by Michael Dorf
What, if anything, is wrong with a presidential candidate releasing a list of the names of his or her prospective SCOTUS nominees, as Donald Trump recently did?
The most obvious objection to the list is that it politicizes Supreme Court nominations. There is a naive version and a sophisticated version of this objection. The naive objection says that injecting prospective SCOTUS nominees into a presidential election campaign politicizes the appointments process. No one who is remotely sophisticated makes this objection in this form, but it is tempting for people who want to view Trump's list as nothing special to respond to the naive objection. For example, a HuffPo story notes the connections of people on the list to current Republican senators, which elicits from attorney Ken Gross this nothing-to-see-here-so-move-along response: “What else is new? ... You do things to ingratiate yourself to senators and others to garner their support. ... It’s politics as usual." To similar effect, the same story quotes George Washington University political scientist Sarah Binder grudgingly admitting that perhaps the Trump list marks a difference in degree from prior politics around judicial appointments but denying any difference in kind.
It strikes me that Gross, Binder, and others who point to the fact that politics already infuses judicial appointments have missed the point of the objectors. The question is not whether it is legitimate for a president or presidential candidate (or for that matter a Senator or a Senate candidate) to take politics into account in considering whom to nominate (or confirm) to a justice-ship or judge-ship. Just about everyone agrees that this is permissible and universal. The question is whether any particular means are or ought to be off limits.
Surely some means are off limits. Consider the attempt by former Illinois Governor Rod Blagojevich to sell a nomination to fill a vacant Senate seat for money laundered either through a non-profit organization or a campaign contribution. Last December, the 7th Circuit ruled that Blagojevich could not be convicted for attempting to exchange one appointment for another (which the court characterized as a familiar and legal form of logrolling), but that outright sale was criminal. Outright sale of a Supreme Court seat is likewise illegal.
I'm only invoking Blagojevich's case to show that there is a line, not to say that Trump went over it. Trump's list is pretty clearly on the legal side of the line, in the sense that it is not bribery or extortion. He is telling Republican senators and conservative voters that they can and should support him in exchange for his nominating a conservative to the Court: that's logrolling, not extortion or bribery.
But to say that Trump didn't commit a crime by listing prospective nominees is not to say that he did nothing wrong. The sophisticated version of the politicization objection says that there is something wrong with naming specific prospective appointees. Presumably that something is that it turns the selection of a Supreme Court justice into something like an election.
There are things to be said both for and against judicial elections. I tend to find the arguments against judicial elections stronger, but many states hold judicial elections, and within extremely broad limits (as articulated in the Caperton case), an elected judge can be an impartial judge. But the Constitution provides for indirect selection, life tenure, and salary protection for Article III judges on the theory that politics should enter into the selection of judges only indirectly. A prospective president who names particular individuals undermines that insulation from electoral politics.
How good is that objection? The more names that are on the list, the less serious the worry. Thus, by putting out a list of 11 judges Trump would consider, without promising that he wouldn't go beyond the list, Trump seems to have fallen short of violating the spirit of the appointments process. The non-exclusive list of 11 is simply an unconventional way for Trump to promise to nominate deeply conservative (white) people to fill the current and any future vacancies. Indeed, the very indeterminacy of the project (coupled with Trump's record of mendacity) has led some Trump-wary conservatives to a quite different worry; they don't fear that Trump has promised particular conservative nominees; they worry that he will break his promise.
If Trump's list itself does not threaten the spirit of the constitutional appointments power, this brief exploration of what might be wrong with it leads to a different conclusion about Judge Garland. During the general election campaign, the Democratic nominee will undoubtedly be asked whether he or she will re-nominate Judge Garland should the vacant seat remain vacant in 2017. In the seemingly unlikely event that Bernie Sanders is the nominee, there is an easy answer: not unless there are adequate assurances that a Justice Garland would vote to overrule Citizens United, which Sanders has declared would be a litmus test for his nominees.
For Hillary Clinton, the question is trickier. On one hand, merely equivocal support for Judge Garland could look like disloyalty both to Judge Garland and to President Obama. On the other hand, a President Clinton might want to use the prospect of the Supreme Court vacancy to energize constituencies that are outraged by the Senate's inaction on Garland but only lukewarm towards Garland himself.
The Trump list provides a good way for Clinton to dodge the question. If I were writing her talking points, I would script the following answer:
Under our Constitution, the president has the power to nominate on his or her own, and to appoint with the advice and consent of the Senate. The failure of the current Republican Senate to do its job by holding hearings on President Obama's nomination is disgraceful. But Donald Trump is also attacking our constitutional traditions. When he announced in advance his list of nominees--which included no people of color and only right-wing ideologues--he showed disrespect for our Constitution by trying to convert a presidential election into a Supreme Court election. I'm not going to follow that dishonorable path by naming any particular individual. Etc.
Clinton campaign: You're welcome.