Home » Advice & Consent 015: Debate SCOTUS questions + Election Speculation: Celebrity Edition

Advice & Consent 015: Debate SCOTUS questions + Election Speculation: Celebrity Edition

In this episode we chat about our the SCOTUS questions in the second and upcoming third presidential debates and then America’s favorite gameshow returns—Election Speculation: Celebrity Edition!

Direct download: Advice & Consent 015: Debate SCOTUS questions + Election Speculation: Celebrity Edition (mp3)

Merrick Garland at 212 days

  • Today as we record the show (10/13) marks day 212 since Judge Garland’s nomination to fill Justice Scalia’s seat. We are just a few days short of 7 months since his nomination on March 16, 2016.
  • We’ll keep the lights on as a Supreme Court nomination podcast through however this gets resolved. In the interim we’ll be doing shows every few weeks.
  • Senator Tammy Baldwin (D-WI) speaking on the SCOTUS vacancy & the ones in her own state of Wisconsin: http://www.wiseye.org/Video-Archive/Event-Detail/evhdid/11034

The Second Debate has… a SCOTUS question!

What do you think of the SCOTUS question and the answers by the candidates?

Lena: Was excited by the question (thank you, Beth Miller!), but had to review transcript to read the actual answers:

We have another audience question. Beth Miller has a question for both candidates.

QUESTION: Good evening. Perhaps the most important aspect of this election is the Supreme Court justice. What would you prioritize as the most important aspect of selecting a Supreme Court justice?

RADDATZ: We begin with your two minutes, Secretary Clinton.

CLINTON: Thank you. Well, you’re right. This is one of the most important issues in this election. I want to appoint Supreme Court justices who understand the way the world really works, who have real-life experience, who have not just been in a big law firm and maybe clerked for a judge and then gotten on the bench, but, you know, maybe they tried some more cases, they actually understand what people are up against.

Because I think the current court has gone in the wrong direction. And so I would want to see the Supreme Court reverse Citizens United and get dark, unaccountable money out of our politics. Donald doesn’t agree with that.

I would like the Supreme Court to understand that voting rights are still a big problem in many parts of our country, that we don’t always do everything we can to make it possible for people of color and older people and young people to be able to exercise their franchise. I want a Supreme Court that will stick with Roe v. Wade and a woman’s right to choose, and I want a Supreme Court that will stick with marriage equality.

Now, Donald has put forth the names of some people that he would consider. And among the ones that he has suggested are people who would reverse Roe v. Wade and reverse marriage equality. I think that would be a terrible mistake and would take us backwards.

I want a Supreme Court that doesn’t always side with corporate interests. I want a Supreme Court that understands because you’re wealthy and you can give more money to something doesn’t mean you have any more rights or should have any more rights than anybody else.

So I have very clear views about what I want to see to kind of change the balance on the Supreme Court. And I regret deeply that the Senate has not done its job and they have not permitted a vote on the person that President Obama, a highly qualified person, they’ve not given him a vote to be able to be have the full complement of nine Supreme Court justices. I think that was a dereliction of duty.

I hope that they will see their way to doing it, but if I am so fortunate enough as to be president, I will immediately move to make sure that we fill that, we have nine justices that get to work on behalf of our people.


RADDATZ: Thank you, Secretary Clinton. Thank you. You’re out of time. Mr. Trump?

TRUMP: Justice Scalia, great judge, died recently. And we have a vacancy. I am looking to appoint judges very much in the mold of Justice Scalia. I’m looking for judges — and I’ve actually picked 20 of them so that people would see, highly respected, highly thought of, and actually very beautifully reviewed by just about everybody.

But people that will respect the Constitution of the United States. And I think that this is so important. Also, the Second Amendment, which is totally under siege by people like Hillary Clinton. They’ll respect the Second Amendment and what it stands for, what it represents. So important to me.

Now, Hillary mentioned something about contributions just so you understand. So I will have in my race more than $100 million put in — of my money, meaning I’m not taking all of this big money from all of these different corporations like she’s doing. What I ask is this.

So I’m putting in more than — by the time it’s finished, I’ll have more than $100 million invested. Pretty much self-funding money. We’re raising money for the Republican Party, and we’re doing tremendously on the small donations, $61 average or so.

I ask Hillary, why doesn’t — she made $250 million by being in office. She used the power of her office to make a lot of money. Why isn’t she funding, not for $100 million, but why don’t you put $10 million or $20 million or $25 million or $30 million into your own campaign?

It’s $30 million less for special interests that will tell you exactly what to do and it would really, I think, be a nice sign to the American public. Why aren’t you putting some money in? You have a lot of it. You’ve made a lot of it because of the fact that you’ve been in office. Made a lot of it while you were secretary of state, actually. So why aren’t you putting money into your own campaign? I’m just curious.



RADDATZ: Thank you very much. We’re going to get on to one more question.

CLINTON: The question was about the Supreme Court. And I just want to quickly say, I respect the Second Amendment. But I believe there should be comprehensive background checks, and we should close the gun show loophole, and close the online loophole. COOPER: Thank you.

RADDATZ: We have — we have one more question, Mrs. Clinton.

CLINTON: We have to save as many lives as we possibly can.


The big surprise is that Clinton threw Merrick Garland under the bus (although she offered to call 9-1-1 for him a few seconds later).  It’s interesting that Citizens United has reached Roe v. Wade and Brown v. Board level of public understanding.  A case citation is enough for the public to know what a politician is talking about.  Despite Tim’s best efforts, Griswold isn’t there.


Adam loves reminding everyone of my favorite case! An uncommonly silly law!! I only hope The Donald considers it as “beautifully reviewed” as his SCOTUS short list. Tremendous.

What will happen at the Third Debate?


Looks like the third and final debate will have 15 minutes dedicated to the Supreme Court as well, at least as of right now

Ask more questions…. Diversity, breaking through obstruction, lower courts…

1 candidate will answer. 1 will not.



(1) Chris Wallace follows up with Trump who again tries to spend 10 seconds talking about the Court and then switches topics.  Wallace doesn’t like it when people completely ignore his question.  But Trump refuses to answer the question no matter how often Wallace presses.

(2) Clinton gives the same exact response she gave during this debate, perhaps leaving herself a bit more wriggle room to reappoint Merrick Garland.  The real question is whether Chris Wallace picks up on the fact that Clinton described Judge Garland’s resume as the wrong resume for a justice she would select.  That would make for a very interesting debate question, and Wallace is smart enough to do that.


If Wallace asks a generic SCOTUS question – which I expect to be more softbally… “The Supreme Court is important… discuss” then Trump gets a free pass like before. If he surprises me and asks a more substantive question (“name a case you want reversed and would you appoint justices to effectuate that?”) then I agree with Adam.

America’s favorite game show RETURNS – Election Speculation: CELEBRITY EDITION

Scenario from guest celeb, Robert Reich!

HRC wins, Senate goes to the Dems, House is GOP but only by 3 votes.

President Hillary Clinton nominates Barack Obama to the Supreme Court, who immediately pledges to reverse “Citizens United.” Senate Democrats make a rule change that allows Obama to be confirmed with 51 Senate votes. He is. (source: Facebook)

Justices of Election Speculation:Celebrity Edition…. On a scale of 1-10 how do you score Mr. Reich?


Agree on nuclear option because it will be needed for his confirmation (PS this will also double down on the SCOTUS nom enmity that started with Bork nom) but I think Mr. Reich is wrong on the former President “pledging” to reverse Citizens United. He may very well vote for that if before him on the Court, but there’s no way he’d say that in a hearing or anywhere else. He’d stick with tradition and play the “won’t comment on cases that may come before me” card. Reich gets a 5/10.



  1. Let’s not wait until January/February/March, PLEASE!
  2. Agree with Tim. The idea of litmus tests gives me a little pause and there’s no pledging to do X or Y, and we shouldn’t have nominees willing to say that given the facts and law drive decisions.
  3. May need to reform the filibuster for SCOTUS noms, as Tim suggests, so he could get confirmed by a simple majority instead of super majority as it stands for the Highest Court nominees right now.
  4. That said, I’m optimistic that as much light and distance will need to happen between the GOP and Trump that PERHAPS they’ll try to appear like they’ll get work done. So perhaps, even in that scenario, a few Rs would cross over to respect the President’s power to appoint justices to the Supreme Court so maybe don’t even need the super majority.
  5. I don’t think President Obama wants the job.


The entire reason that the GOP never went nuclear during the Bush years was to filibuster a Democratic president’s nominee to replace Scalia or Thomas.  The nuclear option will be triggered no matter what the other politics, which might involve “we’re going to roll the base on immigration, we need to fight on SCOTUS).

Clinton doesn’t really like Obama enough to nominate him, nor does Obama want the job.  William Howard Taft’s place in history is secure.