The Troubling 2020 Democrats' Litmus Test for Judicial Nominees

There is a new, troubling trend among 2020 Democratic Presidential candidates this cycle: advocating and promoting a “litmus test,” or judicial philosophy benchmark, for judicial and Supreme Court candidates if he or she happens to be elected President of the United States.

Such a trend goes against the history of judicial nominations and threatens the principle of judicial independence. Some even call the implementation of a judicial litmus test as breaking the “political taboo.”

Even Justice Ginsburg, during her Supreme Court confirmation hearing more than 25 years ago, established the “Ginsburg Rule;” in the rule named after her, Ginsburg stated she would provide “no hints, no forecasts, no previews” of how she might cast a vote in possible future issues before the Court. Such a litmus test proposed by Democratic candidates goes in direct opposition to the Ginsburg Rule.

Last year, Senate Minority Leader Chuck Schumer decried that President Trump had created a pro-life litmus test for judicial nominees and denounced it, despite no such litmus test being used by the Trump Administration. However, Minority Leader Schumer is mum and sidesteps the issue on the prospects of a liberal litmus test for judicial candidates.

So, which 2020 Democratic Presidential candidates have announced litmus tests so far? Below are the following candidates that have publicly announced their support of litmus tests for judicial nominations:

Mayor Pete Buttigieg:

"First of all, and the simplest thing, is appointing justices and judges who recognize that [abortion] is part of American freedom,” he said. “Another is to make sure that we’re not starving America of resources — not just for that kind of reproductive care, abortion care, but all kinds of reproductive care."


Senator Kristen Gillibrand:

"So today, I'm announcing that as president, I will only nominate judges—including Supreme Court justices — who will commit to upholding Roe v. Wade as settled law and protect women's reproductive rights."


Former Congressman Beto O'Rourke:

"[We need] a justice who believes in a woman’s right to make her own decision about her own body and have access to the health care that ensures that she can . . . the next justice to be nominated can only be confirmed if he or, importantly, she can meet those qualifications."


Senator Bernie Sanders:

"If you’re asking me would I ever appoint a Supreme Court justice who does not believe in defending Roe vs. Wade, who does not believe that a woman has the right to control her own body, I will never do that."


This liberal litmus test is not just limited to abortion. Senator Sanders has stated that he would use an additional benchmark for judicial candidates and their stances on free speech. As our summary notes:

Sanders would only nominate a Supreme Court Justice who would reverse Citizens United. Sanders has stated that any Supreme Court nomination he made “would make overturning Citizens United one of their first decisions.”


The RNLA Judicial Affairs Committee has been releasing 2020 Democrats on Judges summaries, offering quick snapshots into the top tier candidates' views on judicial nominations, judges, and the courts. We will be updating these summaries as they continue their campaigns. You can view all the summaries here.