The possible 2020 candidate is getting a fair amount of Twitter ridicule, from the left and the right, for tweeting, “#SCOTUS nominations should be made based on the individual’s commitment to upholding the Constitution, nothing more, nothing less.” The claim is certainly an overstatement: What about writing ability, intelligence, and good judgment? But the main criticism Schultz is getting is that he has merely stated an unhelpful truism.
I don’t think that’s right. To say that fidelity to the Constitution is what’s most important in a justice is to say that many other things that politicians sometimes describe or act as though they are foremost in importance aren’t: e.g., fealty to abortion rights, empathy for the weak (excluding unborn children), moderation, attachment to precedent, etc. It’s certainly fair to say that it’s no simple matter to determine what “upholding the Constitution” means in the context of certain cases, or whether a prospective justice has that commitment. (The tweet does not imply that it is a simple matter.)
I will not be shocked if Schultz makes other comments about the Constitution and judges that are less sensible than this tweet. (He has already said that he wants to nominate justices who can win supermajorities in the Senate, which means he wouldn’t be nominating any.) But he has, at least, found the right starting point, which is more than I would say for others.