Today, the first day of the Supreme Court’s fall term, President Bush is scheduled to offer a significant speech on judicial nominations in Cincinnati, Ohio. That Bush chose the judiciary as the subject of one of his last major speeches is fitting. Unlike Eisenhower, who once quipped that his two biggest mistakes were “both sitting on the Supreme Court,” history is likely to find Bush’s appointments of Chief Justice John Roberts and Justice Samuel Alito to be among his administration’s greatest and most enduring accomplishments. And it is more than just a little symbolic that the speech is in Ohio, the perennial swing state that secured Bush’s victory in 2004, where the judiciary was and should once again be a major campaign issue.
In 2004, Bush enjoyed a ten-point lead in the polls over rival John Kerry on the question of who the public trusted to make judicial appointments. This trust paid dividends on Election Day, as exit polls reflected that moral issues, which necessarily included concerns over judges imposing their policy views on issues such as gay marriage, were key for voters.
And yet the issue of judges has largely been an afterthought in this seemingly interminable election cycle. Both McCain and Obama have nodded to their bases on this issue — McCain issuing a major speech in May, and Obama articulating his view of a proper judge in speeches, particularly to pro-abortion audiences — but neither has embraced the topic with the fervor of then-candidate Bush.
Some of this de-emphasis is a natural function of the prominence of other issues, like the economic bailout, or the mini-bar-like prices at the pump. But the downgrading of the judicial issue also seems to be a deliberate calculation by the campaigns that the judicial nominations issue just isn’t as pressing as it was in recent elections. Some Republicans seem to view this election as zero-sum game for the judiciary, reasoning that the two most likely retirees from the Supreme Court — Justices Stevens, 88, and Ginsburg, 75 — are also among the most liberal members of the Court, which would mean that their replacement by liberal judges would not alter the Court. This is wrong for several reasons.
First, it assumes that you are replacing apples for apples. But justices are more complex that simply “conservative” or “liberal.” There are some would-be nominees who would push the Court into bold new areas beyond those promoted by even the most liberal members of the current Court. For example, rumored Obama nominee and Yale Law School Dean Harold Koh, would likely attempt to subject the United States to more of the norms of international law, in order to promote his desired “transnational” jurisprudence. Rumored nominee and Harvard Professor Cass Sunstein might attempt to complete what he calls the “unfinished” Constitution by rummaging through what seems to be his preferred interpretive document — FDR’s Second Bill of Rights — for goodies including my personal favorite, the right to sufficient compensation for recreation. Such nominations might prove that the devil you know is better than the devil teaching at the Ivy League institution.
Second, the zero-sum theory underestimates the number of vacancies the Supreme Court could see in the next term. Looking solely at age, six current justices will be 73 or older before the next presidential election. While age is obviously not the only factor in determining when vacancies arise, and it is somewhat ghoulish to focus unduly upon it, it is nonetheless obvious that the hands of time significantly impact retirements.
Third, those who base their arguments on a baseline of two vacancies presume that the next President will occupy the White House for only four years. Recent history suggests that this is not a fair assumption. If the next President holds office for the far-more predictable eight years, he will see a Supreme Court in which eight-out-of-nine justices are over 65 before his term ends.
Fourth, this theory fails to take into account the circuit courts, which are the final courts of review for the vast majority of federal cases. Vacancies on the Fourth and Fifth circuits, which together cover seven states, are already producing narrowly divided circuits. Add to these vacancies the retirements which will occur in the next four or eight years, and the next administration will be able to substantially reshape the composition of numerous courts.
Given the stakes, the judiciary should be a major issue in the election. And, despite the relative silence of the candidates, it appears that it still is. A recent poll of likely voters commissioned by The Federalist Society reveals that 45 percent of likely Ohio voters ranked judicial nominations as a top-five election issue. Tellingly, 71 percent of Ohioans wanted judges who “will interpret and apply the law as it is written and not take into account their own viewpoints or experiences.” This can’t be good news for Obama, who told the Planned Parenthood Action Fund that
we need somebody who’s got the heart — the empathy — to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled or old — and that’s the criteria by which I’ll be selecting my judges.
Once again, Ohio is predicted to be a swing state in just a few short weeks. President Bush, who made the courts a major issue in his successful campaigns, thus offers messengers Obama and McCain a pointed reminder not to misunderestimate the importance of judges.
– Robert D. Alt is a NRO contributor. He is a fellow in Legal and International Affairs at the John M. Ashbrook Center at Ashland University, and is deputy director of the Center for Legal and Judicial Studies at The Heritage Foundation.