How Much Can Progressives Really Trust Hillary Clinton With the Supreme Court?

Last November I wrote an article for Salon titled, “More Like Reagan, Less Like FDR: I’m a Millennial and I’ll Never Vote for Hillary Clinton,” and it went viral. The core of that piece was a political analysis of Clinton as a candidate and the times in which we are living today, coming to the conclusion that the two are mismatched. As with anything containing a political message that gets widely shared online, the piece was soon subjected to the surgical, scrutinizing eye of the internet. And, par for the course, it was controversial.

The rebuttal I kept seeing was the case for the Supreme Court of the United States—specifically, who would be appointing the next two (or perhaps more) justices. My recent interview on CNN in which I personally endorsed Green Party candidate, Jill Stein, for the presidency (despite several misgivings I have about some of her policy positions), was met with this same line of criticism: “Do you want a Trump Supreme Court?”

Even now, as we are discovering through email leaks that the 2016 Democratic primary process was skewed from the beginning by a culture of bias towards Hillary Clinton at the highest levels of party leadership, which has prompted both the DNC chair and CEO to resign (thus far), there are those who swear up and down that Donald Trump is the worst thing for our democracy since Hitler was plotting taking over New York—all because of who he might appoint to the Supreme Court. Indeed, we keep hearing this argument on repeat from liberal publications and commentators—and nobody ever questions its validity. It is accepted prima facie, and sacrosanct to voters on the left.

On paper, there is merit to the position. The candidates have outlined very different visions for whom they would appoint. Trump, of course, has praised the late conservative Justice Antonin Scalia, and called the ultra-right wing Justice Clarence Thomas, his “favorite,” saying he was both “strong” and “consistent.” On the other side, Clinton has promised that her litmus test for nominees will be their willingness to overturn the controversial Citizens United v. FEC decision.

But this argument hinges on whether or not one trusts either candidate—and I do not.

Where Donald Trump is concerned, I am a big believer in the notion that our friends and social contacts reveal something about who we are as people. “Birds of a feather,” as they say. In this case, the GOP nominee has, for decades, surrounded himself with the New York liberal elite. The Clintons, besides being his golf buddies, and sharing an address in Delaware to avoid taxes, were guests at his wedding. More than that, they have been political allies on issues like universal health care. Even in this election, for however contradictory it may be to the plans he’s put forth on paper and the people he’s currently surrounding himself with, Donald Trump has brought populism back to the Republican platform, which now contains arguably stronger language than its Democratic counterpart when it comes to reimplementing the Glass-Steagall banking reform:

GOP: “We support reinstating the Glass-Steagall Act of 1933 which prohibits commercial banks from engaging in high-risk investment.”

Democratic: “Democrats support a variety of ways to stop this from happening, including an updated and modernized version of Glass-Steagall as well as breaking up too-big-to-fail financial institutions that pose a systemic risk to the stability of our economy.”

His record is also not all that conservative, having been for universal health care and pro-choice (until recently).

Much as his current rhetoric angers and frightens me, I find Trump’s newfound conservatism hard to believe which is why I have no clear preference in this election for either of the major party nominees.

For her part, Hillary Clinton has a tendency to favor expediency to moral hardlines, and a record wooing conservative voters like her husband did in the 90’s. Her political appointments are a part of that record, which is why I worry about who should would nominate to the Supreme Court.

Even in this election cycle, the Democratic nominee has given liberals and progressives reason for pause. Hillary Clinton chose as her vice presidential pick Tim Kaine of Virginia.

Kaine is a staunch opponent of federal funding for abortions, and who supports the Hyde Amendment. Though nobody, including myself, questions the Clinton’s commitment to keeping abortion a decision between a woman and her doctor—even though she used to say it should be “safe, legal, and rare”—she has indicated a willingness to compromise on that issue. “I am where I have been,” she stated in an interview last year. “[W]hich is that if there’s a way to structure some kind of constitutional restriction that take into account the life of the mother and her health, then I’m open to that.”

Besides abortion, Kaine also has a questionable record on the environment and ties to the fossil fuels industry. As The Intercept reports:

Kaine’s record on energy is mixed. He’s been supportive of offshore drilling in the Atlantic and introduced legislation to speed up liquid natural gas exports. In 2012, he pushed for the construction of one of the nation’s last new coal plants. And he helped pressure the federal government to lower Virginia’s greenhouse gas emissions goals under the Clean Power Plan.

In Virginia, the Atlantic Coast Pipeline’s biggest investor, Dominion, was the largest single corporate contributor to local politicians between 1997 and 2016, and Kaine has accepted his share of the company’s cash and gifts: more than $300,000 in total since 2001. When asked what he thought of Kaine, senior American Petroleum Institute lobbyist Louis Finkel told Intercept reporter Zaid Jilani, “He’s the best we could have hoped for.”

Clinton has made the claim that she will tighten regulations on natural gas extraction, and environmental regulations in general, but her own ties to the industry have been the subject of much hand wringing on the left. Even before choosing Kaine, Clinton’s record at the State Department, selling hydraulic fracking to the world, as Mother Jones put it, made me skeptical of her commitment to the issue. MoJo writes:

According to diplomatic cables released by WikiLeaks, one of Goldwyn’s first acts at the State Department was gathering oil and gas industry executives “to discuss the potential international impact of shale gas.” Clinton then sent a cable to US diplomats, asking them to collect information on the potential for fracking in their host countries. These efforts eventually gave rise to the Global Shale Gas Initiative, which aimed to help other nations develop their shale potential. Clinton promised it would do so “in a way that is as environmentally respectful as possible.” But environmental groups were barely consulted, while industry played a crucial role.

I suppose we’re lucky she chose Kaine, though, because she was also considering Mark Cuban. As I wrote back in May:

[S]he expressed her openness to having Mark Cuban as her Vice-President on Meet the Press, and has even reached out to him. Cuban is a known right-wing libertarian who owns a 288-foot yacht named for an Ayn Rand novel (“Fountainhead”), and has also praised Donald Trump. “I think we should look widely and broadly,” Clinton said. “It’s not just people in elective office. It is successful business people. I am very interested in that. And I appreciate his openness to it.”

Given all of this background, and seeing Clinton’s choice of running mate, I have little to no faith in the Democratic nominee to put distance between industry and her administration. And that is a major hold up for me in terms of trusting her with the SCOTUS.

But, the warnings do not end with Tim Kaine. Clinton’s appointments to the Democratic Platform Committee are equally troubling. As The Intercept reported, the Democratic nominee selected professional “influence peddlers” including industry lobbyists.

With all of these selections Clinton has sent a message to conservative voters and major industry that she also wants to be their candidate. The trouble with these kinds of appeals, besides the fact that they indicate a serious misreading of our political moment, is that they result in conservatives in high profile positions of power—or, in the case of the VP, largely symbolic high profile positions with direct influence on the national political dialogue. Clinton’s tendency towards expediency frightens me. Why should her nominees to the court be any different than her VP pick or platform appointees? She will have already won the election, and will have the ability to make up for bad appointments as the next election approaches. But by then, the damage will have already been done.

And as if Clinton’s past appointees to political positions were not enough of a red flag that her court nominees might not be exactly who she’s told us, her stance on campaign finance reform should be.

Whenever the former Secretary of State addresses the issue, she vows to get “unaccountable money out of politics.” This statement is misleading given her plan as it is designed to be heard as “I want to get money out of politics.”

Hillary Clinton does not have any desire, nor intention of implementing a public financing system. Her plan, instead, is to create a public donation matching system with transparency of donor lists. The two ideas are very different, as in one, the wealthy can still disproportionately influence elections. While “dark money,” as it is called, is a real problem, the bigger issue is the sheer amount of access the top one percent and major corporations have thanks to Citizens United lifting the spending cap on outside spending.

Equally distressing to this half-measure talk is the reality that without the controversial 2010 court ruling there would be no Hillary Clinton nomination.

Super PACs are a direct result of the SpeechNow.org v. FEC circuit court decision which was ruled based on Citizens United. Super PACs played a pivotal role in Clinton’s victory. Throughout the primary, the former Secretary’s campaign illegally coordinated with these independent expenditure groups, which helped give her the fundraising edge she needed to compete with Sanders’ grassroots network.

Clinton also relied indirectly on Citizens United in that it empowered her massive political fundraising network to exert huge amounts of influence party leaders, securing the support of over 300 superdelegates before any votes were cast, and setting the media narrative of her inevitability for the entire primary.

And so I ask you, my reader: Why would Hillary Clinton want to eliminate the very ruling that paved the way to victory for her?

Meanwhile, Donald Trump has also been critical of Citizens United, but unlike his opponent, he has personally shunned the use of super PACs. Throughout most of the primary (until very recently) the GOP nominee has not relied on their assistance, going so far as to request those supporting his candidacy to return donations to their donors. Even now, as his position appears to have softened—likely because he is strapped for cash and facing off against one of the most well-funded candidates in history—his campaign has not coordinated with independent expenditure groups, as Mother Jones reported.

But now Trump has a problem. Trump and his advisers went into the race with no super-PAC game plan (which was in keeping with most other aspects of his unconventional campaign). A super-PAC is supposed to operate independently from a campaign, but in reality, it is generally created and guided by operatives close to a candidate in the months before the candidate declares an official run. So in that period, messages are coordinated, color schemes matched, and donors who fancy that candidate are told which super-PAC to finance. In Trump’s case, that didn’t happen.

It concerns me that Donald Trump appears to walk the walk more than his Democratic opponent on this issue. That is a huge deal because, as (relatively) recent study by professors from Princeton and Northwestern found, the approval of the wealthy is determinative of policy outcomes. In other words, campaign finance the meta-issue because virtually every other issue depends on it.

If we can’t trust Clinton to keep her word in terms of Citizens United, can we really say her nominees would that much better than Trump’s—especially in light of the fact that his campaign depends less on that decision than her campaign?

I write this fully expecting to receive pushback on issues like women’s reproductive rights, privacy, and the First Amendment’s freedom of speech—all of which Clinton is, at least on paper, leaps and bounds ahead of Donald Trump. But how much are either of the candidates’ stated intentions worth?

Of course, all of this talk of the Supreme Court is premature anyway. For the next president to even fill those open seats on the bench, they will need at least a Senate majority—if not supermajority—as well as cooperation within his or her own party. In this latter area, Clinton has the advantage. Though the Democratic base is deeply and dangerously divided, most elected Democrats have fallen in line behind her. Trump, on the other hand, faces serious opposition among high-ranking Republicans, including Sen. Ted Cruz.

There is no guarantee that either candidate will appoint anyone to the court given the political climate in Washington. If Clinton loses in four years (which I believe is a strong possibility) without getting anyone on the court, that could be disastrous as well. Progressives must remember that there is nothing in the United States Constitution dictating the number of justices required on the bench (just the Judiciary Act which Congress has modified before). But without getting too far off track, even if the next president is able to get a court appointment through the Senate, it is unclear which candidate is preferable.