Bernie Sanders on Judicial Selection
In a speech to an overflow crowd in Portland, Oregon, Bernie Sanders reiterated what he described as one of his few campaign promises: “My nominees to the U.S. Supreme Court will in fact, have a litmus test and that test will be that they will have to tell the American people that their first order of business on the Supreme Court will be to overturn Citizens United.”
While ideological screening of Supreme Court nominees by Presidents is the norm and privately administered litmus tests probably not uncommon, Senator Sanders goes one step further. He would require that nominees publically commit to case outcomes. Presumably, nominees would “tell the American people” about their specific commitments at a press conference or other public event, or at least in a signed statement made available to the press.
Sitting judges in jurisdictions that have adopted Rule 2.10(B) of the ABA Model Code of Judicial Conduct may have difficulty making the commitment required by Sanders. Rule 2.10(B) prohibits a judge from making pledges, promises, or commitments inconsistent with judicial impartiality in connection with cases, controversies, or issues likely to come before the court. But President Sanders could easily select a judge from a jurisdiction that has not incorporated Rule 2.10(B) into its judicial code or nominate a lawyer employed outside of the judiciary. And that nominee would be under no legal or ethical duty to refrain from making commitments on any number of issues, controversies, and cases. There is no code of judicial conduct applicable to Supreme Court Justices much less a code applicable to nominees for that office.
Of course, once on the Court the new Justice would be subject to the federal disqualification statute which requires recusal from cases in which a judge’s impartiality might reasonably be questioned. But this should not be much of a roadblock since Supreme Court Justices decide their own recusal motions.
Although under President Sanders’ proposal judicial impartiality in fact and in appearance will suffer, there is a bright side. If President Sanders filled a majority of seats on the Court with pre-committed Justices, lawyers before the Court could significantly reduce the time and effort expended on the argument sections of their briefs.
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