How the deadlocked Supreme Court became a leading campaign issue

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Protesters with We Need Nine, a group calling for the U.S. Senate to allow President Barack Obama to nominate a ninth Supreme Court justice, display their signs in front of the Supreme Court in Washington U.S., October 4, 2016.          REUTERS/Gary Cameron - RTSQPVK

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GWEN IFILL: The U.S. Supreme Court’s refusal this week to rehear a key immigration case dealt a setback to millions of undocumented immigrants hoping to stay in the U.S. legally.

It also reflects the continuing difficulty of deadlock, in this case, the limitations of an eight-person bench. The issue of the immigration program’s legality could yet return to the high court, but one whose makeup is likely to be decided by the next president.

Twelve-year-old Victoria Bonilla, like many seventh graders, spends weeknights hammering away at her homework. Unlike her classmates, she worries her mom won’t always be there to help.

VICTORIA BONILLA: I’m worried that they might take my mom away from me, which is really hard for a kid, because, like, you know you can’t live without your mom.

GWEN IFILL: Victoria is an only child and a U.S. citizen. But she was born to a mother who came to the country illegally, from Eli Salvador in 2004.

The Bonillas live in Gaithersburg, Maryland, a Washington suburb, where Hilaria works as a restaurant manager. She says she moved to the U.S. to escape domestic abuse, one of an estimated four million parents who would have qualified for legal status under a 2014 executive action issued by President Obama.

The president’s plan was blocked by a Texas federal judge last year, leaving families like the Bonillas in limbo. The court deadlocked 4-4 when it heard the case earlier this year, leaving the lower court’s hold in place.

And with the ninth seat vacant since Justice Antonin Scalia’s death nearly eight months ago, there is no resolution in sight.

“NewsHour” regular Marcia Coyle covers the court for “The National Law Journal.”

MARCIA COYLE, National Law Journal: This is such an important issue, it may be well that the court is willing to take another shot at it if it does have a ninth justice eventually.

PRESIDENT BARACK OBAMA: I chose a serious man and an exemplary judge, Merrick Garland.

GWEN IFILL: President Obama’s nominee, Merrick Garland, chief judge of the D.C. Court of Appeals, has languished without a confirmation hearing since March, after the Republican Senate majority declared it was too late in the president’s term to allow him a nomination.

SEN. MITCH MCCONNELL, Senate Majority Leader: The American people may well elect a president who decides to nominate Judge Garland for Senate consideration. The next president may also nominate somebody very different. Either way, our view is this: Give the people a voice in filling this vacancy.

GWEN IFILL: The conservative Judicial Crisis Network has spent more than $4 million opposing Garland’s confirmation.

CARRIE SEVERINO, Judicial Crisis Network: The Constitution gives the authority to choose the Supreme Court justices to the president, as the nominator, and then to the Senate, which gives its advice and consent. And there’s a lot of ways it can do that. It doesn’t have to have hearings or votes on a specific schedule. And, historically, two-thirds of the justices who have not been confirmed, who’ve been rejected by the Senate, it’s been because they didn’t get a vote.

SEN. HARRY REID, Senate Minority Leader: All we’re asking is for the Republicans to do their job. Now, Mitch McConnell set out and he did it publicly. His number one goal was to make sure Obama wasn’t reelected. He failed at that miserably, just like he is going to fail miserably here. We are going to have a Supreme Court justice. It’s the right thing to do.

GWEN IFILL: Michele Jawando follows the Supreme Court for the liberal Center for American Progress.

MICHELE JAWANDO, Center for American Progress: The Supreme Court is supposed to be the final arbiter of the most difficult constitutional and statutory questions in our country. And if they can’t make a decision to move us in a direction that the framers intended for us to move forward on, then we have a major problem.

GWEN IFILL: It is also clear that the Scalia vacancy is not the only worry for those most concerned about the court’s future.

MARCIA COYLE: If you look at the ages of the justices who are currently on the Supreme Court, the potential is very high that the next president would be able to fill not only one seat, but possibly as many as three and maybe even four.

GWEN IFILL: That makes Supreme Court appointments a campaign issue; 65 percent of registered voters told Pew Research this year that Supreme Court appointments are — quote — “very important.” Seventy percent of Trump supporters said the same, compared to 62 percent of Clinton supporters.

HILLARY CLINTON (D), Presidential Nominee: One of the reasons this election is so important is because the Supreme Court hangs in the balance.

(CHEERING AND APPLAUSE)

DONALD TRUMP (R), Presidential Nominee: Even if you can’t stand Donald Trump, you think Donald Trump is the worst, you’re going to vote for me. You know why? Justices of the Supreme Court.

GWEN IFILL: Even Texas Senator Ted Cruz, who called Trump a pathological liar during the campaign, told conservative radio host Glenn Beck that the future of the court drove his decision to endorse Trump last month.

SEN. TED CRUZ (R-Texas): Almost every one of our constitutional rights hangs in the balance. We have a narrowly divided court with Justice Scalia’s passing. Just about every right we cherish is at risk of being lost.

GWEN IFILL: That makes Hillary Clinton supporters like Michele Jawando nervous about what a Trump court would look like.

MICHELE JAWANDO, Center for American Progress: There are questions about if he even understands the constitutional contours of his role as president. There’ve been questions about, does he understand what due process is or what constitutional protections are available to all Americans?

GWEN IFILL: Whether the court is made up of eight or nine justices, that political divide could make it more powerful than ever.

“National Law Journal”‘s Marcia Coyle:

MARCIA COYLE: The political polarization that we have been experiencing in the last eight years has driven more organizations and people to turn to the courts for answers to some of the questions and issues that Congress has not been able to address. And that has raised the profile of the U.S. Supreme Court.

And it also has made the Supreme Court loom much larger in every American’s life than it has been perhaps in recent decades.

GWEN IFILL: And for Hilaria Bonilla and her daughter, this election’s outcome will hit close to home. Will they stay or will they go?

HILARIA BONILLA: We never know. So, we are going to work and we never know if we can come back or not. So, it’s difficult.

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