As you may have noticed, there will be an election for President of the United States in 2016. What you may not be paying as much attention to, however, is that the next president may get to appoint a justice of the United States Supreme Court.
Supreme Court justices serve lifetime terms. Occasionally a justice will resign or retire, but often only death creates a vacancy on the Court.
Of the nine members of the current Court, four of the justices are older than 75. The president elected in 2016, therefore, may very well have the opportunity to appoint one or more of the justices.
Whenever vacancies have occurred on the Court in the past there has often been discussion about the legal views of potential nominees concerning issues that one constituency or another in the country holds dear. This creates a “litmus test” for candidates for appointment. Discussion has often centered on how a nominee would vote on issues before the Court on say, abortion or other issues.
A president or a candidate for president may also express concern that justices be “strict constructionists,” adhering to the philosophy of the founding fathers. “Strict construction,” however, are words of art, something that can mean many different things to many different people. “Strict construction” can also be interpreted as a kind of code talking or dog whistling, sending a message to certain voting constituencies.
Generally candidates for president try to be vague about their preferences as to what they will look for in potential nominees for Supreme Court. Or they may revert to generalities such as “strict constructionist.”
The Supreme Court’s 2010 decision in the Citizens United case opened up the floor gates of money in federal elections, leading to basically unlimited donations, the creation of SuperPAC’s, and the over-the-top multimillion dollar donations of the superrich. Such activities have resulted in a form of arms race for cash.
Enter Hillary Clinton. Mrs. Clinton had vowed to apply a litmus test of sorts for potential Supreme Court nominees. She reportedly indicated recently to some financial supporters that she would look for Court candidates who might rule in favor of overturning the Citizens United decision.
Now no nominee for the Supreme Court could or would ever at a confirmation hearing state how they would vote on a particular issue that would come before the Court. But senators sifting through a nominee’s resume and life’s work could likely make an educated guess about how a justice might vote.
This is not to say that personal history is a totally accurate predictor of potential Court decisions. Earl Warren, for example, when appointed Chief Justice of the Court in the early 1950’s was expected to be a conservative judge. He turned out to be one of the more liberal justices in recent memory.
The irony of Mrs. Clinton’s position on court nominees and their views on restricting campaign spending is that her current campaign for president is being aided by a couple SuperPAC’s whose very existence is made possible by the Citizens United decision. Dana Milbank of the Washington Post this week discussed what he described as Mrs. Clinton’s “awkward – and often hypocritical – relationship with campaign-finance reform.”
Campaign funds often have more to do with election results than most other things. Things like candidates’ experience and their positions on issues. Most people who look at the amounts of money donated to campaigns recognize the overbearing reach of money. That is particularly true among the billionaires and millionaires sending seven and eight figure checks to the campaign affiliates of presidential candidates. They obviously see some benefits in doing so.
So maybe having a discussion in the 2016 presidential campaign about a Citizens United decision litmus test will be a discussion worth having, whether or not Hillary Clinton is right about the need for such a test.