The Supreme Court questions Trump and Clinton haven’t answered

By Greg Stohr

Bloomberg

In a presidential campaign unlike any other, the U.S. Supreme Court has been treated almost as an afterthought, but that will change on Wednesday night.

Debate moderator Chris Wallace of Fox News is making the high court one of six topics for the final debate between Donald Trump and Hillary Clinton, and the timing couldn’t be better.

For the first time since 1968, Election Day will arrive with a Supreme Court seat needing to be filled. Three current justices are at least 78 years old, so the next president could fill enough vacancies to shape rulings for a generation.

Here are some of the most pressing questions for the two candidates to answer:

• Secretary Clinton, the Supreme Court ruled in 2008 that the Constitution protects individuals’ right to have a gun. Should the court overturn that holding?

“I respect the Second Amendment,” Clinton said at the second presidential debate. But her campaign has also criticized the landmark 2008 decision. That ruling, District of Columbia v. Heller, said the right to bear arms wasn’t limited to people who are part of a state-run militia. It was written by Justice Antonin Scalia, the conservative icon whose Feb. 13 death created the still-pending vacancy.

The 5-4 ruling has received heavy criticism from the court’s Democratic appointees — Justice Ruth Bader Ginsburg told the New York Times in July it was a “very bad decision.” A Clinton aide said in May it was “wrongly decided” because it might bar state and local laws requiring the safe storage of weapons. But does Clinton think the court was wrong to protect individuals’ right to own a gun?

• Mr. Trump, should the Supreme Court overturn the 2015 ruling that legalized same-sex marriage? If so, should the marriages of tens of thousands of gay couples since then be invalidated?

In January, Trump said he would “strongly consider” appointing justices who would overturn the Obergefell decision. He says his model for Supreme Court appointments will be Scalia, who angrily called the ruling a “threat to American democracy.”

But Trump also said in 2013 that his views on the subject are “evolving.” He didn’t clarify matters on the day of the 2015 ruling, when he that Chief Justice John Roberts “has let us down.” Roberts dissented in Obergefell, saying the decision on gay marriage should be left to the states.

If Trump indeed would overturn Obergefell, his position isn’t likely to help him to expand his electoral base. A Pew Research Center poll this year found that 55 percent of Americans support same-sex marriage and only 37 percent oppose it.

• Secretary Clinton, if you are elected, will you call on the Senate to confirm Merrick Garland in a lame-duck session? Will you re-nominate him if the seat is vacant on Jan. 20?

Clinton has loyally said Senate Republicans should vote on President Barack Obama’s nomination of the moderate, widely respected Garland. But her endorsement has been on the tepid side: She didn’t mention Garland by name when asked about the Supreme Court during the last debate, referring to him only as “a highly qualified person.” Clinton has kept her options open in case she takes office in January with the seat still vacant.

The difference between Garland and another prospective nominee could be significant. Garland, who will turn 64 next month, is a white former federal prosecutor known as a consensus builder and judicial craftsman. By looking elsewhere, Clinton could appoint a justice who could serve 15 years longer, add greater diversity to the court and potentially be more interested in pushing for sweeping liberal rulings.

• Mr. Trump, you have released a list of 21 prospective Supreme Court nominees. If you have a vacancy to fill, will you consider anyone who isn’t on that list?

In September, when Trump released his second set of names, he said the list of 21 was “definitive” and that he would choose “only from it in picking future justices.” The 21 prospective justices are almost uniformly conservative — or have credentials that suggest they are — and the list is one reason some conservatives are sticking with Trump.

But others say they don’t trust Trump to keep his word, given how he has shifted positions on other issues, including the minimum wage and Muslim immigration. Just this week, Republican Sen. John McCain said he didn’t know whether Trump’s nominees would be any better than Clinton’s.

Trump’s vow that the list of 21 was “definitive” came in a statement issued by his campaign; lets see if he says it out loud with millions of people watching.

• Secretary Clinton, you have made clear you think the Citizens United ruling, which helped unleash a torrent of campaign spending, should be overturned. Would you insist that court nominees agree with you and, if so, how would you ensure they do?

With her opposition to the 2010 Citizens United ruling, Clinton has walked right to the edge of the once-unthinkable “litmus test” for Supreme Court nominees. “I will do everything I can to appoint Supreme Court justices who protect the right to vote and do not protect the right of billionaires to buy elections,” she said in 2015.

But presidents can guarantee only so much when it comes to a Supreme Court nominee. To protect judicial independence, they haven’t been willing to ask prospective justices how they would rule on particular issues. Will Clinton change that practice? And if not, what assurances would she need about a potential nominee’s views on Citizens United?

• Mr. Trump, in 2005 the Supreme Court said it’s constitutional for local governments to use eminent domain to seize private property, like someone’s home, and turn it over to developers. You said at the time it was a good ruling. Do you still think so?

This is an area where Trump’s instincts as a businessman diverge from his professed desire to make conservative Supreme Court appointments. Trump praised the Kelo v. New London decision and its broad license to use eminent domain, a tool he has tried to use on more than one occasion to further his business interests.The court’s most conservative members, including Scalia, dissented in Kelo. The ruling created a furor among what later became the tea party wing of the Republican Party. And it won’t be easy for Trump to square the decision with his populist message.