Constitutional Scholars Discuss the Election, Gender Bias, and the Supreme Court

By Eleanor Spencer

Today, November 8, 2016, Americans will elect the 45th President of the United States. The lead up to this election has been long and full of twists and turns. Some of these twists and turns were discussed at the Impact Center for Public Interest Law’s well-attended fifth Impact Thursday event, “The Election, The Supreme Court, The Constitution and The Rule of Law.” This event was held on September 29, 2016, and featured panelists Professor Richard Epstein of NYU Law School, Professor Jamal Greene of Columbia Law School, New York Law School’s own Professor Nadine Strossen, and moderator Jami Floyd, host of WNYC’s “All Things Considered.” The panelists discussed the role of gender in the election and the fate of the Supreme Court, along with many other issues including race, immigration, stop and frisk, executive orders, the press, and the first presidential debate. A link to the video from the event can be found here.

Gender Bias

One of the most interesting parts of the discussion concerned the role of gender in the campaign, and specifically the way that debating is different for Hillary Clinton, as the first female nominee of a major political party. Professor Strossen brought up how implicit biases can affect the way people watch debates. An implicit bias is a person’s subconscious thoughts or feelings toward a certain group. Specifically, Professor Strossen remarked that the same expression on a woman’s face can be interpreted as anger and emotion while on a man’s face it will be perceived as an expression of deep thought. There have also been discussions in the national media about how much Clinton should be smiling during events, a topic that is not often brought up when discussing male candidates. Also, the tone of a woman’s voice can affect how she is perceived, in addition to the way she dresses and the amount of emotion she expresses. Professor Strossen argued that Clinton overcame these challenges in the first debate, which took place two days before the discussion, while being both firm and pleasant. This is especially true considering Clinton was interrupted by Trump 51 times, while she interrupted Trump 17 times.

Impact Thursday took place before gender took on an even greater role in the election. On October 7, an “Access Hollywood” audio tape from 2005 was released in which Trump could be heard using aggressive language to describe sexually assaulting women, saying he could grope and kiss them because he was a star and therefore, could “do anything.” During the second presidential debate, when Trump was asked about the tape, he described the conversation as “locker-room talk” and then added that he has “great respect for women.” Also, Trump was described by some as “stalking” Clinton as she moved around the stage. During the third and final presidential debate, Trump was again asked about his attitudes toward women and responded that “no one has more respect for women.” However, he followed that up later in the debate by interrupting Clinton to call her a “nasty woman.” The role of gender has been an exhausting topic to follow this election cycle. At the very least, we can learn from what has happened and hopefully, future female presidential candidates will not face the same level of sexism that was seen in this election.

Supreme Court Vacancy

Another part of the discussion that was particularly interesting regarded the future of the Supreme Court. Jami Floyd posed the question about whether or not President Obama’s nominee, Merrick Garland, was a smart choice to fill the empty seat left by Justice Antonin Scalia’s passing in February of this year. Professor Strossen described him as a “consensus nominee.” Professor Greene highlighted that Garland was a well-respected judge and that politically speaking, he is a good nominee. Professor Epstein argued that, to Republicans, Garland is a better option than a Clinton nominee, and perhaps they are holding out for a possibly more preferable, Trump nominee. Jami Floyd reminded the audience this is the longest a Supreme Court nominee has waited to be confirmed by the Senate. Garland was nominated on March 17, 2016, which means that there have been over 200 days of Senate inaction. There is currently an ideological split on the court which means that some cases have resulted in 4 to 4 decisions. This means that the lower court’s holding stands and no Supreme Court precedent is established. On the other hand, in other cases the addition of a ninth justice could have changed the outcome of the case all together. This adds to the need for the empty seat to be filled as soon as possible, either in President Obama’s lame duck session or by the next president, so that the Court can get back to its full strength.

Professor Greene went on to speculate that it is likely that Garland will be confirmed in President Obama’s lame duck session if Clinton is elected in November. However, Clinton has not commented on whether or not she will stick with Garland as her nominee if he is not confirmed before the end of President Obama’s term. Depending on the outcome of the election, there could be pressure on Clinton to put forward a more liberal nominee. On the other hand, it could be harmful for Clinton to start out her presidency with a battle over the Supreme Court. As for Trump, both Professors Epstein and Strossen brought up his lists of nominees for the Supreme Court. The first list of eleven nominees was announced in May. In September, Trump put out a second list of ten nominees which, when combined with the first list, results in an unprecedented 21 potential nominees. Trump’s nominees have been characterized as conservative and provocative. Professor Epstein suggested that Trump’s lists are a diversion.


Overall, the panel discussion highlighted how important it is for eligible Americans to get out and vote. Additionally, not only is it important to vote but it is important to do research on the candidates and know what you are voting for. Voters should look to a candidate’s tax plan to see where the economy will be headed under their presidency. Trump’s policy is expected, in the long run, to increase federal debt more than current policy, whereas Clinton’s plan will have the reverse effect. Voters should also look at the candidate’s position on social issues such as marriage equality, abortion, healthcare and gun control. There is a lot at stake in this election, including the future of the Supreme Court and its interpretation of the Constitution. When voters head to the polls today, they should do so with the knowledge that the individual they are voting for will bring about long lasting changes that are the best for the future of our country.