Supreme Court Litmus Tests

United States Supreme Court Justices 2010

I found an interesting article in the Wall Street Journal that highlights one of the philosophical differences between the 2016 Presidential Candidates. With respect to the issue of Merrick Garland, President Obama’s nominee to the Supreme Court, the positions of each the candidates are a bit of window into their souls regarding how they view the Commander In Chief’s role, as well as the role of the Supreme Court itself.

From the Wall Street Journal:

Senator Bernie Sanders:

“I think that we need a Supreme Court justice who will make it crystal clear, and this nominee has not yet done that, crystal clear that he or she will vote to overturn Citizens United and make sure that American democracy is not undermined,” Mr. Sanders said.

Senator Sanders is clearly a single issue candidate when it comes to the Court. No surprise, given that his entire political movement is based on an opposition to those who have achieved financial success and his hatred of the Citizens United decision (nevermind the fact that his opposition to the decision only demonstrates that he doesn’t understand it, but that’s a discussion for another day).

The disturbing thing to me is not the Senator’s failure to understand the legal principles of Citizens United, it’s that his decision making process for a Supreme Court Justice is based on what he believes the outcome should be of a given case and not the ability of the individual Justice to understand and apply the law.

Former Secretary of State Hillary Clinton:

In comparison, rival Democratic candidate Hillary Clinton, Mr. McGough said, tiptoed to that line but did not demand a public promise, saying only that she would appoint “people who believe that Roe vs. Wade is settled law and Citizens United needs to be overturned.”

Again, we have a candidate who’s criteria is based on outcomes, not the merits of any individual case. One would think that Secretary Clinton would demonstrate a little more understanding in this area given that she is an attorney by trade, but then again, she’s never really displayed much reverence for the law so perhaps I’m being overly optimistic.

Businessman/Celebrity Donald Trump:

“We’re going to have a very strong test,” Republican candidate Donald Trump said in February. “We want good, strong, conservative people that are extremely smart….I’m pro-life, and I would put in pro-life. We want many different qualifications.”

What can you say about Donald Trump? As usual, he’s a blathering idiot who speaks in platitudes and simply tells people what he thinks they want to hear, irrespective of reality or common sense. In a model of consistency, he says a lot while simultaneously saying nothing of substance. The scary thing is that nobody knows what kind of Justice Mr. Trump would nominate (including Trump himself) because he has no meaningful comprehension of the issue and simply panders to his sycophantic base of supporters.

Senator Ted Cruz:

Finally, we come to Senator Ted Cruz, who has the most experience in this area, the result of not only working as an attorney, but also as a result of having clerked for both Justice J. Michael Luttig of the 4th Circuit and Chief Justice William Rehnquist of the Supreme Court.

“Well, my litmus test for any Supreme Court justice is whether he or she will faithfully apply the constitution of the law. It’s not a specific issue,” he said in February.

While I’m not a fan of litmus tests at all, it seems to me that Senator Cruz is the only candidate with an acceptable litmus test. The role of a Justice is to apply the law, not to justify an outcome based on what they believe it should be. The sad fact is that the highest court in the land has become so politicized that appointing anyone with a predetermined position on any issue would be simply one more nail in the coffin of our legal system and our country.

The law is black and white. Something is either legal or it is not. There is no in-between. Cases that reach the Supreme Court need to be decided based on the facts of the case and whether or not the Constitution supports the decision reached in a lower court. Many of our problems in this country are a direct result of the Constitution being ignored under the ignorant guise of it being a “living document”.

The fact is, we need a Supreme Court that will apply the law as it is written, not as one believes it should be. For that to happen, we need a President that will nominate a Justice who believes that the law means what it says and should be applied as such, regardless of his or her personal beliefs.

Only one of the candidates meets that litmus test.

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