Bill Clinton, while serving as president, was explicit in his rejection of litmus tests, which he saw as an unreasonable element inserted into politics by the Republican Party: “I will not ask any potential Supreme Court nominee how he or she would vote in any particular case,” he said in a news conference on March 23, 1993. “I will not do that.”
Hillary Clinton has no obligation to follow her husband’s model on this or any issue; from the practical point of view, he is simply a former president, and if he was wrong, he was wrong. But in this case he was right, and I suspect she knows it. Nevertheless, candidate Clinton has promised to appoint justices who oppose Citizens United, and she has joined the chorus of Democrats supporting a constitutional amendment designed to accomplish the same end, even though language explicitly limiting the freedom of speech is impossible to draft in a way that isn’t reckless.
No doubt Clinton is sincere in her belief that Citizens United was wrongly decided. Her decision to go down the road of litmus tests and constitutional amendments, however, is an artifact of our process for selecting presidential nominees. Like similar silliness on the Republican side, it reflects the outsize influence of activists who too often demand explicit commitments to propositions that are imprudent and unlikely of accomplishment.
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