A Critical Topic at Wednesday's Debate: The Supreme Court


At this Wednesday’s debate, moderator Chris Wallace has said that he’ll ask the candidates questions about debt and entitlements, immigration, the economy, foreign hot spots, fitness to be president and one topic that has received far too little attention in this election cycle: the Supreme Court.

As in every presidential cycle, the Supreme Court is on the ballot in November. This year that’s more true than usual. Republicans in the Senate have spent more than seven months holding open a Supreme Court seat specifically for Donald Trump to fill, an exercise not only at odds with our constitutional framework but patently absurd given the number of senators participating in this blockade who claim not to support Trump’s election. Given this unprecedented obstruction, the impact on the Court will be more immediate than ever before. Nor have the stakes ever been higher. After a decade in which the Court’s far-right bloc held a slim but aggressive majority, this election could be an opportunity to restore some sanity to the bench and halt the Court’s ideological adventurism. Or it could push the Court and the country down a darker path.

As on so many other issues, there’s a sharp divide between the candidates.

Throughout the course of the campaign, Hillary Clinton has made clear that she believes the Constitution protects all of us, not just the wealthy and powerful. And she’s said she’ll nominate jurists whose approach to the law is deeply grounded in the core Constitutional values of liberty, equality, and justice. As she said in the last debate:

I want to appoint Supreme Court justices who understand the way the world really works, who have real-life experience, who have not just been in a big law firm and maybe clerked for a judge then gotten on the bench, but you know, maybe they tried some more cases, they actually understand what people are up against. … I would like the Supreme Court to understand that voting rights are still a big problem in many parts of our country. That we don’t always do everything we can to make it possible for people of color and older people and young people to be able to exercise their franchise. I want a Supreme Court that will stick with Roe v. Wade and a woman’s right to choose, and I want a Supreme Court that will stick with marriage equality.

Donald Trump has also been clear about the kind of justice he’d appoint to our nation’s highest court: jurists who would put the interests of wealthy special interests above the rights of ordinary Americans.

In fact, he’s gone a step further by announcing that he’d outsource his selection process to far-right legal groups like the Heritage Foundation and the Federalist Society. With their help, he’s already published a list of twenty potential Supreme Court nominees whose views range from extremely conservative to downright frightening.

One of the potential nominee argued that a Missouri woman who had been fired in retaliation for reporting sexual harassment at work shouldn’t have been able to take legal action. Another opposes the Supreme Court decision that requires police to advise people of their Miranda rights when they are arrested. Another believes that Social Security, Medicare, the minimum wage, food safety laws and the Violence Against Women Act are all unconstitutional. Another called Roe v. Wade the “worst abomination of constitutional law in our history. As a group, they make clear that allowing Donald Trump to nominate our next Supreme Court Justices would all but guarantee a steady erosion of the rights of women, LGBT people, workers, religious minorities and others.

Unlike other consequences of a Trump Administration, there would be no way to limit his impact on the Supreme Court to four years. That’s because once they’re confirmed by the Senate, Supreme Court justices serve for life.

Over the course of the president’s first term, Hillary Clinton or Donald Trump could nominate up to four Supreme Court justices. Since those vacancies could come from across the Court’s ideological spectrum, the results could be dramatic–for good or ill. If Hillary Clinton is elected, the Court will be able to enforce the Constitution’s guarantee of equal protection for all people by protecting the right to choose, marriage equality and religious liberty as a shield to protect individual rights, not a license to discriminate against others. And we’d likely be able to depend on the Court to uphold the Constitution’s core principle of democratic participation when it comes to defending the right to vote and limiting the impact of billionaires and powerful corporations in our elections.

Allowing Trump to appoint our justices would mean a harrowing future on all those issues and more. After all, it would be the Supreme Court’s job to stand up against the blatantly unconstitutional agenda that Trump has laid out on issue after issue, from “opening up libel laws” to demanding criminal prosecution of his political opponents to banning Muslims from entering the country. With Trump’s handpicked jurists in place, whether the Court would stand up to those abuses is anybody’s guess.

I’m grateful that we will finally get the benefit of a debate on the Supreme Court this Wednesday. The conversation between the candidates will only be 90 minutes, but the choice of who becomes president will shape our Court, and all our lives, for a generation.

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