As I discussed in my earlier posts on the Supreme Court and the 2016 presidential election, although the future of the Court played a major role in the election for many voters and for advocacy groups, the candidates themselves seemed uninterested in the issue. Trump released a list from which he promised to select a nominee for Justice Scalia’s vacant seat and he made brief reference to the Court in his stump speeches, but he spent most of his time on the campaign trail on other topics. Clinton rarely mentioned the Court. When she did, it was usually in response to a direct question. The candidates’ limited engagement with the Court only decreased as they got closer to Election Day.
In this post I offer four factors that help explain why neither Trump nor Clinton demonstrated much interest in making the future of the Court a central campaign issue.
The Trump Factor
It’s hard to conclude that Trump gave much thought to the Supreme Court or even that he cared all that much about the Court itself. He had his basic talking points—praise Justice Scalia, promise to appoint conservative Justices—but when he tried to go beyond these points, the limits of his interest and knowledge quickly became apparent.
In a Republican primary debate, Trump said that judges “sign bills.” When directly asked about the Court in the second debate, Trump gave a few talking points and then changed the subject. In the third debate he steered the discussion away from the Court, the Justices, and the Constitution, and toward the substantive issues of abortion and guns. Rather than responding to the moderator’s question about the Court and the direction of the country or about approaches to constitutional interpretation, Trump talked about ripping babies out of wombs.
At his campaign rallies the Court was a bullet point for Trump. On rare occasions did he choose to expand it to a paragraph or a page.
The Garland Problem I
Why did Clinton not spend more time attacking the Republican blockade of President Obama’s nominee, Merrick Garland, to replace Justice Scalia on the Court? One factor may be the difficulty to pressing an issue on the campaign trail that is basically one of legal process. “Do your job” sounded good and made a nice Twitter hashtag, but it never became an effective Democratic rallying cry for the 2016 elections. Democrats tried to make this a campaign issue in Senate races involving members of the Judiciary Committee, but gained little traction. The American people believed overwhelmingly that the Republicans were wrong to do what they did, but the issue never coalesced in a way that could swing votes against Republicans. Clinton on occasion raised the Garland blockade, albeit with decreasing frequency as election day neared; she seemed to consciously avoid making it a significant issue.
The Garland Problem II
Another reason the Garland blockade was not a great campaign issue for Clinton was the awkwardness of pressing the issue of putting on the Court someone she had not chosen and who she did not believe to be the best person for the job. In her occasional comments on the kind of Justice she would appoint if elected, she spoke about people with broad experience and a kind of a populist sensibility. This was hardly an endorsement of Garland, a white male federal appeals court judge with experience working in law firms and prestigious government posts.
Garland, in short, was not a nomination made for the dynamics of a presidential campaign. It was hard for Democrats to rally around him. Obama’s strategy in nominating Garland, which was to find a moderate liberal who was widely respected in legal circles on the assumption that this profile would generate support from both sides of the aisle, was exactly the wrong strategy when viewed from the campaign trail. In the end, Obama’s strategy to win over Senate Republicans failed, and Clinton was stuck with a less-than-ideal symbol with which to press the Court as a campaign issue.
The 2016 Polls
Another contributing factor was the fact that most people—including those devising Clinton’s campaign strategy—believed, based on poll numbers, that Clinton was going to win the election. Emphasizing the Garland blockade as a campaign issue, they assumed, would not matter in the end. By avoiding the issue, she tied herself less to Garland himself, which would assumedly make it easier for her to nominate someone else, if she so chose, once elected. Some commentators surmised that by the fall of 2016, liberals were quietly accepting of the Republican refusal to hold hearings on Garland, since this opened the possibility of a more liberal nominee once Clinton was elected.
The 2016 election saw the Supreme Court as more of an issue than in perhaps any previous presidential election and it saw the candidates speaking about the Court more frequently than most previous candidates (relatively low bars, admittedly). And voters claimed it was the most important issue at rates never seen before in American history. Yet, even recognizing these unprecedented elements of the election, it is still striking to note how relatively little the major party candidates talked about the Court. Clinton treated it as a minor issue, mentioning it only cursorily and discussing it at some length only when she felt compelled to do so. Trump repeatedly described the future of the Supreme Court as a major issue—sometimes he called it the most important issue of the election—but he rarely felt compelled to treat it more than one in a long list of stump speech promises.
In my next post in this series on the Court and the 2016 election, I’ll turn from the particularities of the 2016 election and explore some historical factors that help explain why presidential candidates generally resist embracing the Court as a campaign issue.
This post was written by ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt. It is the third of a multi-part ISCOTUS series on the Supreme Court and the 2016 presidential election. The first two posts can be found here and here.