admission could be and was correctly construed as a “litmus test.” But it was nevertheless critical even for a president whose party enjoyed prohibitive control over the legislative branch to deny that he wanted to see the nation’s highest court deliver specific political outcomes.

We have come a long way over the course of this decade.

On Wednesday, when PBS anchor and Democratic debate moderator Judy Woodruff asked former South Bend Mayor Pete Buttigieg if his judicial nominating philosophy included any “litmus tests,” he did not hesitate. “Yes,” Buttigieg affirmed. He added that the majority decision in Roe was non-negotiable, of course, but he also believes “voting rights are human rights,” and he expected his judicial nominees to consider future cases with that determination in mind.

Buttigieg is only the latest Democrat to commit to appointing justices who will decide the cases before them less on their merits than in the effort to secure predetermined political outcomes. In this election cycle, New York Sen. Kirsten Gillibrand was the first. “Traditionally,” Gillibrand wrote, “presidents and presidential candidates haven’t drawn lines in the sand on judicial appointments, to preserve the impartiality of our judiciary.” As it turned out, Gillibrand believed that kind of “impartiality” was a bad thing.

In the months that followed, Gillibrand was joined by Sens. Bernie Sanders, Cory Booker, and Rep. Seth Moulton, all of whom pledged only to consider candidates for the judiciary who shared their political values. Sen. Elizabeth Warren branded her advocacy for prejudiced judges a rare species of intellectual independence, promising to appoint only “neutral and fair judges who actually respect the law and cases like Roe instead of right-wing ideologues bent on rolling back constitutional rights.”

Almost all these Democratic candidates predicate their embrace of litmus tests on the actions of Senate Majority Leader Mitch McConnell and his refusal to consider Obama’s final Supreme Court nominee, Judge Merrick Garland. They contend that Republicans politicized high-court appointments first, and it would be malpractice if Democrats declined to respond to that escalation of partisan hostilities. This is a rationalization that doesn’t stand up to scrutiny.

Like it or not, McConnell’s argument was not that Garland didn’t evince the right ideological convictions; it was that the U.S. Senate should withhold its right to advise and consent to Supreme Court nominations advanced by a “lame-duck president.” Indeed, he cited as precedent the comments made by none other than former Vice President Joe Biden, who, in 1992, declared that the Senate should not consider and the president should not name a high court nominee “until after the November election is completed.” In fact, by naming Garland, McConnell insisted that Obama served him up only as a martyr “in order to politicize it for purposes of the election.”

In the political arms race around the Supreme Court, civic propriety has become the first casualty. But if the legislature declines to perform its Constitutional role as the sole arbiter of political (as opposed to legal) questions, it will fall on the Court to act in its stead. Given those conditions, the overt politicization of the judiciary is inevitable. That lamentable trend is observable not just in judicial nominations but also in the unseemly cults of personality that have sprouted up around the Court’s justices.

The political culture is so far gone that the notion that Supreme Court nominees’ judicial philosophy should be independent of their personal politics seems quaint today. It’s hard to remember why there was a taboo in the first place.