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In the final days before Nov. 6, additional scholars and analysts are remarking on the great impact the next president could have on the Supreme Court and lower federal courts, while this important topic has hardly been debated in their campaigns.
In the Los Angeles Times, Erwin Chemerinsky, dean and professor of law at the UC Irvine School of Law, wrote an op-ed saying there is great public interest about hot-button issues that may ultimately be decided by justices chosen by the next president:
“So why are the candidates ignoring this issue? Their advisors probably have told them that voters don’t care, or at least that it is unlikely to matter to the crucial undecided voters. But this may well be creating a self-fulfilling prophecy because voters won’t care unless the candidates choose to make the composition of the courts an important election issue.
“But I have seen that audiences do care greatly about the future of abortion rights, the corrosive effects of money in politics, the rights of gays and lesbians to marriage equality and so many other issues that are decided by the courts. All this and so much more will turn on who picks the next Supreme Court justices.” Read more
The presidential election “will almost certainly be crucial for the future of the court and the judiciary as a whole,” yet the candidates have largely avoided discussing the court, Emily Bazelon writes in Slate.
In this context the court itself has adroitly maintained a low profile in the 2012 election, in part by deferring possible decisions to take up cases involving such controversial issues as challenges to the federal Voting Rights Act and Defense of Marriage Act, Bazelon contends.
Why aren’t President Barack Obama and challenger Mitt Romney talking about the courts? “The obvious answer is that they’ve each concluded it’s not to their political advantage,” she says. To read about discussion of the courts at a debate between Vice President Joe Biden and challenger Paul Ryan, see Gavel Grab.
Bazelon’s commentary is headlined, “Above Politics: The Supreme Court is keeping a low profile this election year by deftly choosing cases that avoid the hot-button issues.”
After Rep. Paul Ryan and Vice President Joe Biden clashed over abortion and the Supreme Court’s role (see Gavel Grab), will the next high-level campaign debate bring further fireworks about the top court?
There’s plenty of news media interest in that possibility, with analysts remarking on the major role of the high court in Americans’ lives, and the brief extent to which the top national candidates have discussed it. Here are examples: CBS News, “Will the Supreme Court finally enter the 2012 campaign;” San Francisco Chronicle op-ed, “Supreme Court balance hangs on election;” and Associated Press, “Supreme Court becomes a campaign issue.”
A column by Alfred P. Doblin in New Jersey’s The Record, meanwhile, took Ryan, the GOP vice presidential candidate, to task for his knocking the Supreme Court’s justices as “unelected:”
“Ryan chose to disparage the high court by elevating elected officials as the gods of righteousness. Judging by the scandals of members of Congress on both sides of the aisle — members who have used their offices as piggy banks, lived their lives as pigs and far too often dug their snouts into troughs of public money — I would not righteously march so quickly across that bridge to nowhere.”
“Americans should be thankful that there are nine unelected justices. Conservative. Liberal. Moderate. It does not matter. These are serious people who take their jobs seriously.”
The Supreme Court began its 2012-2013 term on Monday facing “weighty cases and a new dynamic,” according to a New York Times headline, and the court drew extensive media attention, some of it also examining how a new president might influence its composition.
The major cases alluded to by reporter Adam Liptak in the New York Times included a challenge to the core of the federal Voting Rights Act and other cases involving same-sex marriage and involving affirmative action in higher ed admissions.
The new dynamic, the article said, centers on Chief Justice John Roberts Jr., who voted with the 5-4 majority to uphold central portions of the federal Affordable Care Act this year. “Every decision of the new term will be scrutinized for signs of whether Chief Justice Roberts, who had been a reliable member of the court’s conservative wing, has moved toward the ideological center of the court,” Liptak wrote.
Meanwhile CNN had an article entitled, “Election raises stakes for possible Supreme Court vacancies,” and two articles listed potential candidates if an opening develops on the high court.
The future face of the Supreme Court is the “most important issue that neither President Obama nor Mitt Romney ever mention on the campaign trail,” legal analyst Jeffrey Toobin asserts in a CNN commentary.
To cite just a few of the far-reaching recent rulings of the court, Toobin points to Citizens United and how it has impacted the current election season, and the court’s ruling on the Affordable Care Act and its impact on Barack Obama’s presidency — and candidacy for reelection.
Toobin notes the advancing age of some of the current justices, as well as the fact that it never is known how many Supreme Court picks a president will get, if any. He discusses the the long-lasting legacy that a president’s choices may have.
“With a little more than a month to go, it’s not too late to ask the candidates to take a stand on their plans for the court,” Toobin writes. He concludes that “there are few more important things to know about our current and future presidents.”
With the Supreme Court beginning its 2012-2013 term on Monday, and the November presidential election quickly approaching, some news media are examining the impact of the next president on the federal courts.
A NBCNews.com report stated that conservatives in the battleground state of Ohio and elsewhere around the country are concerned about the impact on the judiciary of another term by President Barack Obama, according to poll results.
“Both on the Supreme Court – where ‘swing vote’ Justice Anthony Kennedy and conservative Justice Antonin Scalia are age 76 – and on the courts of appeal, where there are now 14 vacancies, Obama would be able to nudge the courts in a progressive direction if he wins a second term,” reporter Tom Curry wrote.
Carrie Severino of the Judicial Crisis Network told NBCNews.com, “The potential impact of the next president on the Supreme Court is immense.” If Obama wins and gets three more high court picks, “that would put him in the position of having nominated the majority of the justices on the Supreme Court. That’s an incredible influence over the way the court shapes American society.”
With three Supreme Court justices becoming octogenarians in the next presidential term, and a fourth getting closer to 80, the mark that the next president could make on the court is drawing more attention.
A Bloomberg article reports that the issue has surfaced in the presidential race. It is headlined, “Aging Justices Give New Life to High Court as Campaign Issue.”
On the campaign trial in Colorado last week, and before an audience that was mostly female, President Barack Obama emphasized his putting two female justices on the highest court. “The next president could tip the balance of the court in a way that turns back the clock for women and families for decades to come,” he said. “The choice between going backward and moving forward has never been so clear.”
Republican Mitt Romney mentioned the court in an appearance before the National Rifle Association in April. He warned that if Obama gains another term, he “would remake” the court and constitutional gun rights would be endangered.
“Our freedoms would be in the hands of an Obama court,” Romney said. “Not just for four years, but for the next 40.”
The upcoming presidential election, and the presence of more controversial cases on the Supreme Court’s docket next term, are drawing attention to possible nominees that the winner might name to the nation’s highest court in event of a vacancy.
An ABA Journal article focuses on potential nominees in the event President Obama is reelected, or if Republican Mitt Romney defeats him. The article is entitled, “Youth Will Out: No Matter Who Wins, SCOTUS Nominees Will Get Younger.”
Names of leading potential nominees if Obama wins a second term include: California Attorney General Kamala Harris, 47; Sen. Amy Klobuchar, D-Minn., 52; Judge Jacqueline H. Nguyen, 46, of the Ninth U.S. Circuit Court of Appeals; and Massachusetts Gov. Deval Patrick, 56.
If Romney wins the presidency, speculation about his top potential nominees includes: Supreme Court litigator Paul D. Clement, 46, a former U.S. solicitor general; Judge Brett M. Kavanaugh, 47, of the U.S. Court of Appeals for the D.C. Circuit; Judge Diane S. Sykes, 54, of the Seventh U.S. Circuit Court of Appeals; Judge Neil M. Gorsuch, 44, of the Tenth U.S. Circuit Court of Appeals; and Judge Jeffrey S. Sutton, 51, of the Sixth U.S. Circuit Court of Appeals.
“The Supreme Court is essentially going to be on the ballot this November,” Margery F. Baker, executive vice president of People for the American Way, told ABA Journal.
Justices “long outlive the presidential administrations during which they are named. It is truly the most lasting legacy a president can have,” said Clint Bolick of the Goldwater Institute in Phoenix.
How should the Supreme Court be treated as an issue in the presidential election this year? Two prominent analysts, historian Jeff Shesol and columnist George Will, have offered suggestions aimed at President Obama and Mitt Romney, respectively.
For The Daily Beast blog, Shesol wrote a commentary entitled, “Why Obama shouldn’t campaign against the Supreme Court.” Although a number of Obama backers have advised the president to do so, “it is not the year … for a crusade,” Shesol writes. He explains:
“’If President Obama took the position they were urging,’ warns [former Republican Attorney General Ed] Meese, ‘he would be pretty well smacked down’ by Republicans. What’s worse, Obama would be rebuffed by independents and even some Democrats. While we may be witnessing a loss of public confidence in the court, there has not yet emerged, either on the left or in the center, any great groundswell of anger against it.”
Will returned in a Washington Post column to a theme he developed earlier, his belief that excessive judicial restraint is not a virtue (see Gavel Grab). The Post commentary was entitled, “Unleash the high court.”