Bench Memos

5 Things About the Supreme Court From Last Night’s Debate

1. Clinton Basically Avoided Mentioning the Constitution

The only time Clinton actually invoked a provision of the Constitution was in demanding that the Senate confirm the president’s Supreme Court nominee.  When the moderator, Chris Wallace, asked Clinton how the Constitution should be interpreted, her answer had a lot to do with the Democratic Party’s political coalition and little to do with the Constitution:

You know, I think when we talk about the Supreme Court, it really raises the central issue in this election, namely, what kind of country are we going to be? What kind of opportunities will we provide for our citizens? What kind of rights will Americans have? . . . But I feel that at this point in our country’s history, it is important that we not reverse marriage equality, that we not reverse Roe v. Wade, that we stand up against 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.

That’s how I see the court, and the kind of people that I would be looking to nominate to the court would be in the great tradition of standing up to the powerful, standing up on behalf of our rights as Americans.

Maybe she is just clumsy with her wording, but it also struck me as odd that she framed the Supreme Court as a purely representative body. It’s not, and even the Washington Post has called her out for confusing the court’s function with the job of the political branches.

Trump’s answer to the same question echoed statements he has made in the context of announcing lists of possible Supreme Court nominees.  As he put it:

They will interpret the Constitution the way the founders wanted it interpreted. And I believe that’s very, very important. I don’t think we should have justices appointed that decide what they want to hear. It’s all about the Constitution of — of — and so important, the Constitution the way it was meant to be. And those are the people that I will appoint.

2. Trump Likes the Second Amendment; Clinton Likes Planned Parenthood

Both candidates touted issue groups as symbols of their judicial philosophy. Trump touted his endorsement by the National Rifle Association as proof of his support for the Second Amendment:

I am a very strong supporter of the Second Amendment. And I am — I don’t know if Hillary was saying it in a sarcastic manner, but I’m very proud to have the endorsement of the NRA. And it’s the earliest endorsement they’ve ever given to anybody who ran for president. So I’m very honored by all of that.

We are going to appoint justices — this is the best way to help the Second Amendment. We are going to appoint justices that will feel very strongly about the Second Amendment, that will not do damage to the Second Amendment.

Clinton, by contrast, endorsed Roe v. Wade and its primary beneficiary, Planned Parenthood:

Well, I strongly support Roe v. Wade, which guarantees a constitutional right to a woman to make the most intimate, most difficult, in many cases, decisions about her health care that one can imagine. And in this case, it’s not only about Roe v. Wade. It is about what’s happening right now in America. . . . Donald has said he’s in favor of defunding Planned Parenthood. He even supported shutting the government down to defund Planned Parenthood. I will defend Planned Parenthood. I will defend Roe v. Wade, and I will defend women’s rights to make their own health care decisions.

The abortion right was invented by the Supreme Court in Roe, with exactly zero basis in the Constitution, so perhaps that explains Clinton’s failure to mention it.  In any case…..

3. Clinton Totally Mischaracterized (or Misunderstood) District of Columbia v. Heller

Clinton has made a big show of her opposition to the 2008 case District of Columbia v. Heller, which recognized that the text of the Second Amendment confers an individual right to bear arms. Last night she said that “what the District of Columbia was trying to do was to protect toddlers from guns and so they wanted people with guns to safely store them.”

Not even close. Heller had nothing to do with toddlers, but rather the District of Columbia’s blanket ban on handguns, even in the home, even for self-defense. The Associated Press pointed out the misstatement shortly after the debate last night. It’s obvious that Clinton was trying to insert the word “toddler” into her talking points as often as possible, to the point that she actually emphasized it more than the word “Constitution.”

4. Clinton Hates Restrictions on Partial-Birth Abortions

Last night Hillary Clinton joined the ranks of the most extreme activists in the abortion lobby, mounting a passionate defense of the practice of killing babies with scissors even as they are leaving their mother’s body. (It is worth noting that the Supreme Court’s decisions allowing regulation of partial-birth abortions have been 5-4 and so could easily be overturned by Scalia’s replacement.) Hillary Clinton has already promised that her justices will strike down even the most reasonable health regulations, including those struck down last year in Whole Women’s Health v. Hellerstedt.

5. Trump Reaffirmed His Promises About Judges

Donald Trump has made the Supreme Court the centerpiece of his appeal to voters, going so far as to name 21 well-regarded lawyers, mostly judges, who faithfully interpret the law and the Constitution as written. Last night Trump reaffirmed his promise to stick to that list:

I feel that the justices that I am going to appoint — and I’ve named 20 of them — the justices that I’m going to appoint will be pro-life. They will have a conservative bent. They will be protecting the Second Amendment. They are great scholars in all cases, and they’re people of tremendous respect. They will interpret the Constitution the way the founders wanted it interpreted. . . . And those are the people that I will appoint.​

Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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