Candidates Attack Courts as Best Argument for Election

Judicial appointments are among a president’s most lasting legacies, and in this election cycle candidates on both sides have made troubling remarks regarding litmus tests for their future appointments. With candidates as widely disliked as Clinton and Trump, each seemingly unable to provide valid cases for themselves as leaders, the courts have become political fodder. Both sides are proclaiming that voters should consider them not for their own views, temperament, judgement, and leadership qualities - but because of how they would attempt to stack the courts based on specific expected decisions to obtain the results they want rather than jurisprudence and qualifications.

Conservatives were outraged when President Obama criticized the Supreme Court Citizens United ruling in his 2010 State of the Union address. He was criticized for both the substance of his remarks, and for criticizing a SCOTUS decision in a national address with members of the court seated just feet away.

In Citizens United v FEC the Supreme Court ruled 5-4 that the First Amendment prohibits the government from restricting political expenditures by organizations. The Supreme Court has long held – since the 1976 Buckey v Valeo decision - that political spending is the exercise of free speech. In that decision the court wrote:

“A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.  This is because virtually every means of communicating ideas in today’s mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event. The electorate’s increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech.”

Conservatives were also outraged at the SCOTUS ruling that ObamaCare funding is essentially a tax, and that Congress forcing Americans to purchase health care upholding the Affordable Care Act is permissible.

Liberals have been outraged at District of Columbia v Heller and McDonald v Chicago, which declared that the Second Amendment is an individual right (not restricted to government militias, as the left would like) and for the first time incorporated the right into the states – declaring that it is fundamental to all Americans.

In the current presidential campaign, candidates from both parties have attacked the judiciary for these kind of decisions and issued litmus tests for their future appointments. On the Democratic side, Clinton has made gun rights and overturning Citizens United priorities, and Trump has now gone well beyond the norm by attacking a sitting judge, using racial overtones, in a case in which he is directly involved.

His recent attacks on U.S. District Judge Gonzalo Curiel, who is handling two class-action lawsuits against Trump University in San Diego, is particularly troubling, since Trump has made racial remarks about the Indiana-born judge, and signaled interest in a vendetta against him should he be elected President.

“They ought to look into Judge Curiel, because what Judge Curiel is doing is a total disgrace. Okay? But we will come back in November.” Says Trump.

What would be the impact on judicial independence should this happen?

Conflicts between the courts and the politicians are common and expected, which is why the Constitution mandates lifetime tenure for federal judges and seeks to protect them against recrimination. But Trump is also not powerless, particularly if elected President. If he thinks that Curiel has engaged in misconduct, he could file a complaint with the federal court of appeals, stating that Curiel was biased in his behavior and proceed with a disqualification motion.

We’ve moved a long way from President Eisenhower’s acceptance of school desegregation rulings, and sending Federal troops to protect black students when the state of Arkansas refused to do so.

Although the courts tend to be even-handed, with rulings that occasionally anger both sides of the aisle, they are increasingly used as foils in political campaigns. Ted Cruz, during his campaign, characterized judicial rulings on gay marriage and ObamaCare as political decisions, and called for a constitutional amendment requiring members of the Supreme Court to undergo judicial retention elections.

Americans should consider that both Clinton and Trump, in making such statements, are more focused on how they can obtain clearance to undermine the Constitution and more power for the Government, rather than how to provide more power to the citizenry.