Hillary Clinton warned us.
Four years ago, as she was bidding for the Democratic nomination for the presidency, she delivered the strongest speech of her campaign, on the subject of the United States Supreme Court. The address she presented was not a reflexive response to the news of the day. It was not a set of talking points repackaged to fill a passing news cycle. It was a major policy address—comprehensive in scope and character, ambitious in its goals, yet nuanced in its recognition of the challenges facing her party and her country. I was in the room when Clinton delivered her remarks and, as someone who was often critical of the former secretary of state, I wrote that “Clinton’s speech on the importance of filling Supreme Court vacancies, and on the values and ideals that should guide judicial nominations, was a deep and detailed discussion of a fundamental responsibility of presidents.”
Yet I also noted that the speech was largely neglected, observing, “In this absurd campaign season, when media outlets devote hours of time to arguments about which Republican candidate insulted which wife, about violent and irresponsible campaign aides, about whatever soap-opera scenario comes to mind, thoughtful discussions of issues get little attention. And deep and detailed discussions of issues get even less coverage.” Indeed, to the extent that the speech was covered at all, it was in reference to what the Democratic contender had to say about the race for the Republican nomination, especially Clinton’s observation, “What the Republicans have sown with their extremist tactics, they are now reaping with Donald Trump’s candidacy.”
That neglect of the substance of Clinton’s comments on the courts was unsettling at the time, and it remains unsettling, because of what it says about the challenge of making judicial selection a campaign issue. We face that challenge again, in the midst of another campaign and an even more pitched battle over the court’s future. President Trump’s nomination of Judge Amy Coney Barrett to fill the high court vacancy created by the death of Justice Ruth Bader Ginsburg has put this country at a critical juncture where a Republican president and his Senate allies are rushing to reconfigure the Supreme Court before the voters deprive them of the power to do so. Yet, much of the media is already on to the next story: Trump’s tax troubles, Trump’s outrageous tweeting, Trump’s latest outburst.
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We did not pause, as Clinton asked us to do in 2016, to consider the crisis that was emerging with regard to the courts. And I fear that we will not pause sufficiently this fall. It was with this in mind that I revisited Clinton’s speech, which remains as salient today as it was when she delivered it on March 28, 2016.
Clinton spoke that day as a Yale Law School graduate, the author of scholarly articles on children and the law, a former law school instructor, and a former board chair of the Legal Services Corporation, with a long history of engagement with legal issues and the judicial-nomination process. She recognized that “the Court shapes virtually every aspect of life in the United States—from whether you can marry the person you love, to whether you can get healthcare, to whether your classmates can carry guns around this campus.” And that “If we’re serious about fighting for progressive causes, we need to focus on the Court: who sits on it, how we choose them, and how much we let politics—partisan politics—dominate that process.”
What stood out was the way in which Clinton put the 2016 debate over judicial nominations into historical, political, and legal context. She delivered a compelling response to the question of how and when to fill the Supreme Court vacancy that had been created with the February 13, 2016, death—before either party had nominated its presidential candidates and long before the fall campaign—of Justice Antonin Scalia. But she also observed, correctly, that “this battle is bigger than just one empty seat on the Court.”
“By Election Day, two justices will be more than 80 years old—past the Court’s average retirement age. The next president could end up nominating multiple justices,” she explained, after presciently referencing Justices Ginsburg and Anthony Kennedy. “That means whoever America elects this fall will help determine the future of the Court for decades to come.”
Clinton then—in a move 2020 Democratic nominees Joe Biden and Kamala Harris would do well to emulate—worked her way through the Court’s 2016 docket:
• “The Court is reviewing how public-sector unions collect the fees they use to do their work. The economic security of millions of teachers, social workers, and first responders is at stake. This is something the people of Wisconsin know all too well, because your governor has repeatedly attacked and bullied public-sector unions, and working families have paid the price. I think that’s wrong, and it should stop.”
• “The Court is reviewing a Texas law imposing unnecessary, expensive requirements on doctors who perform abortions. If that law is allowed to stand, there will only be 10 or so health centers left where women can get safe, legal abortions in the whole state of Texas, a state with about 5.4 million women of reproductive age. So it will effectively end the legal right to choose for millions of women.”
• “The Court is also reviewing whether Texas should have to exclude non-voters when drawing its electoral map. That would leave out, among others, legal residents, people with felony convictions, and children. The fair representation of everyone in our society—including 75 million children—hangs in the balance.”
• “And on top of all that, the Court is reviewing affirmative action and President Obama’s executive actions on immigration, which called for halting the deportation of DREAMers and undocumented parents of citizens and legal residents. It’s also put a hold on the president’s clean-power plan. Either America can limit how much carbon pollution we produce, or we can’t. And if we can’t, then our ability to work with other nations to meet the threat of climate change under the Paris agreement is greatly diminished.”
“In short,” said Clinton, “in a single term, the Supreme Court could demolish pillars of the progressive movement. And as someone who has worked on every single one of these issues for decades, I see this as a make-or-break moment. If you care about the fairness of elections, the future of unions, racial disparities in universities, the rights of women, or the future of our planet, you should care about who wins the presidency and appoints the next Supreme Court justices.”
Finally, Clinton took on the Court’s biggest failure—addressing an issue that her rival for the Democratic nomination, Vermont Senator Bernie Sanders, had made central to his campaign.
Describing “the dangerous turn the Court has taken in recent years toward protecting the rights of corporations over those of people,” she decried the 2010 Citizens United ruling that knocked down barriers to corporate influence on elections.
“If the Court doesn’t overturn Citizens United, I will fight for a constitutional amendment to limit the influence of money in elections,” she said. “It is dangerous to our country and poisonous to our politics.”
But, to her credit, Clinton did not stop with Citizens United. “This Court has voted on the side of corporations—against the interests of workers, unions, consumers and the general public—in case after case,” said Clinton, who explained that the Court has “made it harder for consumers to band together to sue a corporation, even if they are collectively suffering from corporate behavior. So 2 million Comcast subscribers in Philadelphia were told they each had to hire a lawyer if they wanted to sue for fairer prices. One-and-a-half million women working at Walmart each had to hire a lawyer if they wanted to sue for sex discrimination. That’s a burden that the vast majority of people cannot afford.”
Clinton closed by putting the arguments that Democrats always make about the Supreme Court into political perspective—and into language that should have resonated far beyond legal circles.
“The Court used to—in the 20th century anyway—protect the little guy against the rich and powerful. More and more, it’s doing the opposite—protecting the rich and powerful against the little guy,” said the former secretary of state. “If I’m fortunate enough to be president, I will appoint justices who will make sure the scales of justice are not tipped away from individuals toward corporations and special interests; who will protect the constitutional principles of liberty and equality for all, regardless of race, gender, sexual orientation or political viewpoint; who will protect a woman’s right to choose, rather than billionaires’ right to buy elections; and who will see the Constitution as a blueprint for progress, not a barrier to it.”
What Hillary Clinton said in 2016 was right. It’s even more right now.
Democrats should make a deep and determined discussion of the Supreme Court, the Constitution, and the future of the rule of law central to the 2020 campaign—so central that it cannot be neglected by the media or by the voters.
