How the Moderator Flubbed the Supreme Court Question

Wednesday night’s debate started off with the following question:

First of all, where do you want to see the court take the country? 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?

Look, it’s clear from Article II of the Constitution that the President shall nominate judges of the Supreme Court. Accordingly, the candidates’ opinions on issues that could potentially come before that Court are certainly relevant.

But, here’s what’s troubling about the question. The President shouldn’t be appointing judges in the hopes of guiding the country in any particular way. Instead, he or she should be looking for nominees who are (1) qualified to do the job; and (2) who will uphold the Constitution of the United States.

The second part of the question – how the Constitution should be interpreted – is absolutely outside the scope of the President’s powers.

The premise of the question assumes that the President should have a say on how the Court rules, even though the Judicial Branch is separate to ensure proper checks and balances. Because politics has intruded on almost all decisions in Washington, we’ve reached the point where the premise of the moderator’s questions is presumed to be correct. This is unfortunate.

Here is how we would have phrased the question:

There are no specific qualifications for Supreme Court Justices, including age, education, profession, native-born citizenship, or even a legal background. Because the next President will almost certainly have at least one appointment — and potentially two or three – what qualifications will you look for in a nominee?

This phrasing takes away the President’s invisible hand in pushing an agenda for the Supreme Court and gives back the impartiality that the Court should have.

(For a full transcript of the debate, see: https://www.washingtonpost.com/news/the-fix/wp/2016/10/19/the-final-trump-clinton-debate-transcript-annotated/)

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