Issue That Matter: Key legal challenges facing the next president

Issues That Matter: Supreme Court

In this installment of “Issues That Matter,” we look at how the presidential candidates say they would handle key legal issues, including filling vacancies on the nation’s highest court. Legal legends David Boies and Ted Olson also join “CBS This Morning” to discuss that and other challenges the next president could bring before the Supreme Court. 

One of the first, most consequential decisions the next president will make is deciding who will fill the seat of the late conservative-leaning Justice Antonin Scalia on the nation’s highest court. Whether it’s Hillary Clinton or Donald Trump in the White House, the decision will have a lasting impact on the Supreme Court’s political balance – currently divided between four Democratic-appointed liberal justices and four Republican-appointed conservatives.  

The seat has remained empty since Scalia’s death in February, despite President Obama’s nomination more than six months ago of Merrick Garland, chief judge on the U.S. Court of Appeals for the DC Circuit, the second-highest court in the land. Senate Republican leaders have refused to hold confirmation hearings.

Republicans say they will not confirm Garland

“I think that’s very disappointing,” David Boies told “CBS This Morning” Wednesday, alongside Ted Olson, who also agreed. Two of the biggest names in American legal history, Boies and Olson teamed up to fight California’s ban on same-sex marriage in 2009, which ultimately led to the Supreme Court decision to declare it a constitutional right

“I mean you can disagree or agree that [he] ought to be confirmed — I frankly share with Ted he ought to be confirmed — but I don’t think you can disagree reasonably that he shouldn’t be given a vote. That’s the Senate’s responsibility,” Olson said.

Senate Republicans have vowed to block action on filling the seat until the next president is sworn in in January. But Boies and Olson didn’t rule out Garland’s chance at a confirmation hearing during the lame-duck session of Congress.

“Most of the senators aren’t saying but there’s a very good possibility. If Hillary Clinton is elected president, the Republicans might decide, ‘Well, she might appoint someone after the first year who’s a lot younger and who’s a lot more liberal,’” said Olson, who served in the George W. Bush administration and has not announced his presidential choice. Boies said he is voting for Hillary Clinton. 

“Merrick Garland is 63, he’s enormously well qualified, highly respected by his colleagues on the court of appeals… and the Republicans might decide, ‘We could do a lot worse and we can go ahead and vote,’” Olson said.

The final decision, however, comes down to Senate Majority Leader Mitch McConnell.

Both Clinton and Trump have vowed to push major issues before the Supreme Court as president – issues over which the candidates are starkly divided. Trump said he would appoint a pro-life justices who would overturn the Roe v. Wade abortion rights decision – while Clinton said she’d defend it.

And Clinton opposed the 2008 District of Columbia v. Heller decision, which affirmed an individual’s right to possess a firearm and struck down a handgun possession ban in Washington, D.C.  Leaked video of Clinton at a private fundraiser shows the Democratic nominee saying that the Supreme Court was “wrong” in its interpretation of the Second Amendment.

But none of this will be easy for the next president. Olson observed that even Supreme Court nominees can “change their mind” once they are appointed.

All That Mattered: Supreme Court decided Bush v. Gore

Who we elect next month could be even more consequential as there are likely to be more Supreme Court vacancies during their presidency — three current justices are around 80 years old.  

“Now, they do well, it’s a healthy environment over there in the Supreme Court, they live quite long — David and I are never going to have that chance,” Olson joked. “But... there’s a likelihood that there is going to be a vacancy maybe in the second or third year.”

But before the next president can confront these challenges, the more immediate issue is ensuring a smooth election.

When asked about the possibility of a “rigged” election, as Trump keeps warning, Olson said it’s “conceivable” but “highly unlikely.” In 2000, Boies and Olson were on opposing sides of Bush v. Gore, when then Democratic presidential nominee Al Gore refused to concede the election to George Bush amid a Florida recount.

“I don’t think we’ve ever really had a rigged election for presidency,” said Boies, who represented Gore in the case. “We’ve had some very close elections – we’ve had the situations in 1960 where there were allegations about votes in Illinois, you had some issues in the 200 election – but I don’t think you’ve ever had a rigged election in the sense that voter fraud has determined the outcome.”

Still, Boies acknowledged the risks of hacking in the election process, particularly with electronic machines that don’t have a paper record.

“Some electronic machines… have a paper record so that you can go back and check it. But some of the electronic machines don’t have a paper record, so if somebody hacks in, you may not be able to prove it.”