The next president will tip the courts, one way or another.
Supreme Court openings are all but guaranteed, and that's just the start: 44 trial and appellate federal judicial vacancies already await filling. There will be more.
Consider this: President Bush has placed 316 judges on the bench during his two terms. One out of three federal judges now owes a lifetime-tenured job to the current president. Whoever replaces Bush will likewise recast courthouses, top to bottom.
“The proper role of the judiciary has become one of the defining issues of this presidential election,” Republican presidential candidate John McCain said in May. “It will fall to the next president to nominate hundreds – hundreds – of qualified men and women to the federal courts, and the choices we make will reach far, far into the future.”
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In truth, many polls suggest, relatively few voters consider the federal judiciary a defining issue. But those who do care, care a lot.
On Monday, timed to the opening of the Supreme Court's new term, the conservative Judicial Confirmation Network will begin running ads on Fox News Channel attacking Democratic nominee Barack Obama.
“It's kind of a sleeper issue in this election, with so much else going on,” said Wendy Long, counsel for the Judicial Confirmation Network, but “our internal polls show people do care about the issue.”
McCain used his May speech at Wake Forest University to drive home what his campaign terms his own “vision for the courts.” This includes homage to a “strict constructionist philosophy” and a commitment to appoint Supreme Court justices like John Roberts and Samuel Alito.
Obama, a former part-time University of Chicago law lecturer, takes a different direction. While praising their legal qualifications, Obama voted against both Roberts and Alito. In doing so, the Harvard Law School graduate shed light on his own judicial inclinations.
“Legal process alone will not lead you to a rule of decision,” Obama declared during debate over the Roberts nomination. “In those difficult cases, the critical ingredient is supplied by what is in the judge's heart.”
Tellingly, Obama cited affirmative action, reproductive rights and the rights of the disabled as among those legal questions requiring judges to possess “empathy.” It is now commonly assumed in Washington legal circles that Obama would appoint a woman and/or a person of color to the high court if given a chance.
Either candidate is bound to put his standards into practice. By next September, six of the nine Supreme Court justices will be at least 70 years old. Justice John Paul Stevens turns 89 in April.
“The Supreme Court is on the ballot this fall, and the stakes could not be higher for Americans,” said People for the American Way President Kathryn Kolbert in a statement released Wednesday.