SCOTUS As a Campaign Issue

Here’s some good news from the New York Times‘ Linda Greenhouse for those of us who care a great deal about campaign finance reform, and/or are horrified already at what this election cycle is revealing about the state of pay-for-play in American politics right now:

Hillary Clinton has been telling people — a group of financial backers in Brooklyn, a house party in Iowa — that as president, she would appoint Supreme Court justices who would overturn the Citizens United decision erasing limits on political spending by corporations.

“I will do everything I can to appoint Supreme Court justices who protect the right to vote and do not protect the right of billionaires to buy elections” is the way she puts it.

Now this is what is known as “setting a litmus test” for judicial appointees, and it’s still frowned upon by Serious People who don’t quite understand that the ideological polarization of American politics has penetrated pretty deeply into the judicial system, professional legal circles, and law schools. That a small handful of legal precedents the Supreme Court can choose to preserve, modify, or reverse have risen to the level of requiring candidates for president to pay attention to them should hardly be surprising. And as Greenhouse explains, Republicans have been openly advocating judicial litmus tests on abortion and other “family values” issues for more than a generation. For nearly that long, it’s been inconceivable that a Democratic president would appoint a Justice who wasn’t committed to abortion rights, whatever they thought about the particular constitutional theories underlying Roe v. Wade.

So it’s a little late for anyone to piously cluck-cluck at HRC for elevating another issue to this level. Perhaps the recent cavalcade of hugely important SCOTUS decisions will change the CW about judicial litmus tests–or, as Greenhouse says, make the composition of the Court something you don’t just talk about at small gatherings:

During the presidential debates in 2012, neither candidate was asked a single question about the Supreme Court. If a Citizens United litmus test serves only to put the court on the campaign screen, where it urgently belongs, it will have done some good before the first vote is cast.

Amen to that.

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Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.