Wallace observed that the topic of the Supreme Court had yet to be discussed at a debate in any depth, and he wanted to "drill down." Going to Clinton first, Wallace said:
[W]here do you want to see the court take the country?The idea that the Court is in the lead taking us somewhere is all wrong, but no one is going to point that out.
And secondly, what’s your view on how the constitution should be interpreted? Do the founders' words mean what they say or is it a living document to be applied flexibly, according to changing circumstances?That's a simple way to prompt the candidates to talk about interpretive methodology, and it's an invitation to bungle, because candidates don't really want to get stuck at either end of those seemingly opposite positions. (I say "seemingly," because you can say that the founder's words meant that this is a living document to be applied flexibly, according to changing circumstances.)
Clinton goes first:
You know, I think when we talk about the Supreme Court, it really raises the central issue in this election. Namely, what kind of country are we going to be? What kind of opportunities will we provide for our citizens? What kind of rights will Americans have? And I feel strongly that the Supreme Court needs to stand on the side of the American people. Not on the side of the powerful corporations and the wealthy.I was already loudly arguing with her. The side? The Supreme Court isn't supposed to take sides. She's blatantly saying she wants a Court that doesn't act like a court but gets on one side. Her Court is a Court that ought to have to recuse itself constantly.
For me, that means that we need a Supreme Court that will stand up on behalf of women's rights, on behalf of the rights of the LGBT community, that will stand up and say no to Citizens United, 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.So it's not that Citizens United incorrectly interprets the meaning of the First Amendment or that women and gay people really do have rights that are properly discovered in the text of the Due Process Clause and the Equal Protection clause, but that the Court has to "stand up" and fight for the side she wants favored.
I have major disagreements with my opponent about these issues and others that will be before the Supreme Court. But I feel that at this point in our country's history, it is important that we not reverse marriage equality, that we not reverse Roe v. Wade...This could be a good legal proposition — the stability of precedent — but the sentence continues with something she wants overruled:
... that we stand up against Citizens United...There's that injudicious term "stand up" again. You know, sticking with precedent is called "stare decisis," and that Latin phrase literally contains the word "stand": Let the decision stand. The idea that courts should stand against precedent feels perverse. Courts will occasionally overturn precedent, but they should do so as a result of legal analysis, not political passion. If a right — like freedom of speech — allows us to do "dark, unaccountable" things, that's not a legal argument for taking away the right. And I suspect very few listeners to the debate could get even a C- on a simple essay question about what the Court decided in Citizens United and why. Do they even know that the case involved a movie about Hillary Clinton, criticizing her, that federal law would have censored?
[It is important that] we stand up for the rights of people in the workplace, that we stand up and basically say, the Supreme Court should represent all of us. That's how I see the court.Now, Hillary went to law school. She taught law school. She knows the judicial branch isn't supposed to "represent" us. She's choosing to talk about the Court in language that applies to the political branches of government, and she comes right out and says she wants to use the presidential appointment power to fill the Court with Justices who see law like that:
And the kind of people that I would be looking to nominate to the court would be in the great tradition of standing up to the powerful, standing up on behalf of our rights as Americans. And I look forward to having that opportunity. I would hope 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 the Senate advises and consents or not. But they go forward with the process.But no nominee would testify to the Senate Judiciary Committee expressing commitment to the "great tradition" she just articulated. I've listened to all of the testimony of everyone who currently sits on the Court, and none of them talked like that, even as the Senators from the opposite party from the President attempted to lure them into conceding that they are really, at heart, political hacks.
Wallace asked Trump the same question:
Trump: The Supreme Court, it is what it is all about.No, it isn't! But he doesn't really mean it. He's just getting a riff started with a catchphrase (or a line from "The Hokey Pokey").
Our country is so, so, it is just so imperative that we have the right justices.He answers questions like a pageant contestant. Everything is so important. Yeah? But why? Could you just give the impression of somebody articulate? No, he's going to use this occasion to complain about that time Ruth Bader Ginsburg insulted him. Really. This is the very next thing he thought of to say:
Something happened recently where Justice Ginsburg made some very inappropriate statements toward me and toward a tremendous number of people. Many, many millions of people that I represent and she was forced to apologize. And apologize she did. But these were statements that should never, ever have been made.Okay. Now, could you get somewhat closer to the questions asked — where should the Supreme Court take us and what's the right theory of constitutional interpretation? Apparently, that's just too big of a topic, because Trump bites off a part (it seems) he thinks he can chew, just one right, and, of course, it's the Second Amendment. This is the very next thing he says:
We need a Supreme Court that in my opinion is going to uphold the second amendment and all amendments, but the second amendment which is under absolute siege. I believe, if my opponent should win this race, which I truly don't think will happen, we will have a second amendment which will be a very, very small replica of what it is right now. But I feel that it is absolutely important that we uphold because of the fact that it is under such trauma.Yes, yes, everything is very important. But there's no detail about law, just an incitement to visualize the Second Amendment as a desperately needy victim — under "siege" and under "trauma" — "absolute siege" and "such trauma." It's pageant-speak, full of empathy and the feeling of meaning but devoid of any sign that the speaker knows what she's talking about. Sorry for the "she" there, but I'm talking about beauty pageants, like the kind Trump owns and must love, and I'm comparing him to those young women. And as I said last night out loud to Meade, Trump really is very feminine. If you listen to his voice — when he's not blustering — it gets soft and gentle and oozes empathy in a way that doesn't happen with Hillary. She has her hard, flat, assertive tone and it stays the same, even when she uses words like "toddlers" (see below) to infuse her statements with the message I care.
Trump continues, end-running around the question by reminding us that he's already shown us a list of people he might appoint to the Supreme Court. So look at them. Whatever they think. That's your answer.
I feel that the justices that I am going to appoint, and I've named 20 of them. The justices that I am going to appoint will be pro-life. They will have a conservative bent. They will be protecting the second amendment. They are great scholars in all cases and they're people of tremendous respect. They will interpret the constitution the way the founders wanted it interpreted and I believe that’s very important.Very important!
I don't think we should have justices appointed that decide what they want to hear. It is all about the constitution of, and it is so important.So important!
The constitution the way it was meant to be. And those are the people that I will appoint.All right, I think he finally got around to gesturing at what might feel to you like a belief that the words of the Constitution ought to be interpreted to mean what the framers thought they meant, with no flexibility to accommodate the doctrine to changing circumstances... even though he never said that. His real message is what he generally says about law — go ask my lawyers. Now, that might be respectful toward the Court. He could be saying judges aren't supposed to be on one side or another, but simply to say what the law is. He'll put "great scholars" on the Court and he wants them to interpret the law as they see it, and the question of how to interpret the Constitution is part of the law that they will discern within their highly scholarly, properly judicial, independent function. If he knew how to say that clearly, he would have seen a clear shot to take at Hillary. But he chose to garble it all with verbal flab about how important everything is and with assurances that outcomes would be locked in on the 2 favorite conservative topics — guns and abortion.
Next, Wallace promises 10 minutes of what he calls "open discussion." He directs the first question — a precise, excellent question — at Clinton:
Secretary Clinton, you said last year, and let me quote: “The Supreme Court is wrong on the second amendment.” And now, in fact, in the 2008 Heller case the court ruled that there is a constitutional right to bear arms, but a right that is reasonably limited. Those were the words of the judge Antonin Scalia, who wrote the decision. What's wrong with that?Yes, and that's what Scalia wrote in Heller, so what is wrong with that? Wallace quoted you saying Heller is wrong. But she babbles on, as if she doesn't get the question:
Clinton: Well, first of all, I support the second amendment. I lived in Arkansas for 18 wonderful years. I represented upstate New York. I understand and respect the tradition of gun ownership that goes back to the founding of our country, but I also believe that there can be and must be reasonable regulation.
Because I support the second amendment doesn't mean that I want people who shouldn't have guns to be able to threaten you, kill you or members of your family. And so when I think about what we need to do, we have 33,000 people a year who die from guns. I think we need comprehensive background checks, need to close the online loophole, close the gun show loophole. There’s other matters that I think are sensible, that are the kinds of reforms that would make a difference, that are not in any way conflicting with the second amendment.None of that is at odds with the idea that's already in Heller — reasonable regulations are permitted. Okay, now she shows awareness of the question:
You mentioned the Heller decision and what I was saying that you referenced, Chris, was that I disagreed with the way the court applied the second amendment in that case. Because what the District of Columbia was trying to do was to protect toddlers from guns.Toddlers! The D.C. law made it a crime to have a gun in a condition to use it in self-defense in your home.
And so they wanted people with guns to safely store them. And the court did not accept that reasonable regulation but they've accepted many others. So I see no conflict between saving people's lives and defending the second amendment.She craftily never mentions the details that made the Court see the D.C. law as too severe, so she's essentially conceding that any gun regulation that gets passed should be considered reasonable and thus not a violation of the Second Amendment. And that's how you can "believe" in the Second Amendment even as you let legislatures do whatever they want to it.
Wallace invites Trump to attack what Hillary just said: "Does she persuade you that while you may disagree on regulation, that in fact she in fact she supports the second amendment right to bear arms?" This is a softball if you understand Second Amendment law. And why wouldn't he? It was his go-to issue when the subject of the Supreme Court came up!
Trump: Well the D.C. versus Heller decision was very strongly... and she was extremely angry about it. I watched. I mean, she was very, very angry when upheld.He is speaking broken English. Spluttering, perhaps because he has no idea how to talk about law.
And Justice Scalia was so involved and it was a well crafted decision.Pageant talk again. The "so" is a tell.
But Hillary was extremely upset. Extremely angry.Now, he's called her "angry" 3 times and "upset" once. 2 of the "angry"s got an "extremely," and the other got a "very, very." Is he just running out the clock? Why is he talking about Hillary's emotions? He's talking the way misogynists think women talk.
And people that believe in the second amendment and believe in it very strongly were very upset with what she had to say.2 more "very"s and more emotion, this time from generic people who believe in the Second Amendment. They "were very upset with what she had to say." I think he's saying that because he doesn't really know what Clinton just said or how to attack it substantively.
Wallace turns to Hillary and asks her the silly question "Were you extremely upset?" She could have coolly performed respect for the legal position set out in the Heller dissent, but she took the opportunity to act as though she is emotional:
Clinton: Well, I was upset because unfortunately, dozens of toddlers injure themselves, even kill people with guns because unfortunately, not everyone who has loaded guns in their homes takes appropriate precautions.Again with the toddlers.
But there is no doubt that I respect the second amendment. That I also believe there is an individual right to bear arms. That is not in conflict with sensible, common sense regulation.There is no doubt? Well... it depends on what the meaning of "the Second Amendment" is. If it means all reasonable regulations are permitted and all regulations are reasonable, then she respects it. I doubt whether she initially bought the individual right interpretation, but I think she accepts it now, for political purposes, since it's much easier to call all regulations "reasonable" and therefore permitted than to take the trouble and the political friction of saying you want Heller overturned.
And you know, look. I understand that Donald has been strongly supported by the NRA, the gun lobby is on his side. They're running millions of dollars of ads against me and I regret that because what I would like to see is for people to come together and say, of course we're going to protect and defend the second amendment. But we're going to do it in a way that tries to save some of these 33,000 lives that we lose every year.Come together, right now, over me.
Wallace asked Trump about some of the pro-gun legislation he supports, so now the topic isn't the Second Amendment anymore.
Wallace: You support a national right-to-carry law. Why, sir?Very strong. He's very strong.
Trump: Well, let me just tell you before we go any further, in Chicago, which has the toughest gun laws in the United States, probably you could say by far, they have more gun violence than any other city. So we have the toughest laws and you have tremendous gun violence. I am a very strong supporter of the second amendment.
And I don't know if Hillary was saying it in a sarcastic manner but I'm very proud to have the endorsement of the NRA and it was the earliest endorsement they've ever given to anybody who ran for president. So I'm very honored by all of that. We are going to appoint justices, this is the best way to help the second amendment. We are going to appoint justices that will feel very strongly about the second amendment. That will not do damage to the second amendment.Complete failure to answer the question. Why does Trump support a national right-to-carry law? By the way, if you cared about constitutional law, you would at least try to explain why right-to-carry should be a matter of federal law. It's a matter to be left to the states. And don't think Trump doesn't know how to say that something should be left to the states, because that's exactly where he runs when the next question is about abortion:
Wallace: Mr. Trump, you're pro-life... Do you want the court, including the justices that you will name, to overturn Roe v. Wade, which includes, in fact, states a woman's right to abortion.Automatically?! I was shouting at the TV at this point: He does not understand how the law works! The overturning of Roe v. Wade would never "happen automatically." Even if you put people you believed were pro-life onto the Court, they would have to read the briefs, hear the argument, contemplate stare decisis, and experience the awesome responsibility from within the new position of unassailable lifetime tenure. Justices O'Connor and Kennedy (appointed by Reagan) and Justice Souter (appointment by Bush I) were already there, and they preserved Roe v. Wade when they got confronted with overturning it in Planned Parenthood v. Casey. There is nothing automatic here, and, in fact, I place my bet on Roe v. Wade never being overturned, no matter how many supposedly pro-life justices get on the Court.
Trump: Well, if that would happen, because I am pro-life and I will be appointing pro-life judges, I would think that would go back to the individual states.
Wallace: I'm asking you specifically would you-
Trump: If they overturned it, it would go back to the states.
Wallace: But what I'm asking you, do you want to see the court overturn it? You just said you want to see the court protect the second amendment, do you want to see the court overturn-
Trump: If we put another two or perhaps three justices on, that is really what will happen. That will happen automatically in my opinion.
Clinton interweaves statements of strong support for Roe v. Wade with commitment to women's health care. And she ends with:
We have come too far to have that turn back now. And indeed, he said women should be punished. There should be some form of punishment for women who obtain abortions. And I could just not be more opposed to that kind of thinking.That's not directly about the Court, but it's a good and pithy political statement that hurts Trump with the people in the middle on this divisive issue. That's as good as she gets on her bringing-people-together theme.
Wallace keeps challenging — doing a great job of pressuring both sides. He asks Clinton "how far you think the right to abortion goes":
You have been quoted as saying that the fetus has no constitutional rights. You also voted against a ban on late term partial birth abortions. Why?This set up Trump to speak emotively on the horror of late-term abortion:
Clinton: Because Roe v. Wade very clearly sets out that there can be regulations on abortion so long as the life and the health of the mother are taken into account. And when I voted as a senator, I did not think that that was the case. The kinds of cases that fall at the end of pregnancy are often the most heartbreaking, painful decisions for families to make. I have met with women who have, toward the end of their pregnancy, get the worst news one could get. That their health is in jeopardy if they continue to carry to term. Or that something terrible has happened or just been discovered about the pregnancy. I do not think the United States government should be stepping in and making those most personal of decisions. So you can regulate if you are doing so with the life and the health of the mother taken into account.
Trump: Well I think it is terrible. If you go with what Hillary is saying, in the ninth month you can take baby and rip the baby out of the womb of the mother just prior to the birth of the baby. Now, you can say that that is okay and Hillary can say that that is okay, but it's not okay with me. Because based on what she is saying and based on where she's going and where she's been, you can take baby and rip the baby out of the womb. In the ninth month. On the final day. And that's not acceptable."Rip the baby out of the womb" — he said that twice. Gruesome. Ugly. Clinton calmly fights back:
Clinton: Well that is not what happens in these cases. And using that kind of scare rhetoric is just terribly unfortunate. You should meet with some of the women I've met with. Women I've known over the course of my life. This is one of the worst possible choices that any woman and her family has to make. And I do not believe the government should be making it. You know, I've had the great honor of traveling across the world on behalf of our country. I've been to countries where governments either forced women to have abortions, like they used to do in China, or forced women to bear children like they used to do in Romania. And I can tell you the government has no business in the decisions that women make with their families in accordance with their faith, with medical advice. And I will stand up for that right.And that's where it ends, this subject of what will happen to the Supreme Court. There's no coming together over abortion. The candidates go to the polar opposites, and Chris Wallace declares the segment over and moves on to immigration. I'd like to say that, on immigration, Trump will stress law and Hillary will stress children, but I've gone on too long. The segment has ended and this blog post must end.
Trump: And honestly, nobody has business doing what I just said. Doing that as late as one or two or three or four days prior to birth. Nobody has that.
As I said at the outset, I wasn't happy with either of them, but Trump's problem is more about lack of interest and depth of knowledge and a scattered, emotive mind. Hillary's problem is more about the crafty glossing over of things she probably understands.