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Presidential Election Likely To Impact Short Handed Supreme Court


It's been nearly eight months since Supreme Court Justice Antonin Scalia died unexpectedly. His death left the nation's high court short-handed and evenly divided on some of the most important legal issues of the day. So is the Supreme Court playing as an issue in the presidential election? For an answer we turn to NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG, BYLINE: Scalia died on February 13, and within hours, Senate Republican Leader Mitch McConnell pledged that no Obama nominee would get a hearing or a vote for nearly a year. The people should have a voice in the selection, he said, and therefore this vacancy should not be filled until we have a new president.

A month later Obama nominated Merrick Garland, the most centrist of the often-mentioned potential Democratic nominees. For years Republicans had called Garland the kind of consensus candidate they could support, but McConnell was able to keep his senators in line. And since Republicans control the Senate agenda, that meant the Garland nomination remained in total limbo. An incensed Obama was incredulous in this NPR interview.


PRESIDENT BARACK OBAMA: There's nobody who would suggest that our founders anticipated that a new rule is read into the Supreme Court nomination process in which for an entire year we don't do that because there's an election going on.

TOTENBERG: At first it looked as though the GOP stonewalling on the Garland nomination might be a powerful issue for the Democrats. The public agreed with the president by large margins - as much as 70 and 80 percent in some polls.

And Democrats thought they could force the GOP to act or pay on Election Day. Democratic pollster Peter Hart thought it would be a linchpin issue not just in the presidential election but for Democrats seeking to retake control of the Senate.

PETER HART: It was clearly going to be an issue because the American public expected the Senate to do its job.

TOTENBERG: But somehow the issue as a Democratic weapon seemed to melt away.

HART: I think the problem is that we didn't find the method to be able to keep it front and center.

TOTENBERG: And now Peter Hart says it's too late. Indeed Hillary Clinton only occasionally mentions the Supreme Court in her campaign speeches, but Donald Trump mentions it all the time.


DONALD TRUMP: We are going to appoint justices of the United States Supreme Court. We're going to appoint great Supreme Court justices. You have no choice. You got to go for Trump - Supreme Court justices. Look; Supreme Court Justice Scalia - great - was supposed to live for a long time. He died.

TOTENBERG: Public opinion polls show that most voters don't rank the Supreme Court high as an issue, though a committed minority of Republican and Democratic voters do. In fact slightly more of the Republican base cares passionately.

Gary Bauer, president of the conservative Campaign for Working Families, explains that there's a connection between the Supreme Court issue and social conservative support for Trump. Trump, he notes, has gone further than George W. Bush in his support for conservative causes like opposition to abortion and protection for so-called religious liberty issues.

GARY BAUER: George W. Bush repeated over and over again that he had no litmus test on judges. Donald Trump has said over and over again his judges will be pro-life. What's missing of course is that he's not an evangelical, and he doesn't regularly quote Bible verses the way George W. Bush could. But if I want to hear Bible verses quoted, I'm perfectly happy to go to church on Sunday.

TOTENBERG: Trump has also released two long lists of potential Supreme Court nominees, lists widely praised by social conservatives. There's no guarantee of course that if elected he would nominate from those lists. There are, however, some relatively certain predictions about the court and this presidential election. If Hillary Clinton is elected, the Scalia vacancy will be filled either by Merrick Garland or someone younger and more liberal, and it will be the first time in a half century that a majority of the justices are Democratic appointees. If Donald Trump fills the current vacancy, the court will continue to be dominated by a narrow conservative majority.

The story doesn't end there, though, because there could well be more vacancies. Two of the current justices are over 80. A third is in his late-70s. If any or all of these were to leave during a Clinton presidency, that would likely mean a liberal court legacy possibly for decades. And if Trump is elected, it would mean a dramatic conservative turn for a generation. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.