We have read that some Republicans who would not otherwise vote for Donald Trump may do so solely on the ground that it would be unacceptable to put at least one or more Supreme Court nominations in the hands of Hillary Clinton. We believe that, while such a concern may be legitimate, it should not be decisive.
In this blog, we will focus only on the issues that the candidates discussed at the recent debate. There are, of course, several other issues that may come before the Court on which the candidates (and the justices they would nominate) may have differing views. Such issues include, for example, religious freedom, exercise of executive power, voter ID laws, and affirmative action, and we may address them in a later blog. Readers may well view some of the issues differently than we do, but we firmly believe that none of the issues, singly or in combination, would justify the election of a candidate so manifestly unsuitable as Donald Trump.
At the debate, Trump and Clinton each provided fairly predictable and not very helpful comments as to their respective judicial philosophies. Trump expressed a familiar view of conservatives in a not particularly coherent fashion. Describing the justices he would appoint, Trump said:
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 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.
Trump’s comment no doubt stuck a responsive chord with many, but not all. A group of distinguished conservative legal scholars recently released a statement titled “Originalists Against Trump.” The statement said in part:
Our Constitution vests in a single person the executive power of the United States. In light of his character, judgment, and temperament, we would not vest that power in Donald Trump.Many Americans still support Trump in the belief that he will protect the Constitution. We understand that belief, but we do not share it. Trump’s long record of statements and conduct, in his campaign and in his business career, have shown him indifferent or hostile to the Constitution’s basic features—including a government of limited powers, an independent judiciary, religious liberty, freedom of speech, and due process of law.
For her part, Clinton also spoke to her base:
And I feel strongly that the Supreme Court needs to stand on the side of the American people, not on the side of the powerful corporations and the wealthy …. 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.
Outside Clinton’s base, many may have a reaction similar to that of the Wall Street Journal: “The Supreme Court doesn’t—or shouldn’t—“represent” anyone. In the U.S. system that’s the job of the elected branches. The courts are appointed, not elected, so they can be nonpartisan adjudicators of competing legal claims. On the other hand, politics have been entwined with the Supreme Court from its earliest days. While “nonpartisan adjudication of competing legal claims” is the standard in most of the cases that come before the Court, it is another matter—for both liberals and conservatives—in those that implicate sensitive ideological positions.
Turning to specific issues, the candidates focused primarily on abortion, the Second Amendment and, in Clinton’s case, Citizens United. We recall somewhat fondly a time when presidents denied having a “litmus test” for nominees to the Supreme Court, but those days appear to be gone, perhaps forever. Clinton has declared that she has “a bunch of litmus tests” and Trump appears to be not far beyond.
With respect to abortion, Trump declared that he is pro-life and will be appointing pro-life justices and that Roe v. Wade would be overturned “automatically,” leaving it to the states to regulate abortion as they see fit. Clinton, on the other hand, stated that she strongly supported 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.”
Clinton was asked by the moderator, Chris Wallace, about late-term abortions and the ban on so-called “partial-birth abortions” (more accurately, abortions by Intact Dilation and Extraction) which Clinton had voted against (but which was later upheld by the Supreme Court in Gonzales v. Carhart). Clinton responded:
The kinds of cases that fall at the end of pregnancy are often the most heartbreaking, painful decisions for families to make. I have met with women who toward the end of their pregnancy get the worst news one could get, that their health is in jeopardy if they continue to carry to term or that something terrible has 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. So you can regulate if you are doing so with the life and the health of the mother taken into account.
Trump’s rejoinder was to accuse Clinton of “saying, in the ninth month, you can take the baby and rip the baby out of the womb of the mother just prior to the birth of the baby.”
Regular readers of this space will know that, while we have great respect for the pro-life position, we fully support Roe v. Wade and the 1992 decision in Planned Parenthood v. Casey that, nearly twenty years later, significantly modified Roe but reconfirmed the constitutional right to an abortion. To those for whom banning abortion and overturning Roe and Casey is of paramount importance, there may be little that we can say that would be persuasive. We would note however, that contrary to Trump’s assumption, it would be far from “automatic” for justices nominated by him and confirmed by the Senate to overturn Roe and Casey. Those justices, we believe would find a heavy constraint in the doctrine of stare decisis (respect for precedent). That was one of the major grounds for the Court’s decision in Casey, and another twenty-five years will have now elapsed since that decision.
Conversely, we also think it unlikely that justices appointed by Clinton would overturn the decision in Gonzales striking down the ban on abortions by Intact D&E. Moreover, Roe and Casey permitted states to restrict abortions after fetal viability if an exception were made for the life and health of the mother. Finally, late-term abortions are relatively quite rare. According to the Guttmacher institute, only 1.2% of all abortions are performed after the 20th week of pregnancy.
In summary, we believe that even for those with strong views on abortion, Trump’s position on the issue does not provide a compelling reason to support his candidacy.
The candidates also differed sharply on the Second Amendment and gun control. Trump spoke first and asserted that:
We need a Supreme Court that in my opinion is going to uphold the Second Amendment, and all amendments, but the Second Amendment, which is under absolute siege. I believe if my opponent should win this race, which I truly don’t think will happen, we will have a Second Amendment which will be a very, very small replica of what it is right now. But I feel that it’s absolutely important that we uphold, because of the fact that it is under such trauma.
Clinton responded that she supported the Second Amendment but that she believed it allowed reasonable regulation. The moderator quoted Clinton as having said that the Supreme Court was wrong on the Second Amendment, and Clinton explained that she was critical of the Court’s decision in Heller v. District of Columbia “because 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.” It is fair to say that Clinton’s explanation was misleading in that the District of Columbia’s law, and the focus of the Court in Heller, were much broader than she indicated: “We hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.”
Clinton went on to specify two particular forms of gun regulation that she favored: requiring comprehensive background checks and eliminating the loopholes for purchases online or at gun shows. She said that there were other measures that she would favor, but did not identify them.
Clinton has not indicated that she favors reversal of the Supreme Court’s holding that the Second Amendment protects individual rights to gun ownership and possession as Heller held. Nor do we think that justices nominated by Clinton would seek to overturn that decision (and McDonald v. City of Chicago, which applied Heller to the states.) The question remains as to what regulations are consistent with the Second Amendment’s protection of individual rights. As we have previously indicated, we believe that there are a wide range of gun regulations that would be consistent with that Amendment. Such regulations would certainly include the expanded background checks urged by Secretary Clinton. A complete ban of possession of handguns in the home, as the minority in Heller would have allowed, is another matter and we question whether, at this point, justices appointed by Clinton would seek to uphold such a ban.
Moreover, we believe that, given the political strength of the NRA (which has endorsed Trump), there is little likelihood of stringent gun regulations being imposed in very many jurisdictions. Trump claimed that the Second Amendment is under “absolute siege” and “trauma,” but we have seen little evidence of either. Put another way, the Second Amendment may provide the NRA with something of a safety net, but it is far from being its first line of defense. That argument will be utterly unpersuasive to the more fervent members of the NRA, but others, including many who support gun rights generally, may reject the claim that concern for such rights should be a major factor in their electoral decision.
Donald Trump made no mention of the decision in Citizens United v. Federal Election Commission that held unconstitutional a ban on electioneering expenditures by corporations and unions. Clinton clearly indicated that she would appoint justices who would overturn the decision. Her position was unsurprising since overturning Citizens United has been a central tenet of Democrats since it was decided in 2010. It has been our view that, whether one agreed or disagreed with the decision, critics had vastly exaggerated its effect. It is difficult, or perhaps impossible, to identify any election where the outcome has been decisively impacted by expenditures permitted by Citizens United. In July, National Review published an analysis of the primaries in both parties to make exactly that point in “Democracy is Surviving Citizens United Just Fine.”
We think that the analysis of National Review has continued to apply during the general election. But if we and NR are correct that Citizens United has done little or no observable damage to democracy, the reciprocal point also appears correct: it would be hard to argue that Citizens United has brought any significant benefit to the political process. The flow of money into politics has certainly increased but the quality of debate has hardly been improved, and it appears that the donors have received very little return on their investment.
In sum, we would say of Citizens United, as we did of abortion and the Second Amendment, views may differ, but the issue provides no real basis for supporting an otherwise unacceptable candidate. It will be argued that the three issues we have discussed are only a piece of the larger puzzle, and that is true. It is also true that a president Clinton might have the opportunity to shape the make-up of the Supreme Court well into the future. Nevertheless, the consequences of such a happening are at best speculative: justices often act in ways that surprise and sometimes dismay the presidents who appoint them. Hence concerns for the future course of the Court are legitimate, but cannot outweigh the clear and present danger of a Trump presidency.