With less than a month before the elections, the two major-party candidates did something almost unprecedented during last night's presidential town hall: They addressed the future of the Supreme Court.
Between the sniffling and sighing, the personal attacks and tax policy, Hillary Clinton and Donald Trump briefly laid out their vision for the future of the Court, describing, in sharply contrasting terms, who they would look to put on the Supreme Court bench should they become president.
Hillary Focuses on Results -- and Not Merrick Garland
Yesterday's debate was certainly something. In what was supposed to be a town hall style debate, the candidates largely bypassed questions from the audience and moderators in order to deliver stinging attacks and less-stinging talking points.
But towards the end, perhaps realizing that the town hall theme had been almost completely derailed, the debate moderators, Martha Raddatz and Anderson Cooper, refocused on questions from the audience -- and one of the clearest answers the candidates gave was about the Supreme Court.
"Perhaps the most important aspect of this election is the Supreme Court justice," undecided voter Beth Miller said, referring to the current vacancy on the Court. "What would you prioritize as the most important aspect of selecting a Supreme Court justice?"
Hillary Clinton answered first and made clear that she was interested in results. She wants a justice that will vote to overturn Citizens United, she said, focusing on the unpopular 2010 case that relaxed limits on corporate donations to political campaigns. (It's worth remembering, as well, that Citizens United came about because a conservative documentary group wanted to air "Hillary: The Movie," a virulently anti-Clinton movie, on Direct TV.)
Clinton also said she would pick justices who would "stick with" Roe v. Wade and the Court's recent marriage equality ruling. She "would like the Supreme Court to understand that voting rights are still a big problem in many parts of this country," an oblique reference to Shelby County v. Holder, the 2013 case that struck down preclearance review in the Voting Rights Act.
But Clinton wasn't only focused on outcome. She said she would nominate justices who "understand the way the world really works," contrasting "real-life experience" with those who "have not just been in a big law firm and maybe clerked for a judge." Instead, she wants candidates who have "tried some cases" and "actually understand what people are up against."
HRC comes out against clerkships. A turn I didn't expect.-- Orin Kerr (@OrinKerr) October 10, 2016
Some view those comments as bad news for Merrick Garland. Though Garland has certainly "tried some cases," including handling high-profile domestic terrorism cases such as the Oklahoma City bombing and Unabomber during his time in the Department of Justice, his pristine pedigree (he's a double Harvard grad and former clerk for both Judge Friendly and Justice Brennan), plus his relatively advanced age, will probably keep him off Hillary's list.
Indeed, Hillary Clinton may even have forgotten Garland's name. When complaining that the Senate had not acted on Garland's nomination, she referred to him only as "a highly qualified person."
Trump Whittles His List Down by One
Trump dwelled less on who he would nominate. Instead, he quickly pivoted to challenge Clinton to invest more in her own campaign, asking "Why isn't she funding, not for $100 million, but why don't you put $10 million or $20 million or $25 million or $30 million into your own campaign."
But before that tangent took over, Donald made it clear what type of justice he would want: the type that just passed. "I am looking to appoint judges very much in the mold of Justice Scalia," Trump said. That includes candidates who "respect the Constitution" and the Second Amendment, "which is totally under siege by people like Hillary Clinton."
Trump pointed out that he had already publicly listed his potential nominees, "highly respected, highly thought of, and actually very beautifully reviewed by just about everybody." But he got the number wrong. Trump said he had selected 20 potential justices, when in fact he has listed 21: eleven initially in May and 10 more just two weeks ago.
Only one of those 21 was not already a judge, the Utah senator and Ted Cruz ally Mike Lee. On Twitter, the Wall Street Journal's Jess Bravin speculated that Trump may have cut Lee from his list.
One Off: Trump had listed 21 SCOTUS candidates, but tonite said there were 20. Did he drop @SenMikeLee, who said today DJT should quit race?-- Jess Bravin (@JessBravin) October 10, 2016
Lee has refused to endorse Trump and urged him to drop out of the race, though Trump's reduction of his list by one could easily have been a simple mistake, rather than an indication that he's reworked his Supreme Court stance.
- Hillary Clinton, Donald Trump on Selection of Supreme Court Justice (ABC News)
- Scalia Law School Dedicated, With Kagan Singing Justice's Praises (FindLaw's U.S. Supreme Court Blog)
- Have Democrats Given Up on Garland? (FindLaw's U.S. Supreme Court Blog)
- What's Behind the Ginsburg-Trump Feud? (FindLaw's U.S. Supreme Court Blog)