Judiciary up for grabs in presidential election

Clint Bolick Research Fellow, Hoover Institution
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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.

The final reason for the especially high stakes is that the Court’s balance is up for grabs. Since Justice Thomas replaced Thurgood Marshall 21 years ago, no president has had a chance to alter the Court’s precarious 5-4 conservative majority. But during the next administration, three justices — conservatives Kennedy and Scalia and liberal Ginsburg — will reach their 80s. Whoever wins the presidency likely will have the chance either to strengthen the Court’s conservative majority or shift the balance to the left.

The replacement of a single conservative justice by a liberal would produce a profound shift in constitutional law. Most important cases are decided by a 5-4 vote along conservative/liberal lines, encompassing such vital issues as property rights, campaign finance, school choice, federalism, the rights of criminal defendants, Second Amendment rights and constitutional limits on congressional power.

Many of the differences are gaping. In the 5-4 vote in the 2002 case upholding school vouchers in Cleveland, for instance, the liberal dissenters predicted such programs would lead to religious strife of the magnitude of Bosnia or Northern Ireland. The liberals recognize virtually no limit on the power of government to impose racial preferences, to regulate guns or to wield eminent domain to transfer property from one private owner to another.

Most salient at the moment is the question of whether congressional power to regulate commerce has any limits. The answer not only will determine the fate of Obamacare but whether the framers’ vision of a federal government bound to limited and enumerated powers will survive in America’s third century. While the Court’s five conservatives may or may not all vote to strike down the individual mandate as exceeding congressional power, it is a very safe bet that the four liberals — who are much more cohesive than their conservative brethren — will vote to uphold it.

Not just the Supreme Court but the lower courts, which decide the vast majority of federal cases, are at stake. When Barack Obama was elected president, only one of the 12 federal circuit courts of appeals had a majority of judges appointed by Democratic presidents. Today, five do — and two more, including the important District of Columbia circuit, are about to switch. The future balance will be determined by who wins the White House this year.

In terms of both real-world impact and enduring legacy, judicial nominations are the grand prize in presidential elections. It is one area on which the president’s party makes a big difference. A Republican president might spend like a drunken sailor and destroy capitalism in order to save it. A Democratic president might bail out Wall Street and fail to bring the troops home. But presidents today, Republican or Democrat, will never disappoint their respective bases on Supreme Court nominations.

Hence it would be greatly ironic if tea party conservatives and supporters of Ron Paul, most of whom style themselves “constitutionalists,” wind up abandoning the Republican nominee this fall. Unwittingly, in so doing, they might hand the future of the Supreme Court to a president for whom constitutional fidelity is far from sacrosanct.

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.