Federal Courts and Nominations

What Should Fox’s Chris Wallace Ask Clinton, Trump About SCOTUS?

By Marcia Coyle, Scott Flaherty, and Zoe Tillman

From litmus tests to same-sex marriage to outside-the-box nominees, lawyers in Washington and around the country have U.S. Supreme Court questions in mind for Wednesday night’s third and final presidential debate.

The high court has come up at earlier debates, but this time SCOTUS is a designated topic for a 15-minute segment in Las Vegas. Fox News host Chris Wallace is the moderator for the event at the University of Nevada. The debate begins at 9 p.m. EST.

Law.com reporters in recent days reached out to Supreme Court practitioners and other lawyers about what they think Wallace should ask Democratic contender Hillary Clinton and her Republican rival Donald Trump.

We’ve highlighted some of the responses, edited for length and clarity, below. Follow us on Twitter and take the conversation online with the hashtag #AskSCOTUS and take our poll.

Ted Boutrous
Gibson, Dunn & Crutcher

Mr. Trump, in 2015 the Supreme Court held that the U.S. Constitution establishes a fundamental right to marry that applies with equal force to gay citizens because “marriage is a keystone of our social order.” In 2006, your running mate Mike Pence claimed that allowing gay citizens to marry would lead to “societal collapse” and he supported a federal constitutional amendment to ban same-sex marriage. Who do you agree with—the Supreme Court or your running mate?

Secretary Clinton, in 2005 you voted against the confirmation of John Roberts as chief justice. Chief Justice Roberts was indisputably qualified for the position, proved to be the deciding vote in upholding the constitutionality of the Affordable Care Act, and he is universally viewed by his colleagues, including those appointed by Presidents Clinton and Obama, as a superb leader of the Supreme Court. What are your views today on Chief Justice Roberts and do you regret your vote against him?

Debo Adegbile
Wilmer Cutler Pickering Hale and Dorr

Some recent Supreme Court opinions have questioned the need for continuity of core civil rights protections. How do you regard the court’s role in protecting individuals or groups that may be less favored or face discrimination in our democracy, and what is the relationship between Congress and the Supreme Court in this area?

Hank Asbill
Jones Day

For Donald Trump: Would you consider appointing Chris Christie or Rudy Giuliani to SCOTUS? If so, how would picking one of your surrogates square with the necessity of judicial independence?

Elizabeth Wydra
Constitutional Accountability Center

Chief Justice Roberts has famously said a justice’s role is to call balls and strikes. But obviously it makes a huge difference how you set the strike zone. Do you think the current Supreme Court is on the right track, noting, for example, that studies have shown the Roberts Court to be the most pro-business court in the modern era? Or do you think they should focus less on the rights of corporations and more on protecting the rights of everyday Americans?

Alan Gura

Six of the current eight justices are from the northeast, including five from the New York/New Jersey area. Nearly all the justices have worked as government lawyers, typically in a prosecutorial capacity. Four earned their law degrees at Harvard, three at Yale, and one at Columbia. The late Justice Scalia checked off all three boxes: a New Jersey-born, Queens-raised Harvard lawyer who’d served as an assistant attorney general. Is it good for a court of generalists, and for our law, that the justices have such narrow life and professional experiences? And why should anyone care about the race or gender of the next Harvard-trained, New York government lawyer placed on the court?

Lisa Blatt
Arnold & Porter

There have only been two African-American justices and the last one, Clarence Thomas, was sworn in a quarter of a century ago to replace Thurgood Marshall. Do you think the country should have to wait until Clarence Thomas leaves the court before the president appoints another African-American justice? Do you know of any female African-Americans you would consider?

Lisa Tsai
Reid Collins & Tsai

For Donald Trump: You have stated you want to appoint Supreme Court justices who will uphold the original intent of the Constitution like the late Antonin Scalia, yet you are actively working to erode the First Amendment by pushing for weaker libel laws to help public figures like yourself control what the media can and cannot say about you. How do you reconcile your actions and your words?

Alan Morrison

George Washington University School of Law

Except for Justice Elena Kagan, all of the current members of the court, and everyone back to Justices Lewis Powell and William Rehnquist were appellate judges when they were appointed. Will you look outside the appellate bench in selecting future justices?

Paul Smith
Jenner & Block

Do you think it was appropriate for the Senate to refuse even to consider President Obama’s nominee just because the vacancy occurred in February of an election year?

Carter Phillips
Sidley Austin

Will either candidate have litmus tests? For Mrs. Clinton—what beyond overruling Citizens United and for Mr. Trump—what beyond maintaining Heller and overruling Roe?

Aaron Streett
Baker Botts

When is it appropriate to impeach a Supreme Court justice? Should the impeachment power be used more freely than it currently is?

John Devaney
Perkins Coie

(who provided questions after polling some of his firm’s appellate lawyers)

Do you think it is important that the Supreme Court consider and acknowledge evolving understandings and norms on subjects such as equality, punishment and civil liberties or is the principle of stare decisis more important?

Mr. Trump, you have emphasized throughout your campaign that you will protect the Second Amendment at all costs, but you have not shown nearly as much respect for the First Amendment’s free speech guarantees. In fact, you have threatened to jail reporters and “open up” the libel laws. And just last week, you threatened to sue the New York Times for publishing an interview with two women who have accused you of sexual assault. Do you believe that as a constitutional conservative you have to fight for all of the Constitution, or just those parts that you like?

Brad Karp
Paul, Weiss, Rifkind, Wharton & Garrison

Given shifting age demographics and increasingly bitter partisan splits on the Supreme Court, the selection of a Supreme Court justice will be one of the weightiest responsibilities for our next president. Are there specific attributes you believe our next Supreme Court justice ought to possess?

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