Mark Halperin asked Evan McMullin, the little-known conservative independent candidate for president, whether he would try to appoint justices who would overturn the Supreme Court’s decision on same-sex marriage. McMullin said that he would not. He said that he believes, as a religious matter, that marriage should be defined as the union of a man and a woman, and that he would have preferred for states to be able to decide whether to recognize same-sex marriages. But the Court has made its decision, and it is “time to move on.”
(Donald Trump has taken a different approach to the issue. In 2015* he agreed with an interviewer that opposition to same-sex marriage is a “dead issue”; in 2016 he agreed with an interviewer’s suggestion that he might appoint justices who would overturn the decision.)
McMullin made it sound as though he would be vetting his prospective justices based on a checklist of policy issues. Would he go looking for nominees who would, say, uphold Citizens United? And how would he find nominees who favor allowing school choice and overturning Roe v. Wade but could be counted on to leave Obergefell in place?
Then again, McMullin didn’t actually say that he would look for justices who would leave it in place. He just denied that he would look for ones who would disturb it. The most charitable reading of McMullin’s answer (from my point of view as someone who thinks Obergefell was extremely badly reasoned) is that he was saying that in the unlikely event that he won the election, he would not vet potential nominees based on the issue, and leaving open the possibility that he would not vet them on other policy issues either.
That would be consistent with the approach legal conservatives have actually taken over the last few decades: They have looked for conservative justices rather than ones who would be guaranteed to reach particular outcomes. If that’s what he was getting at, then it would have been better to say something like this: “I think the Court got it badly wrong in the marriage case, but the Court’s precedents deserve some respect. I will be looking for justices who apply the Constitution faithfully. I will not be asking prospective justices to commit to deciding particular cases in the ways I would like.”
* That link sure looks like it bears the wrong date.