Editor’s Note: Harry Litman is the former United States attorney for the Western District of Pennsylvania and deputy assistant attorney general in the Department of Justice. He currently teaches constitutional law in the political science department of the University of California, San Diego and practices law at Constantine Cannon. The views expressed in this commentary are his own.
Ever since the failed nomination of Robert Bork, whose rejection allowed an obscure federal court of appeals judge from Sacramento named Anthony Kennedy to become the 104th Justice of the US Supreme Court, presidential administrations have displayed extreme care and thoroughness in their vetting of candidates for the court.
A playbook has developed for use by both Democratic and Republican administrations. Many commentators believe that Presidents have adopted nuanced approaches for determining candidates’ likely votes on hot-button issues. A 1985 article in Newsweek reported that the first thing judicial candidates, sitting down to talk with Reagan’s chief judge picker, would say is “pleased to meet you.” And the second: “Roe v. Wade … was wrongly decided.”
But even as they put in place increasingly sophisticated and dependable methods to ferret out a candidate’s judicial philosophy and predict her likely voting pattern on the court, Presidents and advisers have been exceptionally careful to insist they don’t impose particular “litmus tests” – pledges to decide particular issues in specific ways.
Thus, as another of Reagan’s judge pickers insisted, “We don’t get into political questions, activities, associations or views. We don’t test candidates by ideology or use a litmus test.” Similar pledges have become compulsory for every administration.
It’s not hard to see why. “Litmus test” questions, if discovered, can and should doom a candidacy. As Lincoln famously explained: “We cannot ask a man what he will do, and if we should, and he should answer us, we should despise him for it.” (Less well-known is the lesson Lincoln drew from that axiom: “Therefore, we must take a (person) whose opinions are known.”)
It would be the ultimate dereliction of duty for a judge to decide a case based not on the facts and law, but because of a pledge to a political patron. Even if the pledge coincided with the judge’s own view, it would be corrupt of the President to trade a judicial appointment for a promise of a particular vote – as if the judge’s fealty was to his patron and not the law – and ignominious of the candidate to accept the deal.
There are compelling practical reasons as well why pledges of specific votes are a sort of third rail in judicial selection. If a candidate offered to the President his assurance of how she would vote on a matter likely to come before the court, she would have no defense against the same sorts of assurances to the Senate. She would lose the all-purpose shield of, “I’m sorry Senator, but I cannot answer that question because it is an issue that might come before me if I am fortunate enough to be confirmed.”
Thus, every President, certainly since Reagan, has insisted he did not and would not ask litmus-test questions, and given the sophistication of the nomination process, there is every reason to think that those assurances were accurate.
When I worked on judicial nominations, including Supreme Court nominations, in the Clinton administration, it was axiomatic that any litmus test questions were strictly off limits.
Enter Donald Trump. Trump’s judicial selection process actually has been efficient and professional, in marked contrast to the chaotic and noxious administration in almost all other policy areas. White House Counsel Don McGahn, who will oversee the nomination and attempted confirmation of the next justice, surely will impress upon him that he simply may not seek to exact a pledge of a particular vote of any sort from his nominee.
And with any other President, that would likely quiet any concerns. But in the first place, Trump is a comically uninhibited rule-breaker who boasts about making decisions by his gut. He is – and I wish I were the first to put it this way but I’m not – the glandular President.
More importantly, we already know Trump is wont to try to exact improper pledges of personal loyalty to him above loyalty to the law. That is exactly what James Comey said he did with him, and Comey immediately recognized the stunning impropriety of the encounter, which he understood sought to ensure the FBI director’s allegiance to the President above the law. Trump appears unaware to this day of why the demand was unseemly.
Yet more importantly, Trump is under serious threat of impeachment or criminal liability. From his selfish interests, he wants more than anything a nominee who would protect him at the Supreme Court in the very foreseeable event that questions on which his Presidency and even liberty may turn – such as: can a President pardon himself? – come to the court.
No one who has followed the news closely these last 529 days can feel confident that Trump, if left alone with a nominee, would not seek to secure some sort of personal assurance, if only in wink-and-nod form, of votes on specific issues, especially ones that may determine his personal fate.
Yet it would be extraordinarily stupid, brazen, and corrupt, and could fatally compromise the candidate for the court – reasons enough for every President in modern memory, and perhaps American history, to eschew it, save this one.
Given the high stakes of the nomination and the character of the President, expect the first round of questions in the Senate to Trump’s nominee to be a series of exacting inquiries about exactly what the President told her and whether he approached or crossed the litmus-test line.
These are straightforward inquiries, and it would be dangerous, not to mention dishonorable, for a candidate to answer dishonestly. If in fact it were to emerge that Trump had sought some sort of pledge, it would likely upend the nomination and force the administration into a do-over that would extend the confirmation battle past the midterm elections.
It is very hard to imagine such an extreme self-inflicted wound, but if any President has what it takes to inflict it, it’s Trump.