According to the Washington Post, Hillary Clinton told a group of her fundraisers that she will have a litmus test for her nominees to the Supreme Court (if she should win the presidency): they will have to agree with her that the 2010 Citizens United ruling must be overturned. In that ruling the Supreme Court held that corporations have First Amendment rights to engage in political speech and to spend money on such speech. In making her pledge, Mrs. Clinton follows Bernie Sanders, who is also running for president.
If Republican critics of Mrs. Clinton wanted to be demagogues about it, they could seize on this remark and accuse her of trying to politicize the Supreme Court and destroy its independence. After all, folks on the American left have very often made this claim about conservatives who have complained about rulings that they thought were wrong and who have sought ways to push back against the Court. Mrs. Clinton’s method of getting results–stacking the Court with nominees who have made her an assurance that they will vote a certain way–is simply an exercise in raw political force. Moreover, it would be inconsistent with the ethic that seems to inform every judge these days who is nominated to the Supreme Court. When they come before the Senate Judiciary Committee, they all say that it is inappropriate for them to say how they would vote on some future case, since they are not supposed to know until they actually hear the case.
This, by the way, points to a practical problem with Mrs. Clinton’s promise. Since she has made this remark, if she is elected president, and if she gets to nominate someone to the Supreme Court, the most obvious question for the Republican members on the Judiciary Committee to ask will be: “Did the president, or anyone representing the president, seek or get an assurance from you that you would vote to overturn the Court’s ruling in the Citizens United case?” The nominee can say “yes” or “I’m not going to answer that question,” either of which answers will certainly damage his or her ability to get confirmed. Or the nominee can say “no,” in which case he or she will be revealing that Mrs. Clinton did not actually act on her campaign promise. This is messy every which way.
In any case, Republicans should resist the urge to engage in demagoguery on this question. The fact is, if Mrs. Clinton thinks the Citizens United ruling is egregiously wrong, then she has every right, and even a duty, as president to nominate justices who would correct it. And there is nothing wrong with her trying to find out of the people she intends to nominate are in fact so disposed.
On this other hand, this also means that there is nothing wrong with a Republican president applying a litmus test and nominating only justices who would vote to overturn Roe v. Wade.