Next President Will Have the Power to Shift Direction of Supreme Court

Posted Oct. 26, 2016

MP3 Interview with Marge Baker, executive vice president with People for the American Way, conducted by Scott Harris


After saturation media coverage of Donald Trump’s insults and personal attacks –as well as daily focus on Hillary Clinton’s email server and leaked campaign emails, there are a host of critical issues that haven’t received the attention they deserve in the 2016 election campaign. One of those issues is how the outcome of this November’s presidential election will influence future decisions made by the U.S. Supreme Court.

After the death of the Supreme Court's staunchest conservative and longest serving Justice Antonin Scalia on Feb. 13, Republican Senate Majority Leader Mitch McConnell asserted that the nomination of a replacement should wait until after the November 2016 presidential election. However, in March, President Obama, following the U.S. Constitution, nominated Merrick Garland, chief judge of the United States Court of Appeals for the District of Columbia Circuit to fill the vacancy. As promised, the GOP-controlled Senate has blocked a vote on Garland’s nomination, resulting in several 4 to 4 ties between the conservative and liberal wings of the court on key cases. With the likelihood that several of the elderly justices may retire in the near future, the next president could appoint as many as four new members to the court.

Between The Lines’ Scott Harris spoke with Marge Baker, executive vice president with People for the American Way, who discusses what Hillary Clinton and Donald Trump have said about what would guide their selection of future nominees to the court and the critical issues at stake. [Rush transcript.]

MARGE BAKER: Just about every issue that the American public cares about deeply is affected by the Supreme Court. So if you care about being able to have reasonable regulations of reasonable rules around campaign finance, if you care about the environment, if you care about voting rights, if you care about women's rights, if you care about choice, if you care about LGBT equality, if you care about workers' rights to organize, if you care about immigrants' rights – every single one of those is affected by who sits on the Court and the balance of the Supreme Court. What we have now is a court that is essentially is tied, 4-4, and is paralyzed in many cases from making decisions. For example, in the recent case involving the president's executive actions on immigration.

So, there there's a huge, huge amount at stake in this election around who sits on the court – not just in terms of whether we continue to have the vacancy that Merrick Garland was nominated to remain empty, which remains to be seen – but because there are at least three more justices who, during the course of the next presidency, will be more than 80 years old, and the average retirement age for justices is less than that. So, the future of the court for generations is at stake in this election, which is why it's so critical and why we've been working so hard.

BETWEEN THE LINES: Marge, can you describe for our listeners the relative positions of both Hillary Clinton and Donald Trump as relates to the Supreme Court and what their plan would be?

MARGE BAKER: Secretary Clinton has articulated a standard for the kinds of justices she would look for and she said that she wants justices' respect the Constitution that's there for all Americans, not just the powerful and the privileged. She's been clear about issues such as choice and reasonable campaign finance rules, LGBT equality, workers' rights and any number of issues.

Donald Trump, on the other hand, has basically said he's gonna outsource the selection of his nominees to the very, very conservative Federalist Society and the Heritage Foundation. He's given us a list of justices that he would nominate to the bench if he were elected that is truly frightening. One of the justices on his list believes that Social Security, Medicare, minimum wage, child labor laws, disaster relief, food safety laws and the Violence Against Women act are all unconstitutional. Another called the Roe v. Wade decision the worst abomination of constitutional law in our history.

So the choices could not be more stark between these two candidates and what we've been trying to emphasize as we talk to voters is that there is a binary choice here. It's going to be either Secretary Clinton or Donald Trump who are going to be president and they will have the ability to replace potentially three, potentially four, justices on the Supreme Court so it matters – it absolutely matters – in a presidential election who you vote for. And frankly, it also matters in terms of the Senate, because we've seen what the GOP- controlled Senate will do in terms of ignoring its constitutional responsibility to give a nominee fair consideration. So if the Senate remains in Republican hands, and Secretary Clinton is elected president, she's still going to have trouble getting her nominees through. So we absolutely, in our view, have to have a Democrat-controlled Senate in order to make sure that nominees that Secretary Clinton puts forward if she's elected president, will actually be given fair consideration.

BETWEEN THE LINES: There are many disgruntled progressive activists who basically want to opt out of this election, not happy with the choices of either Donald Trump or Hillary Clinton and you often hear them say, it doesn't really matter if I sit out the election or if I vote for a third party candidate, what's the difference? It's all going to be horrible anyway. Kind of just very cynical and who can blame people for having that attitude? But when you get to the real world, and we've been talking about it tonight, there are some fundamental choices that will be made by the next president as regards the Supreme Court, that will affect people in this country for 10, 20, 30 years ahead. What's your best argument that you make for people not to sit out this election even if they are convinced that they are voting the lesser of two evils?

MARGE BAKER: This is a unique moment in history. We have an opportunity to rebalance the court and rebalance it in favor of the American people as opposed to sort of wealthy, powerful special interests. And it's kind of shame on us if we don't take advantage of that moment. And it is a choice that voters will make that affect not just the next four years, but generations. The next 40 years or more. And so, there's a stark choice to be made here. And if there were a single reason for someone who – and I totally understand people who are disenchanted with the choices – but if there is a reason to go out and vote, there is huge choice here and it's going to be either Donald or Hillary Clinton who's going to be selecting up to three or four justices on the Supreme Court who serve for life and therefore will be there for generations, and it is a critical, critical opportunity and shame on us if we don't take advantage of that.

For more information, visit People for the American Way at

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