Finally! Less than three weeks before Election Day, Hillary Clinton and Donald Trump had a lengthy, substantive discussion about the Supreme Court at Wednesday night’s final presidential debate. Unfortunately, Trump said so many wacky things at the debate – “bad hombres,” “nasty woman,” “You’re the puppet” – that the question that kicked off the evening isn’t getting a ton of attention. But I’d like to shine a spotlight on it, because this is a monumentally consequential issue.
Right out of the gate, moderator Chris Wallace asked the candidates who they’d appoint to the Court. Clinton explained that she wants to see a justice who cares about equality and would take money out of politics, while Trump reiterated that he’s put forth names of people who are effectively Antonin Scalia clones. Then Clinton expressed her support for Roe v. Wade and sensible gun control that respects the principle of the Second Amendment, and Trump said he’d appoint justices to the Court who would certainly overturn Roe and that he agrees with a robust interpretation of the Second Amendment.
We didn’t really learn anything new about the candidates’ positions here, but never mind that. What matters is that millions of Americans got a reminder that, depending on who wins this election, either Hillary Clinton or Donald Trump will get to shape the Supreme Court for a generation or longer.
Though it’s basically dropped out of the news at this point, it remains the case that we currently have only eight justices on the Supreme Court. That has been true since mid-February, when Justice Scalia died. In March, President Obama nominated Merrick Garland, a widely respected moderate judge, to fill the empty seat. His nomination has languished ever since – a Senate record.
What this means is that, barring the Senate surprising everyone between now and the start of the next president’s term, the Supreme Court will remain short-handed for at least another few months. Plus, there’s a chance there will be even more openings on the Court soon. Ruth Bader Ginsburg, Anthony Kennedy and Stephen Breyer are all at least 78 years old; time could catch up with them at any point.
In other words, the next president will appoint at least one justice to the Supreme Court, and possibly more. Those appointments will determine the future of the Court for decades. Will the Court continue along the path of extreme conservatism that it has walked over the past two decades? Or will it change course and become more moderate, or even liberal?
This election will decide exactly that.
And it’s not just the presidential race that matters. As Clinton explained during the debate, those appointments can only happen if the Senate acts to confirm a justice. Earlier this week, Sen. John McCain said Republicans would not vote for any justice a President Clinton put forward. If true, the only way the Supreme Court will have a complete set of justices in the future is if the presidency and the Senate are controlled by the same party.
So, if you care about the Supreme Court, you have to care about the down-ballot Senate races. Democrats currently have 46 Senate seats. They need to have a majority of 51 (or an even split of 50-50 if Clinton wins, since her vice president would be the tie-breaker) in order to control the Senate and confirm her pick for the Court.
These close Senate races – in New Hampshire, Pennsylvania, North Carolina, Indiana, Nevada and elsewhere – are thus hugely important. If you want Roe upheld, reasonable gun control laws in place, gay rights protected and Citizens United overturned, then you need to do everything you can to support the Democrats in those races and not just focus on the presidency. If you want abortion outlawed, unfettered gun rights, gay rights rolled back and Citizens United protected, then you should support the Republicans in those states.
It’s that simple. Both the president and the Senate will control this important issue and determine whether the Supreme Court will ever have a fully functioning set of justices again.
Wednesday’s debate, while giving us little new about where the candidates stand, finally drove home this point.
Trump’s ignorance when it comes to women’s health, as demonstrated at the final debate, would be literally deadly. Watch here.