The Supreme Court had its highest-profile moment in a presidential debate in decades Wednesday. But this time, it’s Republicans who are cheering—because on this issue, and perhaps this issue alone, Donald Trump sounded like one of them.
One of the common refrains among Trump’s backers, particularly among the Christian right, has been that while he may be deeply flawed, the stakes are too high for this to be a referendum on character. (Of course, it helps that many think Hillary Clinton’s character is even more deeply flawed.)
For a half-hour last night, before Trump once again made his character the defining issue of the campaign, that narrative is exactly what played out.
Trump sang the Republican chorus perfectly. He framed judicial conservatism as “interpret[ing] the Constitution the way the Founders wanted it interpreted.” He avoided the necessary consequences of that position, which would include rolling back marriage-equality (which is based on an expansive reading of due process); allowing states to ban contraception as well as abortion (same); overturning numerous civil-rights, environmental, and other federal laws (based on the Commerce Clause); and even, according to one of his potential nominees, ending the “right to remain silent” warning.
And, of course, he talked about the Second Amendment.
Trump also reminded viewers that “the Supreme Court: It’s what it’s all about.” That is ridiculous, in terms of how many words Trump and Clinton have each devoted to it (close to zero in the previous two debates, and fewer than a dozen in their standard stump speeches). But it is profoundly true in terms of how millions of Republicans are thinking about this election. Yes, Trump is bad news, but the Supreme Court—that’s what it’s all about.
Ironically, this used to be a liberal chant—remember the Supreme Court!—as recently as this summer, when Democrats were trying to woo Bernie Sanders’s supporters back into the fold. But now, the issue is a plus for Trump.
Clinton, in contrast, took positions that majorities of the country agree with, but rarely vote on. For example, 56 percent of Americans believe that abortion should be legal in most cases, a number that hasn’t moved much in the last 20 years. But only a few of them are as ardently pro-choice as the Christian right is pro-life. And obviously, ardent pro-choicers weren’t wavering in their support of Hillary Clinton.
Likewise on guns. An astonishing 92 percent of Americans support background checks for all gun buyers. But most of that support, too, tends to be too weak to swing the voters who express it, whereas the National Rifle Association’s hard-core base regards the Second Amendment as a litmus test.
In short, if you were a Republican wavering on Trump, the Supreme Court discussion probably encouraged you to vote for him. Whereas if you were wavering on Clinton, it was unlikely to sway you one way or the other.
The jury is out on Trump’s calling out of Justice Ruth Bader Ginsburg for her comments this summer about him. Some pundits on Twitter noted that Trump’s shot—“It is so imperative that we have the right justices. Justice Ginsburg made some very, very inappropriate statements towards me and towards a tremendous number of people… and was forced to apologize and apologize she did”—reflected his narcissism. One tweeted: “Hillary: Here’s what I think about the Supreme Court. Trump: Here’s what the Supreme Court thinks about me.”
I’m not sure that’s true. Justice Ginsburg was widely condemned for her statement in a July interview that Trump was “a faker… He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego.… How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.” While she wasn’t quite forced to apologize, as Trump said, she certainly was encouraged to do so by critics on right and left.
To the extent anyone remembers it, Trump’s invocation of Ginsburg made a powerful, and dangerous, point: The court is just about politics anyway. Here, after all, was a sitting Supreme Court justice offering strong criticism of a presidential candidate. And while she was talking about his personality, not his policies, her comments were, at the very least, contrary to custom.
More strongly, they seemed to reinforce the view, commonplace on the right wing, that the Supreme Court is in the business of making policy, rather than deciding the law. Never mind that, to the extent it’s true at all, it’s true of both conservatives and liberals. The point is, conservatives complain about this all the time, and here was Trump validating those concerns with, it must be said, the perfect example.
Of course, while moderator Chris Wallace may have wanted to highlight the Supreme Court by making it the first topic, one unintended consequence of that decision was that the issue got buried by the subsequent hour of Trump snorting, sniping, muttering, and refusing to accept the legitimacy of United States democracy. It’s not hard to imagine some of the Republicans on the fence leaning Trumpward when he talked about guns and abortion, and then remembering why they were on the fence in the first place when he called Clinton a “nasty woman” and admitted to not paying income tax.
This is not to say that liberals had nothing to cheer in Clinton’s remarks. Marge Baker, executive vice president of the liberal group People for the American Way, said that “in tonight’s debate, the contrast on the Supreme Court could not have been clearer. Hillary Clinton said she’ll appoint justices who understand that the Constitution protects all of us, not just the wealthy and powerful.”
And if there’s one issue that animates liberals as much as Roe and guns animate conservatives, it’s Citizens United, which Clinton called out by name and described as “a decision that has undermined the election system in our country because of the way it permits dark, unaccountable money to come into our electoral system.” Will the invocation of Citizens United get a few more Bernie Sanders supporters to the polls? Perhaps. Will it move one in the middle? No.
And, thank the stars, Clinton even mentioned the appalling, unprecedented, and oath-defying refusal of the Senate to consider the nomination of Judge Merrick Garland to the Supreme Court. “I would hope,” she said, “that the Senate would do its job and confirm the nominee that President Obama has sent to them. That’s the way the Constitution fundamentally should operate. The president nominates, and then the Senate advises and consents, or not, but they go forward with the process.”
Well, at last.
Even here, however, Clinton left some items on the table. As we’ve reported, the public strongly favors hearings for Garland. It’s a losing issue for Senate Republicans, especially those in tight races. It would have been nice had Clinton tied this issue to Trump specifically, noting that Trump himself counseled “delay, delay, delay,” and linking opposition to Garland to support for Trump.
But perhaps this is to ask too much of a candidate who basically had to just stand there, be reasonable, and let the other candidate destroy himself, which Trump graciously did. Clinton acquitted herself well, took principled stands, and seemed presidential.
Trump, meanwhile, won the issue, and seemed on the verge of at least trying to make the race competitive again. But then came the next hour.