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Imagining Hillary’s Supreme Court

Imagining Hillary’s Supreme Court

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We’ve already addressed why the stakes are so high in a judicial sense for the 2016 presidential election. The election of Hillary Clinton or another of the (uniformly anti-gun) Democratic candidates could spell disaster for the health of the Second Amendment, even so far as the Court revoking Heller and denying the individual right to bear arms. But when we hypothesize about a Supreme Court under Hillary Clinton, who comes to mind? Has she given us any clues about whom she wants to nominate?

Supreme Court appointments are delicate matters. The Constitution does not require any specific qualifications for justices in the nation’s highest court, but in recent decades presidents have tended to choose candidates who are already federal judges. Barack Obama reportedly considered flouting expectations of experience by appointing Hillary herself as a justice when he initially took office. But in general, it seems safe to predict that any appointees of President Clinton II would have accumulated at least a bit more time on the job. The key to picking justices who will sail through the Senate confirmation is finding people with unassailable credentials and the respect of the sitting Supreme Court members. Nominating Supreme Court justices calls for finesse; which is why Hillary’s one categorical statement on the matter makes her come across as a political bomb-thrower rather than a serious contender for the leadership of the free world.

No one is going to pretend that political ideology doesn’t play a huge role in the review of Supreme Court appointees, but it is the elephant in the room, the subject that everyone is trying to get at without actually talking about it. So senators craft plenty of questions about “judicial philosophy” without being so blunt as to ask, “How would you rule on this issue?” Any appointee worth his or her salt would only reply that they were unable to answer without knowing all of the facts. 

Nominating Supreme Court justices calls for finesse; which is why Hillary’s one categorical statement on the matter makes her come across as a political bomb-thrower rather than a serious contender for the leadership of the free world. When questioned about her judicial selection criteria, she responded that she has a “litmus test” in mind: She will only consider a candidate who favored overturning the Citizens United ruling.

Aside from the obvious “that’s not how this works” issue, her proclamation is baffling for a couple of reasons. First, it sets up any future appointees for failure, or at least awkwardness. As political scientist Carson Holloway points out:

“ … 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.”

The other problem is that campaign finance, the subject matter of the Citizens United ruling, is not an especially hot-button issue for most voters. (It presumably is for Hillary, as the ruling addressed whether a corporation could spend its own money to attack a political candidate, namely her.) “A more obvious one, at least if the game here is mega-pandering to the left,” would be guns—overturning the Heller ruling—according to blogger Allahpundit. “Hillary won’t touch that one, though, because she needs states like Pennsylvania and Ohio in the general election and messing with guns is apt to spook centrist Dems.” 

The looser restrictions on campaign finance ensured by Citizens United are working wonders for Hillary’s fundraising campaign, and she’s certainly not shy about taking advantage of them. So what’s she getting at? It’s possible that she is signaling indirectly that she wants the Supreme Court to take on NRA—which, as a nationwide grassroots organization, benefits from the ruling. It would be a tidy way to say, without actually saying it, that she’s gunning for the Second Amendment. If Hillary is looking for officials who oppose the spirit of the Second Amendment, she may have some interest in these individuals, especially if she’s willing to extend her search beyond sitting judges to anyone with a legal background.

So much for Hillary’s overall strategy, which can be summed up as, “I’ll only appoint someone who hates the things I hate.” Do we know any names of potential nominees? Political analysts have come up with some educated guesses. Supreme Court expert Jeffrey Toobin wrote last year about President Obama’s “farm team,” federal judges he appointed himself. If Hillary were to become president, she might be tempted to draw from this pool—except that most judges named here haven’t been vocal about their opinions on campaign finance reform or gun rights.

However, there are a few tantalizing hints that emerge when we survey the notable names that have been dropped as possible Supreme Court material. If Hillary is looking for officials who oppose the spirit of the Second Amendment, she may have some interest in these individuals, especially if she’s willing to extend her search beyond sitting judges to anyone with a legal background.

  • Patricia Ann Millett: Millett sits on the District of Columbia Court of Appeals, from which numerous Supreme Court justices have been drawn. She has contributed generously to liberal causes, including Obama’s election campaign. While we don’t know her general opinions about the Second Amendment, she was a member of the three-judge panel that blocked a lower court’s order and reinstated D.C.’s onerous “good cause” requirement for concealed-carry permits.
  • Kamala Harris: The California Attorney General has been in gun news recently for her activist revival of an obsolete ban on firearm advertising in the state. She also helped to orchestrate the en banc hearing of the Peruta v. San Diego County case in an effort to overturn an earlier ruling that would have lessened restrictions on concealed-carry permits. While Harris is currently preoccupied with a Senate bid, she has been named as a potential Supreme Court nominee under Obama. Hillary might be inclined to follow his lead.
  • Amy Klobuchar: The Minnesota senator has been in politics for about a decade, but she has a background as a prosecutor and partner in two law firms. While her voting record isn’t completely anti-gun, she has supported causes such as extending the “assault weapons ban” and restricting “high-capacity” magazines of over 10 rounds. She also cosponsored in 2014 a constitutional amendment introduced by Sen. Tom Udall to override Citizens United. Klobuchar has the ideological inclination to make her a dream nominee for Hillary.
  • Goodwin Liu: Hillary has already been going to bat for Goodwin Liu for some time. Before he was appointed to his current seat on the California Supreme Court, Liu was nominated by Barack Obama in 2010 for the 9th Circuit Court of Appeals. Emails released following Hillary’s tenure as Secretary of State reveal that she lobbied for him, using talking points drawn up by Liu’s wife. The confirmation process stagnated, largely because senators were uncomfortable with Liu’s radical beliefs. Back in 2003 he even wrote a law review article criticizing the Supreme Court for declaring federal gun control laws unconstitutional—and Hillary was the co-author! There are only two strikes against Liu from her standpoint. First, she has stuck her neck out for him already and lost. Second, he had the audacity to support the California Supreme Court’s decision to kill a ballot measure intended to override the Citizens United ruling that Hillary claims to despise.

Any of these individuals might be attractive to Hillary as Supreme Court prospects. And she wouldn’t need to be too choosy—if elected, she would likely get to appoint several justices! Imagine a Hillary Supreme Court full of gun-haters and over-regulators, ready to save us from our own freedom and democracy. When you go to vote in 2016, don’t let this be our future!