JURIST Guest Columnist William G. Ross of Cumberland School of Law, Samford University, says that when they go to the polls in November, American voters should carefully consider the candidates' positions and likely impact on the federal courts as the outcome of the 2008 election could profoundly influence the decisions of those courts, and especially the US Supreme Court, for decades to come. …

Judicial appointments rarely are an important issue in presidential election campaigns. This year’s campaign has been no exception. Preoccupied with anxiety over the deteriorating economy and national security, the candidates and the voters seem little concerned with how the election will affect the Supreme Court and other federal courts.

But they should be concerned.

The federal courts ought to have a prominent role in the 2008 election insofar as the outcome could profoundly influence the decisions of the federal courts, particularly the Supreme Court, for decades to come. It is a truism that Supreme Court appointments are among the most important and enduring legacies of presidents.

Although predictions about Supreme Court vacancies are notoriously chancy, there is a strong possibility that John Paul Stevens, who will turn 89 next April, will leave the Court during the next presidential term. Some observers of the Court also believe that Ruth Bader Ginsburg, who is 75 years old and has suffered from health problems, is likely to resign during the next four years. Moreover, David H. Souter, who will be 70 next year, is rumored to be considering retirement. Since each of these “liberal” Justices has determined the outcome of many cases decided by a five-to-four vote, the replacement of even one of these Justices with a more “conservative” Justice could decisively alter the Court’s decisions on a multitude of issues, including abortion, affirmative action, criminal procedure, and the scope of federalism and the commerce clause. Meanwhile, the next president has the power to substantially shape the character of the lower federal judiciary.

Despite the importance of the courts, the presidential and vice presidential candidates are not making any significant effort to interject judicial issues into the present campaign. Although a substantial majority of voters in at least one poll have indicated that they regard judicial appointments as an important factor in determining how they will vote, there is little indication that judicial issues actually are swaying many votes.

The Court was practically forgotten until the third debate between McCain and Obama on October 15, when both candidates discussed judicial appointments in response to a question. Both assured voters that they would not impose any "litmus test" for Supreme Court nominations, although McCain explained that he would nominate judges who favor a strict construction of the Constitution and that he does not believe that anyone who supports Roe v. Wade could fit this criterion. Both emphasized that they would base their nominations primarily on professional qualifications, and Obama added that he also would seek persons who have "a sense of what real world folks are going through." McCain pointed out that he had voted to confirm the nominations of Stephen Breyer and Ruth Bader Ginsburg because he respected their qualifications despite his reservations about their ideologies.

Until last night, the Court had attracted widespread attention only once, and then only incidentally, when Sarah Palin during her interview with Katie Couric was unable to identify any decision, other than Roe v. Wade, with which she disagreed.

Palin has continued to assail Roe. In a speech in Johnstown, Pennsylvania last week, for example, Palin declared that a “vote for Barack Obama is a vote for activist courts that will continue to smother the open and democratic debate that we deserve and that we need on this issue of life.” She does not, however, seem to be addressing other judicial issues. Despite the crash course on civics in which she was immersed during her days in Sedona after the Couric interview, Palin has not demonstrated that she knows or cares any more about the Court now than she did when Couric cornered her.

Similarly, McCain has had little to say about the Court since last spring, when he devoted a speech at Wake Forest University to a criticism of “the common and systematic abuse of our federal courts” by judges who “have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges.” McCain in that speech avoided mention of specific decisions and he failed even to identify most of the subjects of the cases in which judges supposedly had exceeded their constitutional powers. McCain may fear that more criticism of “activist” judges may scare away moderate voters without doing much to fire up the Republican Party’s conservative base, which Palin has helped to secure.

Joseph Biden, who has been a member of the Senate Judiciary Committee for thirty-five years and served as its chair for eight years, would appear to be the ideal candidate to interject judicial issues into the campaign. Probably no living person who has not served as president has had more influence over judicial appointments. Even Biden, however, has made few references to the Court. Speaking at a roundtable of working mothers in Denver last summer, Biden declared that “the single most important thing Barack Obama can do,” other than ending the war in Iraq, “will be to determine who the next members of the Supreme Court are going to be.” Predicting that there might be as many as three vacancies on the Court during the next four years, Biden explained that “[i]ts not merely the woman’s right to choose which is at stake. It’s whether or not you are going to be able to have a fair shot at a fair wage. It’s whether or not you are going to be able to demand that you are treated equally in every aspect of your life.”

Since then, however, Biden has remained largely reticent about the Court. Biden was silent even during his debate with Palin, when many political observers expected him to make at least a passing reference to Supreme Court appointments.

Obama appears to have spoken even less about judicial issues than McCain, Palin, or Biden. His reticence contrasts with Democratic presidential nominees in 2000 and 2004. Al Gore attempted to make the Court a significant issue in 2000, when there were few other prominent issues, and John Kerry made at least a few pointed references to judicial appointments in 2004. Having served as president of the Harvard Law Review and as a longtime adjunct professor at the University of Chicago Law School, Obama must be keenly aware of how the election might affect the Court, and his reticence may reflect his general reluctance to encourage perceptions that he is radical. It is telling that Obama’s most significant comment about the Court may have been his expression of disagreement with one of the Court’s “liberal” decisions — its five-to-four ruling last June prohibiting capital punishment for any individual crime in which a victim’s life is not taken. A Democratic candidate who tries to score points with “conservative” voters by assailing a decision restricting capital punishment is not likely to wax eloquent about how personal liberties are at stake in the upcoming election.

Political activists and public interest groups also seem to be making less of an issue of the courts than they did during the past few presidential campaigns. For example, th
e Judicial Confirmation Network recently aired a television commercial that criticized Obama’s opposition to the nominations of John G. Roberts and Samuel Alito, but spent more time questioning Obama’s association with alleged political radicals.

The Court’s low profile in the presidential campaign was illustrated last week in a speech about the federal courts that President Bush delivered before the Federalist Society in Cincinnati. Coming at the height of a presidential campaign from a president who often has blasted “activist judges,” Bush’s remarks were remarkably muted. Bush pointed out that judges can have a “profound impact…on the daily lives of every citizen” and he argued that the Court’s various five-to-four decisions demonstrate that “the selection of good judges should be a priority for all our citizens.” Bush, however, avoided any direct admonition about the election’s importance in shaping the Court’s future. He largely confined himself to praising his Supreme Court nominees Roberts and Alito and criticizing the Senate for blocking confirmation of some of his nominations to the lower federal courts.

The reluctance of the candidates or their surrogates to address judicial issues is consistent with the Court’s low profile in most presidential election campaigns. During the past century, the Court was a significant issue only in 1912, 1924, 1964, and 1968. It was a moderately important issue in 2000.

The Court usually has emerged as a significant election issue only when a broad range of its decisions have been intensely unpopular with a large and distinct bloc of voters. In the 1912 and 1924 presidential campaigns, a “conservative” Court’s invalidation of economic and social regulatory legislation provided a lightening rod for criticism by advocates of such laws. In 1964 and 1968, the Warren Court’s “liberal” decisions on the rights of criminal defendants, desegregation, apportionment of voting districts, and school prayer became major election issues. The 1964 Republican nominee Barry Goldwater castigated many of those decisions and promised to appoint “strict constructionist” judges, as did the Republican nominee Richard M. Nixon and the American Independent candidate George C. Wallace in 1968.

In contrast with the Court of the so-called “Lochner Era” and the Warren Court, the decisions of the present Court are quite diffuse. For the past several decades, the Court has defied any simple “liberal” or “conservative” label. Since the 2004 election, for example, the Court has offended many political “conservatives” and pleased many “liberals” in decisions protecting the constitutional rights of alleged terrorists, prohibiting capital punishment for crimes committed by juveniles, and allowing states to exercise eminent domain for purposes of private economic development. During the same period, the Court has dismayed many “liberals” and gratified many “conservatives” with its decisions sustaining the federal Partial-Birth Abortion Ban Act, striking down the District of Columbia’s handgun ban, and invalidating the use of racial criteria in making school assignments. All of these decisions were closely divided; most were decided by a vote of five-to-four.

Since some of the Court’s decisions have pleased “conservative” voters and other decisions have appealed to “liberals,” neither political party can portray the present Court as a bogeyman and vow to transform its composition, as did Goldwater, Nixon, and Wallace. Discussion of the Court therefore requires candidates and their surrogates to discuss the possible effect of judicial appointments on specific issues.

The discussion of such issues in a presidential campaign is difficult because these meretricious contests discourage serious discussion of public affairs. Candidates naturally avoid discussion of specific Supreme Court decisions since most are too nuanced and complex for many voters to comprehend. Palin’s apparent ignorance of numerous “liberal” decisions other than Roe v. Wade with she might be expected to disagree illustrates why the Court is not a major issue in this campaign. Palin’s apparent lack of knowledge about the Court presumably is shared by many voters and would not be shocking if she were not a governor and a candidate for the vice presidency. Indeed, surveys indicate that the overwhelming majority of voters do not know the names of most of the Supreme Court justices. It is difficult to transform the Court into an issue when so many voters know so little about its decisions and its judges.

When candidates discuss the Court at all, they therefore usually confine themselves to a few salient issues that resonate with a broad spectrum of voters. Since abortion is such a highly charged political issue, both Democrats and Republicans during the past several presidential campaigns have emphasized that the election could determine the fate of Roe v. Wade. Palin’s ability to name only Roe highlights the likelihood that abortion is the only issue about which the prospect of Supreme Court appointments is likely to influence significant numbers of voters.

Roe's pre-eminence in political discussions of about the Court was underscored again during the third debate, when both McCain and Obama addressed judicial appointments almost solely in the context of Roe. If Obama had not criticized the Court for its recent decision restricting rights of action under the Equal Pay Act, an uninformed viewer practically would have been left with the impression that abortion is the only important issue that the Court adjudicates.

Similarly, the Court is an elusive and amorphous election issue insofar as voters cannot be certain that a president will necessarily nominate the type of judges that they favor, that the Senate will confirm such nominees, or that the Justices themselves will conform to the expectations of the presidents and senators who placed them on the Court. As Dahlia Littwick recently observed, “it’s hard to generate much public hysteria over nameless, faceless, future jurists deciding nameless, faceless future cases.” In the present election, many Republican voters may be particularly skeptical about McCain’s ability to place “conservative” Justices on the Court insofar as the Democrats are likely to have a comfortable majority in the Senate.

Another reason why voters may be apathetic about judicial issues is that many voters probably do not align themselves as rigidly as do most Justices along so-called “liberal” and “conservative” lines. To a remarkable extent, the Court’s five-to-four votes during recent years have mirrored the dichotomy between political “liberals” and political “conservatives” and the divisions between Democrats and Republicans. Among many voters, however, these lines are more blurred.

For example, most Supreme Court justices who have opposed strict constitutional limitations on laws prohibiting abortion have favored stringent constitutional restrictions on laws permitting capital punishment, and vice versa. While this alignment generally is consistent with public opinion, various studies have found that surprisingly many opponents of abortion also oppose capital punishment. Similarly, the Court’s splits on controversial issues such as affirmative action, gun ownership rights, separation of church and state, and eminent domain usually have reflected “liberal”/ “conservative” dichotomies. Many voters, however, may oppose affirmative action but favor strict limitations on gun ownership, or oppose school vouchers while favoring tight restrictions upon the power of eminent domain.

Voters whose political views are not easily labeled as liberal or conservative therefore may not especially care whether “liberal” or “conservative” judges dominate the federal courts insofar as either way the courts will render some decisions that they like and others that they dislike.

Judicial issues likewise are often difficult to transform into political issues because the po
litical process can help defuse opposition to judicial rulings. For example, most of the states have enacted legislation in the wake of Kelo v. New London to prohibit or restrict the exercise of eminent domain for private purposes. Similarly, many supporters and opponents of legalized abortion are aware that many states probably would enact relatively liberal abortion statutes even if Roe v. Wade were overturned.

Moreover, candidates and their supporters may have little incentive to address judicial issues since such appeals often would be redundant insofar as voters’ attitudes toward the judiciary merely reflect how they already feel about a presidential candidate. For example, a voter whose support for Obama is based heavily upon his or her perception that Obama is more pro-choice than McCain is not likely to become any more supportive of Obama because he or she perceives that Obama is more likely to nominate pro-choice judges to the federal courts.

Despite the many difficulties and uncertainties of addressing judicial issues, candidates and political activists ought to make more of an effort to call attention to the ways in which the election could affect the federal courts. Since the decisions of these courts so profoundly influence so many facets of American life, judicial issues are too important to ignore in a presidential campaign. Even though judicial issues often are abstract and complex, and the behavior of individual justices is unpredictable, most voters should be able to make intelligent general assumptions about how McCain or Obama nominees would rule on a wide range of critically important subjects. Voters therefore should carefully consider how the election will affect judicial decisions.

William G. Ross, a professor of law at the Cumberland School of Law at Samford University, teaches and publishes on the subjects of constitutional history and professional responsibility. His works include “The Role of Judicial Issues in Presidential Campaigns,” 42 Santa Clara Law Review, 391-482 (2002). His website is williamgeorgeross.com.
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