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2020 Dems break political taboos by endorsing litmus tests
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 Gillibrand (D-N.Y.) and Bernie Sanders (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 Booker (D-N.J.) and Rep. Seth Moulton (D-Mass.).
Likewise, Sen. Elizabeth Warren (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 Bullock (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."
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 Garland, 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 Trump to tap conservative Neil Gorsuch for the seat.
Trump's second Supreme Court nominee, Brett Kavanaugh, 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 Clinton 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 McConnell 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.