By: Jacob Longman
In the midst of a truly bizarre election cycle, it’s often hard to remember that the upcoming Presidential election has some of the highest stakes in modern political memory. Rarely do two candidates represent such starkly different visions or express such wildly divergent sentiments. Substantively, nothing is more emblematic of the differences between Hilary Rodham Clinton and Donald John Trump than in what they plan to do with the Supreme Court vacancy left by the death of Justice Antonin Scalia.
In an election of firsts, Donald Trump did something no other candidate had ever done; he listed the candidates he was considering for the Supreme Court.[1] Because of this, we have a pretty good idea of how SCOTUS would look in a Trump Presidency. Originally numbering eleven, Trump added ten more names in mid-September, bringing the total number to twenty one.
In the original list, released in May, Trump nominated people who, in his own words, “represent the kind of constitutional principles I value.”[2] Rather than saying he would fill Scalia’s seat with any of the people named, Trump instead mentioned he would use it as a “guide.”[3] The backgrounds of the candidates are similar: six are sitting on the federal bench and the other five are on state Supreme Courts.[4]
The follow up list added ten additional names, one of which is not a judge at all. He also has not endorsed Trump for the Presidency. Mike Lee of Utah is a sitting Senator and Ted Cruz supporter, which lends credence to the idea that Trump is keeping personal politics out his nomination process.[5]
This second list also added diversity. While the first announcement included only Caucasians, the second list added an African-American, as well a Venezuelan-born federal judge and another federal justice of Asian descent.[6] Of the twenty one names, four are women, including Dianne Sykes, a federal appeals court justice who was mentioned as a potential appointment during George W. Bush’s second term.[7]
All of the judges named by Trump tend to lean noticeably conservative. Firmly on the side of religious rights, they also lend credit to Trump’s claim that he intends to take steps toward overturning Roe v. Wade. This is contrasted by D.C. v. Heller, as none of the justices mentioned have shown any inclination to challenge 2nd Amendment rights. In general, the justices mentioned show us that Trump is committed to moving the court to the right, replacing Antonin Scalia with a justice of similar juridical philosophies.
It’s a little harder to predict the exact kind of nominees that Hillary Clinton will make. Clinton has not released a list of names she would mention so, unlike Trump, we can only guess. Still, there are a couple of ways to hedge the process, moving it from a wild guess to something more educated.
The first thing we can speculate about is what would happen if Clinton simply continues the nomination of Merrick Garland. Garland is President Obama’s nominee and he’s been waiting in limbo for a confirmation hearing for months. In the event of a Clinton Presidency, it’s possible that Garland represents the most conservative option that will be put forth for the bench. It is also possible, however, that this is not the case.
A study released in September titled “Possible Presidents and their Possible Justices” written by two professors, one from Berkley and the other from the University of Michigan, posits that it is possible to determine how a justice will vote while on SCOTUS based on a combination of factors including which President nominated the justice and, when applicable, which home state Senators supported the justice’s nomination.[8] The study places Trump and Clinton on the political ideological spectrum—along with the current justices.
The study uses Justice Kennedy, the deciding vote in most of the close decisions, as the ideological center of the court. On this spectrum, Trump sits on the far right, flanked by Clarence Thomas, the most conservative justice, and Samuel Alito, the second most conservative, on his left.[9]
Clinton falls somewhat closer to the ideological center of the court. While Sonia Sotomayer and Ruth Bader Ginsburg occupy the left of the scale, Clinton herself falls closer to Elena Kagan and Stephen Breyer, who sit just to the left of Justice Kennedy, the Court’s ideological center.[10] Garland, notably, does not.[11]
Instead, Garland falls far to the left, even more so than Clinton, landing much closer on the ideological spectrum to R.B.G. than he does Clinton.[12] It’s possible, then, that Garland is more liberal than Clinton, as Clinton lines up almost directly with Kagan and Breyer, the two moderates of the liberal bloc.[13] This makes it possible, assuming the model is accurate, and Clinton nominates someone ideologically in line with herself, that Clinton will nominate justices more conservative than Merrick Garland.
Either way, whomever Clinton nominates will shift the ideological center of the court to the left.[14] Another liberal justice effectively removes Kennedy as the deciding vote, transferring that distinction to Justice Stephen Breyer of the liberal bloc. This means that no matter whom Clinton nominates, the balance of power on the court shifts, likely leading to an increase in substantive due process rights, with the exception of the 2nd Amendment and D.C. v. Heller. Current due process rights, such as the right to have an abortion, will hold as well, with the possible exception of religious rights, which will likely be defined as something more akin to a shield than a sword.
A Trump presidency does the opposite. Only one of Trump’s nominations, Justice Thomas Hardiman of the federal bench, qualifies as a moderate near Justice Kennedy.[15] Hardiman doesn’t always usurp Kennedy’s role, though he does most of the time.[16] This means that Trump’s nominees, most of whom are listed in the study, will shift the court to the right.
The stakes are clear. With at least Scalia’s seat up, if not more, the future of the Supreme Court will be decided on November 8th. Whoever wins will set the ideological bend of the Court for a generation, if not more, effectively eradicating Kennedy as the center, and moving the Court in their direction. This makes the Supreme Court exactly what most polls are calling the election: a toss up.
[1] http://www.theatlantic.com/politics/archive/2016/09/trump-cruz-supreme-court/501461/
[2] http://www.npr.org/sections/thetwo-way/2016/05/18/478563401/trumps-list-of-possible-supreme-court-nominees-includes-a-judge-whos-mocked-trum
[3] http://www.npr.org/2016/05/18/478609623/trumps-supreme-court-list-might-reassure-conservatives-but-leaves-off-big-names
[4] Id
[5] http://www.npr.org/2016/09/23/495216645/donald-trump-unveils-new-more-diverse-supreme-court-short-list
[6] Id
[7] http://www.nytimes.com/2016/05/19/us/politics/donald-trump-supreme-court-nominees.html
[8] http://epstein.wustl.edu/research/PossibleNominees.pdf
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] http://www.nytimes.com/interactive/2016/09/25/us/politics/how-clintons-or-trumps-nominees-could-affect-the-balance-of-the-supreme-court.html?_r=0
[15] http://epstein.wustl.edu/research/PossibleNominees.pdf
[16] Id.