The stakes could hardly be higher. Not just one, or two, but even four Supreme Court seats could be filled by the next president in his or her first term. These future appointments will be transformative, on a scale rarely seen before. For many of us, they will determine what our Constitution means for the rest of our lives.
That’s why it’s urgent that when the presidential candidates meet for their first debate on Sept. 26, they be asked to clearly define their views on appointing Supreme Court justices. With one vacancy on on the Court, long overdue to be filled, and three more justices who will be in their 80’s in the next president’s first term, the Supreme Court is inescapably one of the most important issues in the 2016 election.
Now more than ever, it’s critical that voters hear answers directly from the candidates about how they will shape the highest court in the land. Polls show that more people are paying attention to the Supreme Court as an important issue right now than in recent history.
Don’t rely on us to make a case for the staggering importance of the future face of the Supreme Court as an issue to be decided in this election, but consider the words of Constitutional scholar Erwin Chemerinsky, dean and distinguished professor of law at the University of California, Irvine School of Law, in a recent ABA Journal essay: “Whether one identifies as Democrat or Republican, liberal or conservative, there is no issue more important in the coming election than who will fill the vacancies that are sure to exist on the Supreme Court in the next several years. … Literally every issue concerning our constitutional rights will turn on who replaces these justices.” He went on to list abortion rights, affirmative action, campaign finance, gun control, and separation of church and state.
Americans believe the single most important commitment from future Supreme Court justices is that they adhere to the principle that the Constitution protects all of us, not just the wealthy and powerful. They do not want justices to turn back the clock on civil rights, women’s rights, and workers’ rights. And they are deeply concerned about the risk that the next president would appoint Supreme Court justices who prioritize special interests over concerns of everyday people.
Today’s shorthanded Supreme Court already has left unsettled business in the wake of Justice Antonin Scalia’s passing in February. On some issues, this currently means a greater influence for lower-court judges, and if the election results in a Senate controlled by one party and White House by the other, the high court vacancy could last even longer. In ordinary times it’s critical for voters to hear directly from the candidates how they will move to fill scores of vacancies and pick lower-court judges for lifetime appointments, and it’s even more imperative right now.
Again, don’t rely on us. Here’s what Alfred Regnery writes at National Review Online: “One issue in the upcoming election that could have a huge and long-term impact on the country is rarely mentioned by either Hillary Clinton or Donald Trump. That issue is the federal courts — and not just whom the president appoints to the Supreme Court (which is a very big deal), but also the other hundreds of lower-court judges a president appoints, which is almost as big a deal.”
And The Washington Post mentioned recently how the influence of lower courts has been elevated by the eight-member Supreme Court when it comes to restrictive state voting laws, for example: “With the Supreme Court at an ideological impasse and Senate Republicans refusing to allow hearings for President Obama’s nominee to the court, Merrick Garland, the final state rules for elections throughout the country are likely to be set in a variety of decisions by state courts and lower-level federal judges.”
When moderator Lester Holt of NBC welcomes Donald Trump and Hillary Clinton to their first debate on Sept. 26, we hope he’ll press the candidates for depth, not sound bites, in answering questions about how they would shape perhaps their biggest potential legacy: the courts. Everyone who cares about his or her constitutional rights ought to urge Holt to question the candidates vigorously and clearly about picking justices and judges. To paraphrase law Dean Chemerinsky, when it comes to our constitutional rights, no issue is more supreme.