The Supreme Court isn’t usually a hot topic in the early days of a presidential campaign.
But the 2016 election will be different.
By the time the next president strides into the Oval Office, three of the Court’s nine justices will be in their 80s. The stakes are high as the country is still digesting one of the most historic terms in recent history, which included blockbuster cases on Obamacare and same-sex marriage.
Future justices could potentially face cases on everything from campaign finance, affirmative action, abortion and voting rights. And, mindful that ideological shifts can occur once a justice takes the bench, Court watchers want to be sure presidential candidates are as prepared as possible.
For their part, judicial conservatives – stung by some nominees such as David Souter who ultimately disappointed them – want a plan. They want to know more about a presidential hopeful’s intentions when it comes to the appointment of judges.
“We have had seven Supreme Court appointments in the past 20 years of Republican presidential administrations. But we nevertheless do not have a Court that consistently adheres to the principles of limited, constitutional government,” said Leonard Leo who served as a key adviser and coalitions leader to the George W. Bush administration on judicial selection and U.S. Supreme Court appointments. “Opinion and political leaders need to press Republican primary candidates about what they will do differently than previous GOP presidents.”
Conservatives seized on recent comments Donald Trump made about the Court in an interview with Bloomberg News. He offered praise for Justice Clarence Thomas, and blasted Chief Justice John Roberts for voting to uphold key a key provision of the health care law. But it’s what Trump said about his own sister that surprised some in conservative circles.
He was asked if he would ever consider appointing Maryanne Trump Barry, who is a federal judge, for a seat on the Court.
“She would be phenomenal,” he responded.
He was quick to add with a smile: “We’ll have to rule that out at least temporarily.”
Ramesh Ponnuru, of the National Review, pounced on the comments the next day, calling Barry a “pro-abortion extremist judge.”
For conservatives, one of the biggest mistakes a president can make is to nominate someone without insisting that the candidate have a strong record. Leo says conservative activists want to know whether candidates will nominate people “who have a demonstrated record of applying the Constitution as it is written and enforcing the limits on government power.”
The memory of the Souter nomination is still fresh. President George H.W. Bush nominated Souter in 1990, based in part on the recommendations of his staff. Souter became a consistent vote for the liberals, eventually stepping down in 2009 and giving President Barack Obama the chance at a nominee.
Similarly, George W. Bush was accused of relying too much on his friendship with Harriet Miers when he nominated her to the bench in 2005. The nomination fell apart soon after, largely torpedoed by conservative fears that she had no established judicial record.
In recent comments, Jeb Bush seemed sympathetic to those concerns.
“One of the frustrations that I had is that people that don’t have a proven record get appointed to the Court and then they wander,” Bush said while never mentioning the role his father and brother played in recent Supreme Court nominations.
Bush talked strategy, emphasizing that a president might have to be ready for a “big huge fight” on the Hill to push through a desired candidate.
“You got to fight like hell to make sure they get passed,” he said.
Leo and others are well aware that even the most closely vetted judicial candidates can sometimes issue unexpected opinions once they take the bench.
Lee Epstein, a political science professor at Washington University School of Law, discusses what she calls the “ideological drift” of some justices in her book, “The Behavior of Federal Judges.”
“A Justice’s ideology might change during his time on the Court,” she and her co-authors, William M. Landes and Richard A. Posner, write. “That is true of other people, why not of Supreme Court justices?”
Epstein says that since 1937 the “drift hypothesis” is supported for 12 of the 23 Justices who served a minimum of 15 terms. Eight of those became more liberal and four became more conservative. What causes the drift? Epstein says it’s hard to tell but mentions one factor might be “the tendency for the gap between the ideology of a justice and the ideology of the President who appointed (the justice) to widen with the length of the Justice’s service.”
That suggests a trade-off. A president may favor appointing justices of younger age so that long after the end of his or her administration, that justice would continue that president’s legacy.
But the “drift hypothesis” suggests that a president might not just look at age, but do more to make sure that a candidate has a solid judicial record.
“A judge’s performance on the Court of Appeals will provide better evidence of his ideological commitments than experience as a practicing lawyer,” the authors write.
It’s little wonder that eight of the nine current sitting judges served as lower court judges.
For their part, liberals seem to have only one major complaint about the nominees recent Democratic presidents have put on the court: There are only four of them.
Democratic presidential front-runner Hillary Clinton has not been shy about targeting at least one major decision she’d like to see overturned.
“I think the Supreme Court made a grave error with its Citizens United decision,” Clinton said during an appearance in Iowa. “I will do everything I can to appoint Supreme Court justices who will protect the right to vote and not the right of billionaires to buy elections.”
But the notion of a presidential candidate suggesting a litmus test for a Supreme Court nominee does not sit well with everyone.
Critics of Clinton’s comments included retired Justice John Paul Stevens, who wrote the stinging dissent in Citizens United and was nominated to the bench by Gerald Ford.
“If I were running for president, I don’t think I would make such a litmus test,” he said during a talk in May hosted by the liberal leaning Alliance for Justice. “Even though I think the case ought to be overruled, no doubt about that.”