At debate, Clinton calls for Senate to confirm Merrick Garland

Democratic presidential nominee Hillary Clinton answers a question during the third presidential debate at UNLV in Las Vegas, Wednesday, Oct. 19, 2016. (AP Photo/John Locher)

The final presidential debate on Wednesday opened with an extended discussion of Supreme Court nominations, offering some clarity on how Donald Trump and Hillary Clinton would fill any vacant seats on the court over the next four years if they are elected.

Asked by moderator Chris Wallace in what direction they want the Supreme Court to take the country and how they want the Constitution to be interpreted, their answers illustrated the vast differences between the candidates.

“The Supreme Court, it is what it is all about,” Trump said.

His response focused largely on the Second Amendment and protecting gun rights.

Clinton tied Wallace’s question to one of the central themes she has reinforced throughout the three debates: “what kind of country do we want to be?”

“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,” she said.

She talked about marriage equality, abortion, campaign finance and other issues that would factor into her nominating decisions.

Green noted that the second part of Wallace's question went largely unaddressed. Trump commented on interpreting the constitution as the founders intended but the conversation did not drill down on what that means to him.

The rest of that segment of the debate was devoted almost entirely to the candidates’ views on guns and abortion. Overall, the exchange dug a bit deeper than the basic platitudes candidates often fall back on.

“It was not simply saying stuff about Scalia or discussing an assortment of issues that were more personal than legal, but I didn’t learn too much from it,” said Michael Green, a history professor at UNLV and expert on the Supreme Court.

He said Trump’s responses seemed aimed at appealing to mainstream Republicans rather than just satisfying his base. He wished the conversation had gone beyond the right to bear arms and the right to choose whether to have an abortion, though.

“What the Supreme Court does is a lot more complicated than that, a lot more involved, and we actually could get a pretty good lesson in it considering that right now with eight justices we’re getting 4-4 decisions,” Green said.

Clinton also took a moment in her initial answer to call out Senate Republicans for refusing to even consider Merrick Garland, the judge President Obama nominated to replace Justice Antonin Scalia after his death in February.

“I would hope that the Senate would do its job and confirm the nominee that President Obama has sent to them,” Clinton added. “That's the way the constitution fundamentally should operate.”

Some journalists took that as a sign that Clinton wants Garland to be placed on the court, while others noted that she did not refer to him by name or explicitly say she would renominate him.

“It sent a pretty clear signal, I think, that she would stick with Garland,” Green observed. “She didn’t have to say that.”

Clinton has been relatively circumspect about revealing her plans for Scalia’s seat if, as currently seems likely, Garland is not confirmed before January. She said last month that if she wins the election, she would consider a diverse pool of candidates for any Supreme Court slots she has to fill.

Moving forward with Garland in the early days of a new Clinton administration would not be without political peril. If a Clinton victory also ushers in a Democratic majority in the Senate, progressives may want her to swing for the fences with a more liberal choice.

Fissures in the Democratic coalition exposed by the surprisingly contentious primary fight and exacerbated by revelations in hacked emails recently released by WikiLeaks will be difficult enough to repair without disappointing the left with one of her first decisions.

"Garland was the most conservative possible Democratic nominee, and Republicans have a chance before the election to confirm him. But after winning a fresh mandate from voters, Democrats should pivot and offer the nation a more inspiring nominee who signals the type of bold leadership Americans can expect from Democrats in 2017," Kait Sweeney, press secretary for the Progressive Change Campaign Committee, said Thursday.

Casting Garland aside after he waited nearly a year without a hearing could upset moderate Democrats who were pleased with Obama’s selection and see him as a thoroughly qualified nominee.

With the Obamas actively and extremely effectively campaigning on Clinton’s behalf, it may be seen as disrespectful to ignore Obama’s choice and bring in someone new.

“It would not be a good move considering the importance that Barack Obama and his administration, including Michelle Obama, have attached to this election, the efforts they have made on behalf of Hillary Clinton, for her to then say, ‘Alright, he made this appointment, that’s not good enough,’” Green said.

If the GOP retains its Senate majority, there is no guarantee of smooth sailing through the confirmation process even for a well-respected moderate like Garland.

Sen. John McCain has already signaled Republican resistance to any Clinton nominee that moves the court to the left. However, Senate Judiciary Committee Chairman Chuck Grassley said the next president’s nominees should not be stonewalled by his party.

At this point, Green said it would be unexpected and unwise for Clinton to not renominate Garland.

“I don’t think it would be a good move on her part, especially starting her administration,” he said.

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