“I HAVE very clear views about what I want to see to kind of change the balance on the Supreme Court,” Democratic presidential nominee Hillary Clinton said during the second presidential debate. “I would want to see the Supreme Court reverse Citizens United,” she explained, while her Republican rival, Donald Trump, favors judges who would “reverse Roe v. Wade and reverse marriage equality,” she said. Ms. Clinton’s emphasis on appointing judges who will rule in specific ways on particular issues echoed her earlier statement that, “I do have a litmus test, I have a bunch of litmus tests, because the next president could get as many as three appointments.”
Perhaps Ms. Clinton is simply stating the obvious: She would prefer to appoint judges who would rule the way she would like them to rule on specific, hot-button issues. But her candor is not costless, and the attitude it represents should not be accepted as normal. As a potential president, Ms. Clinton should have more respect for the independence and dignity of the judiciary as a co-equal but non-political branch of government.
Selecting judges is not just policymaking through other means — or, at least, it should not be. Every step closer to accepting ideological litmus tests developed in the heat of political campaigns as the basis for judicial selections — every step toward putting court rulings to a vote — erodes the foundations of the judicial branch. What are those foundations? That judges will come to every case with fairness, that they will be modest in their application of the law, that they are not legislators, that the facts of particular cases, not pre-announced ideological commitments, will guide them. These are among the considerations justifying the expectation that judges recuse themselves when their impartiality is in doubt.
Yes, some states have direct judicial elections. This is a flaw, not a feature, of the country’s criminal justice system, as the increasing politicization of judicial elections around the country suggests. And, yes, Mr. Trump has been worse. He set a terrible precedent when he released a list of people he might appoint to the bench, essentially making them part of the campaign. But that does not change the fact that Ms. Clinton should know better.
Of course politics sometimes intrudes into judging, and judges have different points of view. This unremarkable insight does not suggest that Americans should surrender to cynicism. It poses a challenge to limit the degree to which it is true. Standards in this realm start at the top. Presidents selecting judges should do so based on legal qualifications, intelligence, a record of even-handedness and, at most, general questions about judicial philosophy. The Senate should set similar guidelines for itself as it considers presidential nominees. The candidates are making that harder this year, not easier.
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