Washington Week

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Trump vs. Clinton: The Supreme Court

By Jenna Goff and Joan Greve
Washington Week Fellows


Since the death of Justice Antonin Scalia in February, the ninth seat of the Supreme Court has remained empty. President Obama’s nomination remains stalled in a Republican-controlled Senate, and Majority Leader Mitch McConnell remains adamant that the Senate will not consider the nomination of Merrick Garland this year. It seems likely that the next president will be responsible for appointing a new justice.

Where do Donald Trump and Hillary Clinton stand on this and other Supreme Court issues? With just two weeks until Election Day, we look into their positions on the nation’s highest court.

Merrick Garland

Seven months ago, President Obama nominated Garland, a federal appeals court judge, as his pick to succeed Scalia on the Supreme Court. Yet the nomination has been held up by Congress, leaving the Court to consider major cases with only eight justices.

Trump has not commented on the choice of Garland himself, but has expressed he is “pretty much in line with what the Republicans are saying”: that the next president should be the one to fill the vacancy. Since May, Trump has released the names of 21 potential appointees, none of whom are Garland.

When Trump clinched the Republican presidential nomination and continued his campaign as the most unpopular major-party nominee in history, many GOP members pushed to confirm Garland to remove the risk that Hillary Clinton would appoint someone more liberal next year. But top Senate Republicans soon vowed to stand fast and wait for the next president to make the pick, stating that Trump would nominate “the right type of people.”

Clinton released a statement soon after Obama’s nomination of Garland, calling him a nominee “with considerable experience on the bench and in public service, a brilliant legal mind, and a long history of bipartisan support and admiration.” In the following months though, while she chided the Senate for not confirming the president’s choice, she was decidedly vague as to whether or not she would hold firm to his nomination if elected.

In September, Clinton announced she was not bound by the nomination of Garland and would “look broadly and widely for people who represent the diversity of our country” if given the chance to appoint a new justice. This has led many to believe that she could go for a bolder, more liberal, choice. But while Clinton has almost never mentioned Garland by name in the debates and on the campaign trail, he is certainly not out of the question.

Possible nominees

The question of Supreme Court appointments for the next president extends beyond Merrick Garland. At least three associate judges may consider retirement in the next four years given their age: Ruth Bader Ginsburg, 83, Anthony Kennedy, 80, and Stephen Breyer, 78.

This could leave the future commander-in-chief with up to four Supreme Court seats to fill, and Trump has already jumped on considering his options. In May, he released a list of 11 possibilities--eight men and three women, all white and all very conservative--for the highest court.

He added to this list in September, when he released another ten possible names just before the first presidential debate. The new list added some diversity to Trump’s potential nominees, with three judges of color listed among the options, but all of the possible justices are very conservative, and a few are controversially so.  

Steve Colloton, who serves as a judge on the U.S. Court of Appeals and was included on Trump’s first list, argued in favor of a 2003 Texas law that sought to ban gay sex in the state. Another judge on the first list, Raymond Gruender, wrote a decision that upheld a South Dakota law requiring doctors to inform patients that women who have had abortions are more susceptible to suicide.

Clinton has been less transparent about who she would appoint to the Supreme Court if more openings occurred during her presidency. But experts say that Obama’s short list to fill Scalia’s vacancy could provide hints for a more history-making appointment. Sri Srinivasan, who serves on the DC Circuit Court of Appeals and would be the first Indian-American justice, and Ketanji Brown Jackson, a U.S. District judge for the District of Columbia who would be the first African-American woman to serve, were both considered by Obama and could be strong contenders under a Clinton presidency.

Priorities for the Supreme Court

During the final presidential debate, moderator Chris Wallace of Fox News kicked off the discussion by asking each candidate what direction they would like to see the Supreme Court move in. Clinton and Trump’s differing answers provided a window into the litmus tests that their possible nominees might have to pass.

Trump called on the Supreme Court to defend the Constitution, but in particular the Second Amendment, which guarantees the right to bear arms. When Wallace pressed Trump on whether he would want to see Roe v. Wade overturned, the Republican nominee eventually said that it would be a likely result of his Supreme Court nominations, who would be pro-life.

Clinton, who has said that her Supreme Court nominees would have to pass “a bunch of litmus tests,” conversely called for defending Roe v. Wade and women’s right to “make their own healthcare decisions.” She also responded to Trump’s calls for the Supreme Court to protect the Second Amendment by questioning the justices’ decision in the 2008 District of Columbia v. Heller case. Clinton said that she disagreed with the Heller decision, which overturned a DC law that placed restrictions on citizens’ ability to own guns, because it rejected a “reasonable regulation” on the Second Amendment.

The Democratic nominee emphasized Citizens United v. FEC as another priority for the Supreme Court’s future. Clinton argued that the Citizens United case, which lifted restrictions on nonprofit organizations’ political expenditures, “has undermined the election system in our country,” and she endorsed overturning it. Although Trump has previously been critical of the decision, he also hired former Citizens United president as his deputy campaign manager in September.

Correction: An earlier version of this article incorrectly stated that Ketanji Brown Jackson serves on the California Supreme Court.  She is a United States District Judge of the United States District Court for the District of Columbia.  The post has been updated.

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