Four years ago, a law professor called the Supreme Court the “forgotten issue” of the presidential election.
South Carolina Sen. Lindsey Graham summed things up last night: “Please understand, we have to win this election. The court’s at stake. It is the most important reason for us to turn out, to make sure we don’t lose the judiciary for decades to come.”
Some of the candidates took on Chief Justice John Roberts, others made broad swings at the legitimacy of the Court. They discussed the Kentucky clerk who defied the gay marriage ruling, as well as issues such as birthright citizenship, gun control, and states’ rights.
Chief Justice John Roberts
Chief Justice John Roberts — who was lauded as a near-perfect nominee by Republicans when President George W. Bush put him on the bench — took harsh criticism from some candidates.
Texas Sen. Ted Cruz, a former clerk to Roberts’ mentor, Chief Justice William Rehnquist, said that even though he originally supported Roberts, he had now come to view the nomination as a “mistake” especially for his two votes in favor of President Barack Obama’s health care plan.
Cruz said that Roberts is “a good enough lawyer that he knows in these Obamacare cases, he changed the statute, he changed the law ,in order to force that failed law on millions of Americans for a political outcome.”
Former Florida Gov. Jeb Bush was more guarded. He allowed that Roberts had “made some really good decisions.”
But then Bush said that Roberts — the man whose resume included years in the Justice Department, White House (during the Reagan administration), and on a federal appeals court — did not have a “proven extensive record.”
Bush suggested he’d do things differently.
“The simple fact is that going forward what we need to do is to have someone that has a long standing set of rulings that consistently makes it clear that he is focused exclusively on upholding the Constitution of the United States,” Bush said.
Louisiana Gov. Bobby JIndal did not mince words. He put Roberts in the same box as Justice Anthony Kennedy and former Justice David Souter.
“Justice Roberts twice rewrote the law to save Obamacare, the biggest expansion of government, creating a new entitlement when we can’t afford the government we’ve got today,” Jindal said.
But Roberts was praised by two men who voted for his confirmation. Graham called him “one of the most qualified men to ever come before the United States Senate,” and former Pennsylvania Sen. Rick Santorum said that while Roberts made a “bad decision” on Obamacare, “he’s made a lot of great decisions, too.”
The Court as a whole
Last night, the Court as whole was also a target for some candidates. Cruz, in particular, let loose.
“We have an out of control Court,” he said. “If I’m elected president, every every single Supreme Court justice will faithfully follow the law and will not act like philosopher-kings,” he said.
Former Arkansas Gov. Mike Huckabee once again pointed to the Court’s decision clearing the way for gay marriage nationwide, saying that a 5-4 Court “decided out of thin air that they were just going to redefine marriage.”
And he questioned the legitimacy of the Court, arguing, “If the court can just make a decision and we just all surrender to it, we have what (President Thomas) Jefferson said was judicial tyranny.”
Jindal sent a message to Justice Stephen Breyer, who is currently on tour promoting his third book arguing the court should look outside U.S. borders when considering cases.
“They’re not appointed there to interpret international law, they’re there to apply the United States Constitution!” Jindal said.
“Judicial supremacy is not in the Constitution,” Santorum said. “We need a president and a Congress to stand up to a court when it exceeds its constitutional authority.”
Former New York Gov. George Pataki worried about the rule of law. In response to Santorum, he said, “Wow. You know, we’re going to have a president who defies the Supreme Court because they don’t agree?…Then you don’t have the rule of law.”
There was Trump on birth right citizenship — the policy of automatic citizenship for those born in the United States.
“A woman gets pregnant. She’s nine months pregnant, she walks across the border, she has the baby in the United States and we take care of the baby for 85 years? I don’t think so,” he said.
Former tech CEO Carly Fiorina shot back: “You can’t just wave your hands and say the 14th Amendment is gonna go away.”
But Rand Paul came to Trump’s defense.
“Well, I hate to say it, but Donald Trump has a bit of a point here,” Paul said.
Graham put it this way: “There are people buying tourist visas that go to resorts with maternity wards with the expressed purpose of having a children here in America. There are rich Asians, there are rich people up in the Mideast … That to me is bastardizing citizenship.”
One of the more passionate moments in the debate came when Huckabee defended Kim Davis, the Kentucky clerk who went to jail rather than issue gay marriage licenses.
“We made accommodations to the detainees at Gitmo — I’ve been to Gitmo, and I’ve seen the accommodations that we made to the Muslim detainees who killed Americans,” he said. “You’re telling me that you cannot make an accommodation for an elected Democrat county clerk from Rowan County, Kentucky?”
Bush seemed to lay out a middle ground. He suggested that while Davis couldn’t just say that “gays can’t get married now” there should be some accommodation made for her conscience.