Can Supreme Court Be More Than Election Sound Bite?

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By Kimberly Strawbridge Robinson

Sept. 21 — Voters will have the judiciary on their minds when they cast their ballots for executive and congressional offices in November, a judicial politics professor told Bloomberg BNA.

The upcoming election will be a “three-branch election,” Mark C. Miller, of Clark University, Worcester, Mass., said Sept. 13.

The high court vacancy left by the late Justice Antonin Scalia—and the resulting battle over his successor—has catapulted the U.S. Supreme Court into the election, the political science professor said.

But more is at stake than just one Supreme Court seat, Miller said.

Three justices are in or very near their 80s, he said. Therefore, the next president may be in a position to influence the court for decades.

“For the first time in a long time, the presidential and Senate races are about Supreme Court nominees for many people,” Miller said.

Beyond the Base

The importance of the Supreme Court in federal elections has varied over the years, Miller said.

Some presidential candidates have made the Supreme Court a central issue in their campaigns, he said, pointing to Theodore Roosevelt and Barry Goldwater. Others have barely broached to subject, Miller said.

But even if the candidates themselves don't focus on the high court, the Supreme Court has always been deeply important to both major parties' bases, University of Richmond School of Law professor Carl Tobias told Bloomberg BNA in a Sept. 15 e-mail.

Traditionally, reliably conservatives voters have tended to care a bit more about the Supreme Court than liberal ones, Miller said.

But this election is different.

Not only is the Supreme Court taking a bigger place in the minds of liberal voters, but more people outside of the parties' bases say the court is an important issue for them in the upcoming election, Miller said.

Traditionally, about 30 percent of people identify the Supreme Court as an important election day consideration, he said.

This year, that number is more like 50 percent, he said.

Goading With Garland

That's in large part due to Merrick Garland's stalled Supreme Court nomination.

President Barack Obama nominated the U.S. Court of Appeals for the District of Columbia Circuit's Chief Judge to the high court in March. But Senate Republicans have so far refused to hold confirmation hearings for Obama's nominee.

That situation has not only caught the public's attention, Miller said, but it's also educated the public as to the president's and the Senate's joint role in Supreme Court nominations.

As a result, the high court might not be a consideration for just the presidential race, but also Senate races too, Miller said.

For example, Planned Parenthood has already run an ad targeting New Hampshire Sen. Kelly Ayotte (R-N.H.), by highlighting her opposition to holding confirmation hearings for Garland. Bloomberg Philanthropies provides financial support for Planned Parenthood.

Ayotte is running in a tight race against the Granite State's Democratic Governor Maggie Hassan, in a race that's seen as a harbinger of whether Republicans or Democrats will control the Senate.

It wouldn't be surprising if other interest groups began targeting senatorial candidates as the election gets closer, Miller said.

Conferring Comfort

As far as the presidential race, both candidates have used the Supreme Court vacancy to turn out voters.

For Republican hopeful Donald Trump, that's meant releasing a list of potential high court nominees, as a way to assure Republican voters that he will appoint judges who share Scalia's judicial philosophy, Tobias said.

That list “seemed to give some comfort to his GOP supporters,” Tobias said.

However, it's unclear if that comfort was displaced by recent rumors that Trump really wants PayPal founder Peter Thiel on the Supreme Court.

Satisfying Sanders Supporters

For Clinton, focusing on the Supreme Court is a way to turn out Bernie Sanders supporters, Miller said.

Clinton's greatest fear is that supporters of the former Democratic hopeful will stay home on Nov. 8, Miller said.

Even though Clinton isn't popular with Sanders supporters, her campaign may be able to convince them to vote for her because of the kinds of justices she would appoint to the Supreme Court, Miller said.

The problem, though, is that Sanders supporters aren't all that excited about Garland, whom they see as too moderate, he said.

That may be why Clinton suggested that she may look beyond Garland if the Senate hasn't acted on his nomination before she assumes office.

Additional Appointments?

Accordingly, it's likely that the type of justice Trump and Clinton would nominate will come up in the presidential debates, Tobias said.

That's important not just for the current vacancy, Miller said.

Three justices—Justices Anthony Kennedy, Ruth Bader Ginsburg and Stephen Breyer—are 78 or older, he said.

That means the next president could potentially alter the direction of the Supreme Court for the next generation, Miller said.

The first of three presidential debates is set for Sept. 26.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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