Once again, Judge Merrick Garland’s stalled Senate confirmation plight didn’t hold the spotlight of a presidential debate.
Donald Trump and Hillary Clinton sparred about the Supreme Court for about 15 minutes during Wednesday’s final presidential debate. But the discussion in Las Vegas became more of a proxy for their positions on gun rights and abortion and less about the court or looming Supreme Court confirmation fights in the Senate.
Overall, the candidates did little to expand on their approach to appointing Supreme Court justices. Trump said his appointees would be "pro-life," pro-gun rights and would “interpret the Constitution the way the founders wanted it interpreted" — a message the Republican has stuck to on the campaign trail. It’s also a judicial quality conservatives have championed for decades.
“I don't think we should have justices appointed that decide what they want to hear,” Trump said
Clinton said her court picks would not side with powerful corporations and the wealthy and stick with past decisions on big social issues — a theme the Democrat hit on during the second presidential debate Oct. 9 in St. Louis.
“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,” Clinton said, referencing decisions on abortion and campaign finance by name.
Clinton did mention Garland’s stalled nomination in passing — “I would hope that the Senate would do its job and confirm the nominee that President Obama has sent to them" — but didn’t mention the jurist by name. She did the same thing at the last debate.
Obama nominated Garland 217 days ago to fill the seat of the late Justice Antonin Scalia, a reliable conservative. The ideological balance of the court is at stake with whoever takes Scalia’s seat.
Clinton also didn’t say if she would renominate Garland, currently chief judge of the U.S. Court of Appeals for the D.C. Circuit, if Senate Republicans stick to their plan of not allowing a vote on his nomination during the lame-duck session in November or December. She wasn’t asked.
Moderator Chris Wallace of Fox News asked about the Supreme Court because, he said, the next president almost certainly will have at least one appointment and possibly two or three appointments . Scalia’s seat could still be vacant in January, while Justice Ruth Bader Ginsburg is 83, Justice Anthony M. Kennedy is 80 and Justice Stephen G. Breyer is 78.
But battles in the Senate’s confirmation process will play a large role in what a president can ultimately do. Democrats have argued that the Senate must act on a Supreme Court nomination, but are now resigned that there’s nothing they can do to force a vote.
Neither party is likely to have a filibuster-proof majority in the Senate next year, raising questions about whether senators will change longstanding rules and eliminate the filibuster for Supreme Court nominees.
Clinton mentioned the process in passing: “The president nominates, and then the Senate advises and consents, or not, but they go forward with the process.”
That hasn’t happened this year with Garland. Trump didn’t mention the Senate’s stalled confirmation machinery.
The most policy-driven moment of the Supreme Court discussion centered on the 5-4 decision in District of Columbia v. Heller in 2008, a landmark case that found an individual right to possess a firearm at home for self-defense. The decision also struck down the D.C. ban on possession of a handgun.
Clinton said she supports the Second Amendment but also supports policy reforms that would make a difference and not conflict with gun rights.
“And so when I think about what we need to do, we have 33,000 people a year who die from guns. I think we need comprehensive background checks, need to close the online loophole, close the gun show loophole,” Clinton said.