You’ve heard it said too many times to mention from the Left and the Right that elections have consequences, and that this has particular relevance with regard to the president’s prerogative in picking judges. Getting beyond that mere aphorism, however, these consequential presidential prerogatives are not unbounded by political realities. President Bush, for example, made selecting judges in the mold of Justices Scalia and Thomas a major feature of his campaign. This bore political fruit both in terms of politically energizing those concerned with the direction of the Court and similarly in terms of promoting midterm Republican gains in Congress. This shouldn’t be surprising given that polling suggests that the constitutionalist conservative vision for the courts resonates with the general public much more than the freewheeling liberal vision. For example, a November 2008 nationwide survey of actual voters conducted by the polling company for the Federalist Society found that 70% want judges who “will interpret and apply the law as it is written and not take into account their own viewpoints and experiences” over judges who “will go beyond interpreting and applying the law as written and take into account their own viewpoints and experiences.”
Indeed, as Quin Hillyer reported in his DC Examiner column, even Walter Dellinger, Clinton’s acting solicitor general, conceded that “the judicial philosophy issue breaks in favor of conservatives across the country.”
Notwithstanding this acknowledged political advantage, Obama is likely to face extraordinary pressure to appoint a hard-Left judge to replace Souter. For example, in a Huffington Post article titled “Obama Must Not Waver On A Souter Replacement,” the author implores Obama to “appoint an honest-to-goodness liberal to the Supreme Court.” Similarly, the ultra-liberal People for the American Way encourages him to make a “bold” choice.
If he succumbs to this pressure, he may appease those fringe elements of his party, but he is likely to alienate many mainstream voters of both parties. This could have profound consequences in the midterm election and beyond, as more mainstream voters are confronted with the jurisprudential consequences of such potential liberal appointments.
And so the polling and Clinton’s former solicitor general offer a cautionary note for President Obama: yes, elections do have consequences, in this case that Obama now has the constitutional duty to appoint judges; however, who Obama picks may have consequences for elections yet to come.