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Highlights From the Presidential Debates: SCOTUS Edition

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By Casey C. Sullivan, Esq. on October 20, 2016 1:02 PM

Last night's presidential debate, the final of three, was the first to devote a significant portion of the discussion to the future of the Supreme Court. And thankfully, SCOTUS came first, meaning the dialogue remained largely coherent, if not always on point.

This debate probably won't be remembered for its fights over D.C. v. Heller or ruminations on the Senate's role in the Supreme Court nomination process. But it did have some points worth noting. Here are our highlights.

Strict Originalism? A Living Constitution? "Pass."

The first question of the night went straight to the role of the Court in society and the candidate's own views on Constitutional interpretation. "First of all, where do you want to see the Court take the country?" debate moderator and Fox News anchor Chris Wallace asked. "Do the founder's words mean what they say or is it a living document to be applied flexibly according to changing circumstances?"

That is, are you a Scalia or a Brandeis? A Robert Bork or a Justice Breyer?

Hillary Clinton went first, sticking to the same talking points she brought up in the second debate. She would appoint justices who supported a woman's right to choose, who believe in marriage equality, who opposed Citizens United, and who would "represent all of us."

Donald Trump took a different tack. "The Supreme Court: It's what it's all about," he opened, but quickly shifted to his recent spat with Justice Ruth Bader Ginsburg. "Justice Ginsburg made some very, very inappropriate statements towards me," Trump explained. It wasn't all Ginsburg v. Trump, though. Donald soon pivoted back to the Second Amendment, declaring that his justices would protect gun rights.

Trump was also the only candidate to directly address interpretation, saying his nominees "will interpret the Constitution the way the founders wanted it interpreted. And I believe that's very, very important."

We're Down to 20 Trump Nominees

For the second time, Trump said that he had named 20 possible SCOTUS nominees. He has, in fact, named 21. We don't know who go cut, but it's possible that it was Senator Mike Lee, a Ted Cruz supporter who has refused to endorse Trump.

But who knows, maybe Trump finally saw those tweets Texas Supreme Court Justice and potential Trump nom. Don Willet sent out about him.

The Second Amendment and D.C. v. Heller

If you just got your SCOTUS information from presidential debates, you could be forgiven for thinking that the Supreme Court dealt only with abortion and guns, as these issues quickly overshadowed any others.

Wallace dove into the question of D.C. v. Heller, the Court's 2008 decision interpreting the Second Amendment. "The court ruled that there is a constitutional right to bear arms, but that right is reasonably limited," Wallace said. "What's wrong with that?"

Hillary began by emphasizing her support for the Second Amendment, but qualified it, saying that "there can and must be reasonable regulation" so that "people who shouldn't have guns" cannot "threaten you, kill you or members of your family."

As for Heller, she said the D.C. gun control laws the Court struck down were such reasonable regulations, designed to "protect toddlers from guns" by requiring "people to safely store them." The law in question in Heller did require the safe storage of rifles and shotguns, but also banned most handgun and semi-automatic weapon ownership in the District.

When Trump was brought in, he attempted an uncomfortable reference to Justice Scalia, saying that "Justice Scalia was so involved" in the case's outcome. (He wrote the majority opinion.) Later he, claimed that the "best way to help the Second Amendment" was to "appoint justices that will feel very strongly about the Second Amendment, that will not do damage to the Second Amendment."

From Guns to Pregnant Women

The final Supreme Court topic was abortion and reproductive choice. Donald Trump announced that, under his presidency, Roe v. Wade would be overturned and abortion rights would be left to the states to determine. "That'll happen automatically, in my opinion," Trump said, "because I am putting pro-life justices on the Court."

Hillary Clinton again emphasized her support for Roe and the "right to a woman to make the most intimate, most difficult, in many cases, decisions about her health care that one can imagine."

When pressed by Wallace, Clinton vigorously defended her vote against bans on late-term, partial-birth abortions, which Donald Trump later described as "rip[ping] the baby out of the womb of the mother just prior to the birth of the baby." Proposed bans on late-term abortion fail to take into account the life and health of the mother, Clinton argued.

"I have met with the women who toward the end of their pregnancy get the worst news one could get," Clinton said, "that their health is in jeopardy if they continue to carry to term or that something terrible has just happened or just been discovered about the pregnancy. I do not think the United States government should be stepping in and making those most personal of decisions."

And there you have it. The debate soon turned to other topics: immigration, trade, the validity of the election results. The Supreme Court segment didn't hold too many surprises and probably didn't sway too many votes -- but it did, at least, result in a major increase in the number of people googling "Heller."

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