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Last night’s presidential debate: The Supreme Court and the candidates

When the third and final presidential debate began last night in Las Vegas, anticipation among Supreme Court watchers was high: The Commission on Presidential Debates had announced that fifteen of the debate’s ninety minutes would be devoted to the court. And, indeed, the court was the very first topic to which moderator Chris Wallace, of Fox News, turned. But court-watchers would soon be mostly disappointed, as both candidates largely stuck to familiar talking points on two topics: gun rights and abortion. In the long run, the debate will be remembered primarily for Republican presidential candidate Donald Trump’s refusal to pledge to respect the outcome of the election, rather than for a substantive discussion of the court.

Trump began his response to Wallace’s first question, about the direction of the court and constitutional interpretation, by citing Justice Ruth Bader Ginsburg’s criticism of him earlier this year. Trump acknowledged that Ginsburg had apologized, but added that “these were statements that should have never, ever have been made.” Trump then pivoted, describing the Second Amendment as “under absolute siege,” but he later failed to respond directly to Wallace’s question about his opposition to restrictions on assault weapons or high-capacity magazines. Instead he noted that Chicago, despite its strict gun laws, has “more gun violence than any other city,” and he reiterated his intent to “appoint justices that will feel very strongly about the Second Amendment.”

Wallace pressed Democratic presidential candidate Hillary Clinton to explain her opposition to the court’s 2008 decision in District of Columbia v. Heller, which struck down a Washington, D.C. law barring the possession of handguns in the home for self-defense. “What’s wrong with that?” Wallace asked. Clinton emphasized that she supported the Second Amendment, citing the 18 years that she lived in Arkansas and her time representing residents of upstate New York in the Senate. She told the audience that she believes in “reasonable regulation,” but added that she didn’t see “a conflict between saving people’s lives and defending the Second Amendment.”

During her opening remarks, Clinton called for a court that will “stand up on behalf of women’s rights.” She later indicated that she “strongly” supported the court’s decision in Roe v. Wade, and she promised to “defend women’s rights to make their own health care decisions.” For his part, Trump suggested that Roe v. Wade would “automatically” be overruled if he becomes president, because he would put “pro-life justices on the court.”

The discussion then turned to late-term abortions. Trump described the procedure in graphic detail, concluding that they were “not acceptable” and later adding that “nobody has business doing what I just said.” Characterizing Trump’s remarks as “scare rhetoric,” Clinton countered that late-term abortions were “one of the worst possible choices that any woman and her family has to make.” And with that, Wallace moved on to the next topic – immigration.

No matter who is elected, the next president’s ability to influence the court’s direction will hinge on his or her ability to nominate, and have the Senate confirm, new justices. The current vacancy on the court, created by the death of Justice Antonin Scalia last February, came up only once, when Clinton expressed her “hope that the Senate would do its job and confirm the nominee” – Chief Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit, although she did not refer to him by name – “that President Obama has sent to them.” Clinton did not say, and Wallace did not ask, whether she would re-nominate Garland if she were elected and the Senate had not acted on his nomination by the time she took office.

Recommended Citation: Amy Howe, Last night’s presidential debate: The Supreme Court and the candidates, SCOTUSblog (Oct. 20, 2016, 11:02 AM),