But if the Democratic candidates have been largely silent on the issue of the Supreme Court, the moderators should not be. The composition of the high court will be one of the single most important issues in the 2016 election, and, as Ian Millhiser argues, the impact of future appointments will be not just on specific areas of policy and doctrine, but also on rules about partisan gerrymandering, vote suppression, and the very systems by which we govern ourselves. The Democratic Party itself could be in peril.
On a long list of substantive issues, a single change to the composition of the court could upend everything. As Richard Hasen put it in September:
What happens when Kennedy and the other older Justices leave, potentially shifting the balance of power? Under a more conservative Supreme Court, abortion could become all but impossible to obtain, at least in red states. More reasonable gun control laws could fall to Second Amendment challenges, and the Environmental Protection Agency’s power to protect our air and water further diminished. The Court could allow the wealthy to give $1 million contributions or more directly to candidates. It could declare unconstitutional more affirmative action plans and voting rights protections. Congress’s power to combat climate change could be undermined, unions deprived of power, and consumer protections further gutted.
Yet liberals don’t seem to spend too much energy fretting about the court, despite the fact that Justices Anthony Kennedy and Antonin Scalia will turn 80 next year. Ruth Bader Ginsburg is 82, and Stephen Breyer is 77. You can play out the scenarios in all sorts of ways (President Rubio replaces Ginsburg, President Clinton replaces Scalia, President Scooby Doo replaces Kennedy), and it’s possible that the winner of the 2016 election may seat three or four justices. That will likely change the future of this country for decades.
So whether or not we want to hear the potential nominees talk about it, the fact is that we need to hear them talk about it. There is sufficient distance between Clinton and Sanders on gun control, campaign finance, criminal law, the separation of church and state, and other issues that it warrants parsing their views on what a justice should do. And it leads me to ponder what kinds of questions Rachel Maddow should ask of the candidates this week and what kinds of questions we should be pressing the candidates on as the campaign unfolds.