The right way to nominate a Supreme Court justice …

Back in October 1988, in that year's final presidential debate, Vice President George H.W. Bush and Massachusetts Gov. Michael Dukakis were asked about their approaches to appointing justices to the U.S. Supreme Court.

Then as now, the court was a heated issue. Only the year before, after a bitter confirmation battle, the U.S. Senate had rejected the nomination of Judge Robert Bork — an eminent but provocatively conservative jurist — and had set off the modern ideological war over the court that still rages, more intensely than ever.

But that night, on the debate stage, the contenders' answers showed how much healthier the American republic remained a generation ago:

"I don't have any litmus test," the Republican Bush declared. "But … I would … appoint people … that will not legislate from the bench, who will interpret the Constitution. I do not want … again ... a liberal majority that is going to legislate from the bench … [But] there is no litmus test on any issue."

Dukakis, the Democrat, disavowed any ideological criteria:

"I don't ask people whether they're Republicans or Democrats," he said. "… I don't appoint people I think are liberal or … conservative. I appoint people of independence and integrity and intelligence … These appointments are for life. These appointments are for life."

As I've noted in this space several times this year, it's largely because federal judges serve "for life," never answering to voters, that the court has become a key issue in this year's presidential campaign, so dominated by questions about the candidates' character, honesty and stability. The Republican Senate's refusal to take up President Obama's nomination of Merrick Garland to fill the late Justice Antonin Scalia's seat reflects the high tensions. With three other Supreme Court seats occupied by aged justices, the court's makeup for decades could be in the hands of the next president.

And alarmingly, that seems to mean Hillary Clinton will soon be doing exactly what Bush and Dukakis promised not to do — impose litmus tests and fill the court with ideological operatives.

At the opening of this year's final debate, Clinton, who has previously boasted of having "a bunch of litmus tests" for court nominees, once again made her intentions clear:

"I feel strongly that the Supreme Court needs to stand on the side of the American people, not on the side of the powerful corporations and the wealthy … stand up on behalf of women's rights, on behalf of the rights of the LGBT community, stand up and say no to Citizens United, a decision that has undermined the election system … it is important that we not reverse marriage equality, that we not reverse Roe v. Wade, that we stand … up for the rights of people in the workplace … . And the kind of people that I would be looking to nominate … would be in the great tradition of standing up to the powerful … ."

This proud, agenda-colored formula for choosing judges — not just itemizing expected rulings but literally calling for justices to choose a "side" between elements and classes of society — is startlingly different from the Dukakis-Bush pieties about keeping politics and judging separate — which has been the normative ideal throughout American history.

It was also normal, of course, for politicians in all eras to try to pick conservative or liberal justices even while denying any such intent. But their shyness about politicizing the court limited their success in doing it. Bush I, who was elected in 1988, appointed two Supreme Court justices. Clarence Thomas has been unwaveringly conservative. But David Souter became a two-decade stalwart liberal on the court.

What's most worrisome today is that it seems precious few Americans still even understand the proper role of courts, or what's wrong with Clinton-style calls for "putting court rulings to a vote," as the Washington Post's editorial board recently put it.

The Post, despite its fiery opposition to Trump, paused a couple weeks ago to complain of Clinton's recklessness concerning the court, saying such rhetoric "erodes the foundations of the judicial branch ... that judges will come to every case with fairness, that they will be modest in their application of the law, that they are not legislators, that the facts of particular cases, not pre-announced ideological commitments, will guide them."

Just so. Courts exist to apply laws and constitutional provisions to specific situations and to clarify their meaning. But a court's aim must always be to understand and uphold the law that was made by the representatives chosen by the voters, not to substitute the policy preferences of the judges themselves.

It is precisely, and only, non­political justice under law that makes "government by the people" real.

It's true, of course, that Donald Trump has been little better than Clinton on court issues. In the third debate, he promised nominees who would champion gun rights, be prolife and "have a conservative bent."

But at this writing, for 50 other good reasons, Trump seems unlikely to be appointing any Supreme Court justices anytime soon. Clinton likely will be. And given the radical way she has taken to talking about the court, the confirmation battles ahead could be, and maybe should be, epic.

Sen. John McCain, R-Ariz., recently stirred indignation by predicting that Senate Republicans will oppose any high-court candidate Clinton nominates. Unreasonable as that sounds, it would be hard to justify confirming any nominees who would not repudiate the preplanned ideological mission candidate Clinton has so explicitly offered them.

A great deal will depend — voters around the country, take note — on whether Republicans retain control of the Senate. But in the longer term, one way or another, sooner or later, a constitutional crisis over the court could be approaching if the political pollution of justice doesn't get cleaned up soon.

D.J. Tice is at Doug.Tice@startribune.com.