You can call it an attention-seeking gesture by a floundering presidential candidate, or just an inevitable reaction to conservative threats to constitutional rights. But in either event, Senator Kirsten Gillibrand has taken a small but significant step beyond conventional pro-choice politics, as she announced in a Medium post:
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.
I realize that traditionally, presidents and presidential candidates haven’t drawn lines in the sand on judicial appointments, to preserve the impartiality of our judiciary.
That tradition ended when Mitch McConnell obstructed the nomination process and stole a Supreme Court seat, when Donald Trump nominated dozens of ideologically extreme judges hand-picked by far-right think tanks, and when Republicans confirmed a Supreme Court Justice who is credibly accused of sexual misconduct.
She might have also cited this very particular precedent for a judicial litmus test on the abortion issue, from 2016:
During the beginning of the third presidential debate, Trump came out hard against abortion. He affirmed that, if elected, he would appoint only pro-life justices to the Supreme Court and that Roe v. Wade would be “automatically” overturned. (That’s not how the Supreme Court works.) He would then leave it up for the “states to make a determination” on the issue.
As president, Trump later walked back this pledge, just as he did an earlier impolitic remark suggesting that women should be punished for illegal abortions in a post-Roe regime (a mistake that Gillibrand did mention in her piece). But by then, a litmus test was largely moot because the SCOTUS vetting and selection process he set up, under the direction of longtime Federalist Society official Leonard Leo, reduced the possibility of a stealth pro-choice justice to near zero.
And actually, though it was expressed a bit differently from Gillibrand’s pledge, it’s reasonably clear that Hillary Clinton, her predecessor as the junior senator from New York, established an abortion litmus test even before Trump did, as The Hill reported at the time:
Speaking at a Democratic presidential forum on Wednesday night, a person in the crowd asked Clinton whether she would impose a “litmus test” upon potential Supreme Court justices other than on the issue of being pro-abortion.
“I do have a litmus test, I have a bunch of litmus tests, because the next president could get as many as three appointments,” the former First Lady responded. “It’s one of the many reasons why we can’t turn the White House over to the Republicans again …”
After mentioning she’d demand judges committed to voting rights and opposed the idea that “money is speech,” Clinton said:
We have to preserve marriage equality … We have to go further to end discrimination against the LGBT community, we’ve got to make sure to preserve Roe v. Wade, not let it be nibbled away or repealed.
So Gillibrand isn’t breaking entirely new ground. But the explicit way in which she singled out abortion rights as a line in the sand she’d defend through appointments is interesting. Unfortunately for her hopes of getting some sustained attention for this stance, it’s one that will likely be echoed by other candidates sooner rather than later. In reality, nobody thinks anyone in the 2020 Democratic field — including former pro-lifers Joe Biden and Tim Ryan — would run the risk of placing anyone on the Supreme Court who would countenance a rollback of the federal constitutional right to choose. But pressure to elevate that position to a solemn and explicit pledge reflects the simple fact that after years of false alarms, reproductive rights really are hanging by a thread, which will be severed or strengthened by the results of the 2020 elections.