Bernie, Hillary, and #SCOTUS

February 5th, 2016

At the Democratic Debate on February 4–the first head-to-head matchup between Bernie Sanders and Hillary Clinton, the Supreme Court came up several times.

First, Rachel Maddow asked Clinton about the death penalty:

Maddow: The last time I had the chance to talk with you on this issue, on the death penalty, you said that capital punishment has a place in a very few federal cases, but you also said you would breathe a sigh of relief if the Supreme Court abolished the death penalty nationwide. Tonight, do you still support capital punishment, even if you do so reluctantly?

CLINTON: Yes, I do. And — you know, what I hope the Supreme Court will do is make it absolutely clear that any state that continues capital punishment either must meet the highest standards of evidentiary (ph) proof of effective assistance of counsel or they cannot continue it because that, to me, is the real dividing line.

Clinton has not yet thrown herself into the Breyer patch on the 8th Amendment.

But then Clinton gives a nonsensical argument about how the death penalty should be prohibited by the states, but not by the federal government:

I do for very limited, particularly heinous crimes believe it is an appropriate punishment, but I deeply disagree with the way that too many states are still implementing it. If it were possible to separate the federal from the state system by the Supreme Court, that would, I think, be an appropriate outcome.


Second, Sanders reiterated that he would impose a Citizens United litmus test on any of his nominees to the Supreme Court:

Our job, together, is to end a rigged economy, create an economy that works for all, and absolutely overturn Citizens United. One person, one vote. That’s what American democracy is about.

So long as big money interests control the United States Congress, it is gonna be very hard to do what has to be done for working families. So let me be very clear. No nominee of mine, if I’m elected president, to the United States Supreme Court will get that nomination unless he or she is loud and clear, and says they will vote to overturn Citizens United.

Third, Clinton also stressed that she would only support Justices who would overturn Citizens United:

CLINTON: I want to reverse Citizens United.

Earlier this week, during a candidate forum, Clinton was asked about her process for nominating a Justice, and she replied that she has a “bunch of litmus tests” she would impose on her nominees. Here is the full exchange.

QUESTION:  Hi, Sec. Clinton.  You – the next president will have as many as three Supreme Court appointments to make. 

CLINTON:  Right. 

QUESTION:  I’m wondering beyond abortion are there any issues on which you would impose or assert a litmus test.  And if your answer is no, aren’t certain critical issues like marriage equality, campaign finance just so vital to what we believe in as Democrats that you would have to know the answer as to how these justices would rule before you make the nomination?

CLINTON:  Well, I’ll tell you what, Dave.  I do have a litmus test.  I have a bunch of litmus tests because I agree with you.  The next president could get as many as three appointments.  You know one of the many reasons why we can’t turn the White House over to the Republicans again is because of the Supreme Court. 

I’m looking for people who understand the way the real world works, who don’t have a kneejerk reaction to support business, to support the idea that you know money is speech, that gutted the Voting Rights Act.  

I voted for the reauthorization of the Voting Rights Act when I was in the Senate.  It passed 98 to nothing based on a very extensive set of hearings and research.  Supreme Court comes along.  They substitute their judgment for the Congress, signed by George W. Bush.  

That is one of our problems.  They have a view that I just fundamentally disagree with about what the way we have to keep the balance of power in our society is.  

So they have given way too much power to corporations.  They have given Citizens United, the biggest gift to the Koch brothers, Karl Rove and all of those folks whose values I don’t share, and who are doing everything they can to try to turn the clock back.  

We have to preserve marriage equality.  We have to go further to end discrimination against the LGBT community…


We’ve got to make sure…


We’ve got to make sure to preserve Roe v. Wade, not let it be nibbled away or repealed.  We’ve got work to do…


CLINTON:  – here’s how I think about it, because when I was a senator, I had to vote on Supreme Court justices.

I’m looking for people who are rooted in the real world, who know that part of the genius of our system, both economic and government, is this balance of power.  If it gets too far out of whack, so that business has too much power, any branch of the government has too much power, the delicate balance that makes up our political system and the broad-based prosperity we should be working for in our economy is the worse off for it.

So I have very strong feelings about what I’ll be looking for if I am given the honor of appointing somebody to the Supreme Court.

Jonathan Adler links to a long-ago post from Eugene Volokh on why these litmus tests are so pernicious.

Note that President Obama rejected litmus tests, although he may have applied a sister test. Justice Sotomayor relayed this story while in the Bronx–which I had not previously heard:

She said that her confirmation hearings were a horrible experience and really got her down, but she discovered a lot about the rest of the country during her one-on-one interviews with senators. “I learned what a big issue water rights are out west,” she said. “That’s not something we think about in New York.” Sotomayor said that after she won confirmation, and Elena Kagan followed her, President Obama asked Justice Ruth Bader Ginsburg, “Are you happy with the two sisters I brought you?” Ginsburg replied, “I’m very, very happy. But I’ll be even happier when you give me five more.”

I have previously blogged about how the candidates discuss the Supreme Court, including Marco Rubio (herehereherehere, and here), Jeb Bush (here and here), Rand Paul (here and here), Ted Cruz (here and here), Hillary Clinton (here and here), and Bernie Sanders (here and here).

Disclosure: I previously advised the Rand Paul campaign, and now support the Ted Cruz campaign.