When Hillary Clinton nominates a Supreme Court Justice to replace Antonin Scalia (assuming Merrick Garland is not confirmed before Clinton takes office), that nominee will testify before the Senate Judiciary Committee that he or she will uphold the Constitution impartially and decide cases based on the law, not his or her policy preferences or the status of the litigants. That nominee will be lying.
This is clear from what Clinton said last night about the Supreme Court and the kind of Justice she will nominate. Here is how Clinton answered Chris Wallace’s opening question regarding her view of how the Constitution should be interpreted:
You know, I think when we talk about the Supreme Court, it really raises the central issue in this election, namely, what kind of country are we going to be? What kind of opportunities will we provide for our citizens? What kind of rights will Americans have?
And I feel strongly that the Supreme Court needs to stand on the side of the American people, not on the side of the powerful corporations and the wealthy. For me, that means that we need a Supreme Court that will stand up on behalf of women’s rights, on behalf of the rights of the LGBT community, that will stand up and say no to Citizens United, a decision that has undermined the election system in our country because of the way it permits dark, unaccountable money to come into our electoral system.
Clinton never mentioned the Constitution. She never so much as nodded at it.
Clinton’s answer shows that she thinks interpreting the Constitution means “standing up on behalf of women’s rights” and “on behalf of the rights of the LGBT community.” It also means ignoring the rights of “powerful corporations and the wealthy.”
In other words, cases should be decided based (at least in part, though Clinton never qualified her answer this way) on the gender, sexual preference, or wealth of the litigants, not on what the Constitution or applicable statute provides. The Constitution, in her view, is not a set of rules that applies equally to everyone, but rather a means of favoring members of groups that appeal to Hillary Clinton.
Here, though, is the oath taken by Supreme Court Justices:
I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States.
Hillary Clinton has effectively promised to nominate Justices who will not uphold that oath.
For Republicans, and anyone else who believes in the Constitution and the rule of law, such Justices are not acceptable and cannot be confirmed. When a Clinton nominee testifies that he or she will uphold the oath, Senators ought not believe the testimony. God knows, Clinton has her flaws but they do not include an inability (with the help of her apparatchiks) to identify lawyers and judges who will uphold her anti-constitutional vision of the Supreme Court.
However the Senate races turn out, Republicans will have the votes to block Clinton Supreme Court nominees under the current rules. Unfortunately, if the Democrats control the Senate, they will change the rules as necessary to confirm Clinton’s nominees. In any case, I can’t imagine Republicans holding firm enough to block Clinton’s nominees indefinitely.
So when Clinton appointed Justices cast decisive votes, conservatives must denounce the decisions not just as wrongly decided, but as illegitimate. We should “accept” the decisions in the sense of abiding by the results, but we should not accept them as legitimate interpretations of the Constitution or the applicable statute.
We should attack the Court non-stop as illegitimate, the way conservatives used to do in the days of the Warren Court. Driving through the south in those days, I sued to see “impeach Earl Warren” signs. If worse comes to worst, I would like to see “impeach Goodwin Liu” (or whomever) signs.
The Hillary Clinton Court is likely to overreach in ways even the Warren Court never did. Its leftist decisions will become a major political issue. In advancing that issue, it will be important for conservatives to throw Clinton’s manifesto of last night in her face as the basis for arguing that the Supreme Court is acting illegitimately, not just misguidedly.