Feature:Opinion

Judiciary up for grabs in presidential election

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Clint Bolick
Research Fellow, Hoover Institution
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      Clint Bolick

      Clint Bolick is a research fellow at the Hoover Institution, author of the new book, Two-Fer: Electing a President and a Supreme Court (Hoover Institution Press, 2012) and vice president for litigation at the Goldwater Institute.

President Barack Obama has thrown down the gauntlet: if the U.S. Supreme Court strikes down his precious health care law, he’ll make the courts an issue in the presidential campaign.

But it should be an issue regardless, because this year’s election is a two-fer: as goes the presidency, so goes the federal judiciary — including, most likely, control of the Supreme Court.

Judicial nominations ordinarily are nearly invisible as a campaign issue, yet they are among the most consequential and enduring decisions a president makes. For three reasons, the power to control those nominations is more important now than ever.

First, federal judges are invested with lifetime tenure, the value of which has increased along with life expectancy. Ronald Reagan was last elected nearly seven presidential terms ago — yet two of his appointees, Anthony Kennedy and Antonin Scalia, still serve on the Court.

The average term of a Supreme Court justice today is nearly 25 years — spanning more than six presidential terms. Presidents have caught on, naming ever-younger justices: among current justices, only one (Ruth Bader Ginsburg) was 60 when she was appointed. If Justice Clarence Thomas serves until the same age as his predecessor, his term will last 40 years. If Elena Kagan remains until her projected life expectancy, she will serve on the Court until the year 2045.

Second, the science of appointing justices who reflect the philosophies of those who nominate them has grown more precise. Presidents from Abraham Lincoln to Franklin Roosevelt to Richard Nixon tried to pack the Court with loyal minions, always with mixed results. Dwight Eisenhower famously remarked that the two biggest mistakes of his presidency both served on the Supreme Court.

But the growing influence of groups like the Federalist Society, with its emphasis on judicial philosophy, and the insistence among powerful interest groups on both left and right that presidents nominate justices to their liking, have led to very careful screening processes. Since the “stealth” nomination of Justice David Souter in 1990 that backfired on President George H.W. Bush, there have been no “mistakes” among the seven subsequent Supreme Court nominees.

The result is that for the first time, there is nearly perfect ideological homogeneity on the Court: all five justices appointed by Republican presidents are conservatives and all four appointed by Democrats are liberals. Indeed, the current justices tend to remain more true to their principles than do the presidents who appoint them.