Clinton v. Trump on Supreme Court Justices

Last night’s Presidential debate featured an uncomfortable amount of ugliness and shallow, canned, unrelentingly one-sided answers to important questions, but one bright spot was the candidates’ takes on what kind of Supreme Court Justice they would appoint to fill Justice Scalia’s vacancy.  Although I disagree with much of what both candidates profess to be looking for, an exploration of their differences highlights the polar perspectives politicians have on an appointment process that is too politicized.


Secretary Clinton wants a Justice with real world experience, who will uphold a woman’s right to choose articulated in Roe v. Wade, respect the fragility of voting rights, and overturn Citizens United in order to “get dark, unaccountable money out of our politics.”  Superficially, these are laudable goals.    Diversity of life experiences is important on a Supreme Court.  Although I prefer a Justice with a more academic take on legal interpretation, who will create coherent, easily administrable, fair laws based on rigorous methods of interpretation, having pragmatic Justices like Justice Breyer or appointing appellate judges who understand trial practice will help keep the court from losing touch with the practical implications of the rules they announce and those rules’ fates in the lower courts.  Diversity of judicial styles and perspectives on our highest Court is necessary to allow the law’s development to benefit from a multitude of approaches.

Preserving our Fourteenth Amendment rights vis a vis privacy and marriage equality is similarly important, but not just because the right to choose or LGBT rights are important.  The Court’s legitimacy and our faith in the non arbitrary nature of our rights depends upon having a stable constitutional regime.  Clinton is unwise, and myopically opportunistic, to in the same breath advocate for upholding Roe and Obergefell and overturning Citizens United.  This is especially true given that Citizens United is a case that (I believe) correctly interprets our First Amendment rights to create political speech and was decided only six years ago.  Essentially, Clinton (like many political candidates) has unabashedly articulated that she wants a Justice who shares her political views and is willing to interpret the Constitution accordingly.  This is likely an oversimplification of her actual views (especially given what she later said about the Second Amendment), but it is an irresponsible way to talk about the Court to the American people.

Clinton does rightly chastise Republicans for being derelict in their duty to appoint a new Justice, and in halting the nominations process, but she could have “gone high,” by describing a Justice who believes in rule of law values, who wants to interpret the Constitution in an intellectually honest way, and who adheres to precedent except in rare cases — because when we interpret rights based so much on our political priors, all of our rights are in jeopardy.

Trump, playing the counterpoint to Clinton’s approach, mentioned that he wants a Justice who “will respect the Constitution.”  He would appoint Justices like Justice Scalia, who, while flawed, was highly regarded by many on both sides for his well articulated judicial philosophy and his willingness to create law that diverged from his own political views based on higher principles of constitutional interpretation.  But Justice Scalia was not immune from rendering political decisions.  He would often render angry, blustery decisions that betrayed both his political priors and his immoderate temperament (sounds like someone else).

Trump also mentioned that he wants a Justice who respects the Second Amendment, which is “totally under siege by people like Hillary Clinton.”  Although I cannot say for sure what that means, Clinton served us all well by mentioning that she does respect the Second Amendment.  She has no desire to read the Amendment out of existence, or take away all of the guns, but background checks are not inconsistent with the text, history, or original purpose of the Second Amendment.

Clinton firmly represented herself as somewhat of a caricature of the left — using the Constitution as as “activist” to advance her causes, preserve rights for the little guy, uphold civil rights for women and minority groups, and squash corporate interests.  Trump was the caricature of the right’s take on SCOTUS nominations — speaking in grandiose terms about respect for the Constitution while giving extra respect to the rights he particularly values.  Neither candidate gave an answer I found reassuring or satisfying, but both articulated views with some merit.  These answers were the most thoughtful I think we received all debate.  And this is critical.  The Supreme Court safeguards our constitutional rights against the tyranny of the majority — given the state of political discourse, this is a function we need now more than ever.