Although Lester Holt turned in a better performance than I thought a broadcast network anchor would be willing to do, I personally sat in astonishment at two Presidential candidates who never broached, to me anyway, the issue that could bring about the single most important consequence of this election…the makeup of the Supreme Court for possibly the next generation.
Ever since the ultra-conservative trifecta of Antonin Scalia, Clarence Thomas, and John Roberts began running roughshod over the most activist Supreme Court in history—from giving the 2000 election to George W. Bush to the completely anti-Democracy ruling in Citizen’s United and the repeal of the Voting Rights Act which declared racism dead in America—we’ve seen money become the equivalent of free speech, and corporations take on the rights of individuals. The next President will probably appoint 3, possibly 4 Supreme Court Justices, including the Presidential appointee that the current GOP controlled Senate refuses to even converse with because of their continued practice of putting Party-over-Country for political expediency. In fact, the entire federal justice system has been under tremendous stress because the GOP controlled Senate has refused to tackle the vast majority of federal judges throughout the country to spite President Obama.
According to the Administrative Office of the U.S. Courts. (On March 19, 2015, the Judicial Conference submitted its request for 73 new judgeships and the conversion of nine temporary ones into permanent judgeships, but Congress has not acted on it.) These pressures, according to the American Bar Association, if left unchecked, inevitably will alter the delivery and quality of justice and erode public confidence in our federal judicial system.
These predictions are a rather morbid, but true, affirmation to demographics: Ruth Bader Ginsburg, the longtime leader of the court’s left wing, is 83. The slightly less liberal Stephen Breyer is 78, and Anthony Kennedy, sitting in the ideological catbird’s seat of the bench, is 80. Each of the four most recent presidents has seated two justices, so having the chance to name four would give the next White House an outsize influence on the shape of American law for the foreseeable future.
Hillary Clinton and Donald Trump had more than 90 minutes to make their respective cases to the American public at the first of three televised presidential debates in the lead-up to Election Day. But neither nominee spent any time describing their vision for the nation’s high court, let alone the federal judiciary ― a huge part of a president’s legacy.
Lester Holt delivered a solid moderator performance but never got the chance to bring up the subject of the Supreme Court because of Trump’s propensity to ramble and deflect questions in order to run out the clock on questions he didn’t want to, or couldn’t answer.
But it was a colossal missed chance, if only because it could’ve reminded millions of voters about an ongoing Supreme Court vacancy that’s breaking all kinds of records ― and helped people understand the intimate ties between a candidate’s policy agenda and the future of the courts.
Clinton has said she wants to build on some of the accomplishments of President Obama, but she has vigorous policy aspirations of her own ― many of which will undoubtedly be targeted through litigation and are almost certain to land eventually before the Supreme Court.
It’s disappointing that one of the most critical issues facing our democracy, the future of the Supreme Court, didn’t get any airtime in tonight’s debate~Nan Aron, president of Alliance for Justice
“After years of accusing liberals of judicial activism, conservatives are wholeheartedly relying on Republican-appointed judges to undo progressive achievements,” Clinton wrote in a January op-ed in The Boston Globe. “They’re using radical legal strategies to accomplish through the courts what they’ve failed to do through legislation, like dismembering the Voting Rights Act or attacking unions.”
The stakes are clear. In a single term, conservative justices could undermine virtually every pillar of the progressive movement. Imagine what they will do in the future if the court becomes even more conservative. Those who care about the rights of women, racial disparities in universities, fairness of elections, the future of unions, or the very future of our planet, should care about who appoints the next justice(s). It’s bad enough that Citizens United has practically turned our election process over to the wealthy and corporate welfare queens of the 21st century, but the progress that has been made across the board could be easily reversed back to the 1800s with a stacked, even more conservative court than we have had since George W. Bush appointed John Roberts.
Trump clearly doesn’t have Clinton’s policy gravitas, much less basic respect for the law…so much for his “law and order” spiel…he likes the part of giving “order(s)”, but the “law” is for everyone but him. And on the campaign trail, he has made clear that not even sitting federal judges or the Constitution itself are out of bounds for his cheap shots. In the face of the kind of injudiciousness he has displayed in flaunting and manipulating the court systems to his own enrichment, he openly brags that even principled conservatives will eventually bow to him based on whom he might nominate to the Supreme Court.
“Even if you can’t stand Donald Trump, even if you think I’m the worst, you’re going to vote for me,” a confident Trump said at a Virginia rally last month. “You know why? Judges.” Yeah, and he doesn’t like to telegraph his punches, huh (see: secret plan to defeat ISIS*)?
His list of potential candidates to the high court is clearly aimed at undecided voters ― those who may recoil at the thought of Trump as commander in chief but who may be willing to stomach him as long as he’s willing to appoint conservative court justices. It’s one of the specific reasons the anti-Trump of all Republicans, Sen. #NeverTrump Ted Cruz (R-Texas) gave, when he succumbed to Trump last week.
All of this and more could’ve been explored at length at Monday’s face-to-face between Clinton and Trump. Instead, the Supreme Court was a ghost.
“It’s disappointing that one of the most critical issues facing our democracy, the future of the Supreme Court, didn’t get any airtime in tonight’s debate,” Nan Aron, president of the liberal Alliance for Justice, said in a statement. Aron’s group has pushed for a hearing for Merrick Garland, Obama’s choice to replace the late Justice Antonin Scalia.
Of course, the Senate may concede after November 8th and consider President Obama’s nominee, Merrick Garland. In 1996, when Garland was nominated by Bill Clinton to sit on the District of Columbia Court of Appeals, he garnered praise from many Republicans.
Senator Orrin Hatch called him “a fine nominee” whose “intelligence and…scholarship cannot be questioned”. Charles Grassley, the judiciary committee chair who has stonewalled Garland’s high-court nomination for a record-breaking 184 days said two decades ago that the same man was “well-qualified”. After a pledge of no hearings before the next president takes office, Grassley is now hedging.
With one existing vacancy and the potential for as many as three more in the next four to eight years, the court is likely to shape America’s constitutional future for far longer than the next president will.
Maybe if Trump quits sniffing, interrupting, condescending, and lying* long enough for the next moderator to ask an extremely important question, we the people might just find out what the candidates have to say about this vital issue.
‘* 25 Lies Trump managed to tell in 90 minutes of debate:
Source of “lies” NY Times