At the third and final debate of the campaign season, Hillary Clinton and Donald Trump discussed a topic that could influence the future of the country well beyond the next four years: Supreme Court justice nominations.
As justices serve for life, the next president could impact on the court for the next generation or longer.
If the future Senate fulfills its duty to “advise and consent” judicial nominations, the next president will at minimum have the opportunity to fill Justice Antonin Scalia’s seat. In addition, the court is aging; Justices Ruth Bader Ginsburg, Anthony Kennedy, and Stephen Breyer are 83, 80 and 78, respectively. If any of them retire or die, the president will be tasked with additional judicial appointments.
As a result, future appointments will dramatically shift the ideology of the Supreme Court, which is balanced at present with four liberal and four conservative justices. The federal courts decide many of the issues that have been major topics of conversation this election cycle, from environmental preservation to voting rights to campaign finance to immigration to affirmative action to women’s reproductive rights.
Trump promised, “the justices that I’m going to appoint will be pro-life. They will have a conservative bend. They will be protecting the Second Amendment.” Indeed, Trump’s list of 21 possible justices, which includes only three women and no people of color, could threaten some of the most progressive landmark cases in recent history such as Roe vs. Wade and Obergefell vs. Hodges. Trump’s potential nominees have a history of supporting the Defense of Marriage Act, opposing the Affordable Care Act’s mandate to provide contraceptive coverage, upholding discriminatory voter ID laws and blocking common-sense gun reform. Any of Trump’s Supreme Court choices could swing the bench further to the right and potentially reverse progress that has been made in recent decades.
In contrast, Clinton stated that “it is important that we not reverse marriage equality, that we not reverse Roe vs. Wade, that we stand up to Citizens United, we stand up for the rights of people in the workplace, that we stand up and basically say, ‘The Supreme Court should represent all of us.’” If Clinton is elected, she could restore a liberal majority to the Court for the first time since Lyndon B. Johnson’s presidency. While some Democrats may not support Clinton herself, they should consider the ramifications of a Trump nominee on women’s rights, immigration, LGBTQ+ rights and the role of money in politics.
Progressive change to the ourt, however, will be impossible if the Senate does not do its duty to “advise and consent” judicial nominations. It is bewildering that many conservatives, who claim to be strict interpreters of the Constitution, fail to fulfill their constitutional obligation and refuse to even grant President Obama’s nominee, Merrick Garland, a hearing.
As of Oct. 23, Clinton has greater than 85 percent chance of securing the presidency according to Nate Silver’s FiveThirtyEight website. Thus, if the Senate remains in Republican hands, stalemate over the Supreme Court will inevitably continue. Sen. John McCain has threatened to categorically block all Clinton nominations, reminiscent of Senate Majority Leader Mitch McConnell’s 2010 announcement that his top priority was to make sure that Obama would be a one-term president.
Therefore, down-ballot elections are critical to flip the Senate so that Clinton can restore the Supreme Court to a full bench. A body that makes decisions by majority cannot operate sufficiently with eight justices and an ideological split.
Potential justices nominated by Clinton or Trump should make interpreting the Constitution as fairly and accurately as possible their utmost priority and should avoid legislating from the bench. That being said, Clinton’s nominations will make the court an agent of progressive change; Trump’s choices will turn back the clock.