Why the Supreme Court is not a Key Issue in the Presidential Election—and Why it Should Be Commentary
Why the Supreme Court is not a Key Issue in the Presidential Election—and Why it Should Be
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JURIST Contributing Editor William G. Ross of the Cumberland School of Law discusses the implications that the choice to vote for either presidential candidate in this upcoming election will have in the Supreme Court…

Since this year’s presidential election is likely to tip the ideological balance of the US Supreme Court, judicial appointments ought to have emerged as a leading campaign issue. The candidates and the voters, however, are expressing little interest in the election’s consequences for the court. This is not as surprising as it may seem, for judicial issues rarely have figured prominently in presidential elections, even though the appointment of Supreme Court justices and other federal judges often are among a president’s most important legacies.

If ever there were a year when judicial issues should be at the front and center of a presidential campaign, 2016 is the year. In contrast with most previous election years, the prospect of Supreme Court appointments is not merely hypothetical. The next president is certain to make at least one appointment to the court because there is already one seat vacant following Antonin Scalia’s death in February and the Senate’s failure to act on President Obama’s nomination of Merrick B. Garland. There has not been such a certainty of an appointment since the election of 1968, when Chief Justice Earl Warren had announced his intention to resign and the Senate had tabled President Johnson’s nomination of Abe Fortas as his successor. Hillary Rodham Clinton’s election presumably would tip the balance of the Court since she would almost certainly nominate someone much more liberal than Scalia, even if she would need to temper her choice if Republicans retain the Senate. Although Donald J. Trump’s selection of a conservative to replace to Scalia would merely restore the close ideological balance of the Court, there is a substantial possibility that Trump could tilt the Court in a firmly conservative direction since the Court’s most liberal members are also the oldest and are the most likely to depart the court during the next four years. Ruth Bader Ginsburg, the court’s arch-liberal, is 83, the relatively liberal Stephen J. Breyer is 78, and the court’s swing voter, Anthony M. Kennedy, is 80.

The election therefore could have enormous consequences for a multitude of controversial constitutional issues, including voting rights; abortion; criminal procedure; the scope of congressional regulatory powers; affirmative action; government aid to religion; and campaign financing. The next president, like all presidents, will also make important appointments to the lower federal courts.

These issues, however, may be too complex and nuanced for a campaign that is dominated by sound bites, trivia and drivel. Judicial issues were not mentioned, even peripherally, during the first presidential debate, which became so mired in personal recriminations that important policy issues were completely ignored or only superficially addressed. In a world in which the polar ice caps are melting, a debate that delved into a candidate’s snarky comments about a beauty queen’s girth was hardly the kind of forum in which the candidates would notice the Supreme Court. Judicial issues likewise were ignored even in the more substantive and wide-ranging vice presidential debate, aside from Timothy M. Keane’s passing expression of approval for Roe v. Wade.

Finally, in the second debate on October 9, the Court literally took center stage when the candidates were questioned about it.

Describing the court as “one of the most important issues in this election,” Clinton averred that “the current court has gone in the wrong direction” and vowed to nominate Justices who would “change the balance” of the Court. In particular, she urged the appointment of Justices who would “get dark, unaccountable money out of our politics” by overturning Citizens United, who would not “always side with corporate interests,” and who would “recognize that voting rights are still a big problem in many parts of our country.” She also urged the appointment of Justices who uphold Roe v. Wade and marriage rights for same gender couples. She explained that this would require the appointment of Justices “who actually understand what people are up against” and “understand the way the world really works.” She therefore suggested that she might nominate persons whose professional backgrounds are broader than the Justices who have served during the past half century, most of whom have worked in large law firms and served as federal judges before becoming Supreme Court Justices. In particular, Clinton said that the appointment of persons who have had more experience as trial lawyers might make the Court more receptive to the needs of the people.

Trump had much less to say about the Court during the second debate. He promised to nominate justices who would resemble Scalia, particularly Justices who would protect Second Amendment rights. He used Clinton’s opposition to Citizens United as an occasion to commend his own self-financing and to criticize Clinton from accepting so much corporate funding.

Although Clinton and Trump both briefly mentioned the court’s significance in their acceptance speeches and have continued to occasionally mention the court, both candidates have consigned it to the back burners of their campaign and even there placed it on a low flame. There is little reason to suppose that the court’s brief appearance in the second debate signals any change. The court’s obscurity in the election campaign has frustrated many activists in both major parties, along with journalists and academics, who have tried to persuade voters that the court is a paramount issue. They hope that this is an issue that might motivate voting among persons who are so disillusioned with the candidates of their respective parties that they might otherwise sit out the election or drift to Gary Johnson, the Libertarian nominee or Jill Stein, the Green candidate. Indeed, both Republicans and Democrats have often invoked the court’s fate as the major argument against “wasting” votes on third party candidates.

The court’s most notable and unusual appearances in this year’s campaign occurred when Trump published a list of eleven prospective Supreme Court nominees in May, supplemented by an additional ten in September. Although presidential candidates often have described the kind of nominees they would appoint to the court, this was the first time that any candidate has named names. Since all of Trump’s prospective nominees are highly “conservative” jurists, Trump has dramatically announced his intention to nominate justices who could provide a solid majority for the kind of jurisprudence espoused by the late Scalia. Trump’s lists presumably are intended to generate support among “conservative” voters, who have questioned Trump’s views on social and cultural issues, particularly abortion. The lists, however, may motivate at least some progressives, particularly Bernie Sanders enthusiasts, to swallow the bitter pill of Clinton rather than stay home on Election Day or stray to Johnson or Stein. In the second debate, Clinton pointed out that the lists include judges who oppose Roe v. Wade and constitutional protection of same-gender marriage.

Trump’s lists could give some comfort to voters of all political persuasions, however, because all prospective justices have highly significant professional credentials, along with personal integrity that appears to be beyond reproach. Ten of the prospects are federal judges (of whom eight are on the US Court of Appeals) and ten are state supreme justices. The only non-jurist, Utah Senator Michael S. Lee, is a former clerk for Justice Samuel A. Alito, Jr. and chairs the Senate Judiciary Committee. Since Trump has been such an eccentric candidate and has selected at least some advisors who are not part of the political mainstream, it was not inevitable that Trump would have identified potential justices whose backgrounds are similar to those that presidents traditionally nominate to the court. On the other hand, it is far from certain the unpredictable Trump would necessarily nominate anyone on the list, or persons of similar jurisprudential views. Many commentators question whether Trump has much interest in the details of governing, including the selection of judges, and have predicted that advisors would have an unusually large role in judicial selection. The kinds of judicial nominees they would recommend is highly uncertain since Trump, who lacks previous political experience, has no long-term political advisors, and has provided remarkably few clues about the identity and ideology of his advisors if he were elected.

The court’s role in the present election is also more complicated than it has been for the past several elections because Trump, a former Democrat, in some ways is the most progressive Republican nominee in decades. He is the first major party nominee since George McGovern in 1972 to say that the United States should not police the world, he was the only Republican candidate during the primaries to unabashedly champion social service programs, and his views on hot button social issues such as abortion and gay rights appear to have been liberal until he sought the GOP nomination. Even his hardline views on immigration are quite attractive to countless rank and file progressives, who are far less inclined to favor porous borders than are Democratic leaders and “liberals” in the elite media. Trump’s populism in many ways places him to the left of Clinton, and he is receiving support from many Bernie Sanders voters. This makes it more difficult for Democrats to frighten party loyalists and liberals about the danger of Trump nominating Supreme Court justices.

On the other hand, Trump’s selection of Michael R. Pence as his running mate indicates that Trump is much less progressive than he seemed during the primary campaign. Indeed, the presence of Pence on the ticket ought to go far toward raising the court’s profile in the campaign since there seems little doubt that Pence would nominate hardline “conservatives” to the court if Trump did not complete his term and Pence became president. In actuality, however, the prospect of Pence picking judges and packing the court is unlikely to generate much excitement among “conservatives” or alarm among “liberals” because, throughout American history, voters have tended to pay little attention to vice presidential nominees. Even though seven presidents have died in office and one has resigned, the very real possibility that any vice president might become president seems to influence very few votes.

Another reason why the Court is not a major campaign issue is that the Senate could easily frustrate the efforts of either Trump or Clinton to transform the court’s ideology, particularly if the opposition party controls the next Senate. Even if the Senate did not actually reject a highly “liberal” or “conservative” nominee, the prospect of a confirmation brawl might encourage either Clinton or Trump to nominate a moderate, just as Obama selected the moderate Garland when Scalia died. At the present time, it is not clear whether the Republicans will retain their Senate majority, although polls increasingly suggest that Democrats will wrest control of the Senate. With respect to court appointments, Trump’s supporters therefore may have more reason to fear the prospect of a Clinton victory more than Clinton voters may have reason to fear Trump’s election. To undecided voters, however, the uncertainty of which party will control the Senate reduces the extent to which judicial appointments might influence their vote.

Voters also may regard judicial appointments as too hazy for their concern because Supreme Court justices are not at all obliged to conform to the political or ideological preferences of the presidents by whom they are appointed, and many have frustrated the expectations of the presidents who nominated them. The last such justice, however, was David M. Souter, and the intense ideological vetting of justices by both parties during the past quarter of a century has substantially increased the likelihood that a justice will mirror the politics of the president who appointed her.

Apathy about judicial issues in the present election is the norm rather than the exception. The court rarely has figured prominently in presidential campaigns. Judicial issues largely were ignored in 2012, even though there were no powerful issues to distract attention from the court and even though the court had recently outraged liberals by gutting campaign finance laws in Citizens United and offended conservatives by sustaining the Patient Protection and Affordable Health Care Act in National Federal of Independent Business v. Sebelius. The absence of such controversial decisions during the past four years and the salience of immigration, trade issues, and foreign policy in the present campaign helps explain why judicial issues have no more traction this year than they did in 2012. Judicial issues have not made a significant appearance in a presidential campaign since 2000, when there were no other major issues, and even then the court was not an overriding issue.

During the past century or so, the court has emerged as a prominent election issue only in 1912, 1924, 1964, and 1968, at times when the court was alienating a distinct bloc of voters on a wide range of issues. In 1912 and 1924, a “conservative” court’s nullification of economic and social regulatory legislation ignited criticism by Progressive candidates Theodore Roosevelt in 1912 and Robert M. LaFollette, Sr. in 1924. Decades later, the Warren Court’s “liberal” decisions promoting racial desegregation, expanding the rights of criminal defendants during a time of rising crime, prohibiting state-sponsored public school prayer and requiring equal population in voting districts (“one person, one vote”) generated indignation on the other end of the political spectrum. Republican candidates Barry Goldwater in 1964 and Richard Nixon in 1968 tapped this controversy by emphasizing their intention to nominate “strict constructionists” to the courts, while George Wallace in his bid for the Democratic nomination in 1964 and his third party candidacy in 1968 made castigation of the Court a staple of his campaigns. Even in those elections, the complexity of judicial issues frustrated the efforts of candidates to discuss them on the campaign trail, and the candidates found that their audiences became bored and often drifted away when they began discussing constitutional doctrines.

Since the 1970s, judicial issues have been much more difficult to forge into campaign issues because the court’s decisions have been much more diffuse. During recent years, for example, the court has dismayed many “conservatives” and gratified many “liberals” by protecting the rights of alleged terrorists, ensuring the constitutional right of same-gender marriages, sustaining affirmative action programs in education; and prohibiting capital punishment and life sentences for juveniles. During the same period, the court has pleased many “conservatives” by expanding Second Amendment rights; approving voter identification laws; reducing federal oversight of election laws, and permitting more extensive state assistance to sectarian schools.

Another reason for voter apathy about judicial issues during recent decades is that many voters—probably most—are not as easily classified as “liberals” or “conservatives” as are virtually all of the Justices. For at least the past thirty years, the voting records of all of the justices except Kennedy and Sandra Day O’Connor have usually mirrored the policy positions of either the Republican or Democratic parties. The views of vast numbers of voters do not fit so neatly into partisan niches. For example, many voters who oppose abortion also oppose capital punishment. Other voters who favor national health insurance may oppose affirmative action, while some voters who favor stricter campaign financing laws may want to constrict the rights of criminal defendants. The countless voters who at various times have at different times cheered the opinions of both Scalia and Ginsburg may not especially care which candidate will nominate Supreme Court justices.

Judicial issues, however, may help galvanize a candidate’s political base and stimulate fund raising. Indeed, conservative and liberal activist organizations tend to emphasize judicial issues far more than do the candidates. Organizations that focus on judicial issues agree that the court should be an important election issue and are attempting to alert voters to the election’s likely effects on the court. For example, the Alliance for Justice, a liberal advocacy organization, is warning voters that the Court is at a “tipping point” and that this is a “make or break” election.

Despite the many difficulties of addressing judicial issues, candidates and political activists in all parties should ramp up their efforts to remind voters that the election is likely to profoundly affect the decisions of the Supreme Court and other federal courts.

William G. Ross is a JURIST 2016 Contributing Editor for the US Supreme Court. He is also the Lucille Stewart Beeson Professor of Law at the Cumberland School of Law at Samford University, where teaches and publishes on the subjects of constitutional law, constitutional law, and legal ethics.

Suggested citation: William G. Ross, Why the Supreme Court is not a Key Issue in the Presidential Election—and Why it Should Be, JURIST – Academic Commentary, Oct. 12, 2016, http://jurist.org/[academic/professional/student ]/2010/09/William-Ross why_the_supreme_court_is_not_a_key_issue_in_the_presidential_election_and_why_it_should_be.php.

This article was prepared for publication by Marisa Rodrigues, a Section Editor for JURIST Commentary. Please direct any questions or comments to her at commentary@jurist.org

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