Seldom-Discussed Issue of Judicial Appointments Could Be the Most Consequential Result of This Election

Question: What is the most lasting effect that a President has upon the nation?

In some cases, wartime leadership is obviously a President’s most enduring legacy. But in most instances, a President’s Supreme Court and other judicial appointments constitute his – or someday, her – most lasting effect.

Indeed, even wartime Presidents’ Supreme Court appointments can have long-term effects that rival their military leadership. For example, President Franklin Roosevelt’s appointments led to such unfortunate changes as a limitless expansion of the Constitution’s Commerce Clause, thereby removing almost any remaining impediment to federal bureaucrats’ power. But for those appointments, America would be a very different place today.

Similarly, President Eisenhower was once asked to identify the biggest mistake he made during his administration. Humorously referring to liberal titans Earl Warren and William Brennan, whom he regretfully nominated, he replied, “two of them – and they’re both sitting on the Supreme Court.” The Warren Court and its legacy proceeded to exceed even FDR’s appointees in terms of sheer judicial arrogance.

As a more recent illustration, imagine for a moment the dramatic difference had John Kerry defeated President Bush in 2004. Instead of Justices Roberts and Alito, we might have experienced a solid 6 to 3 liberal majority, with two liberal appointees replacing Justices Rehnquist and O’Connor.

Furthermore, a President’s impact on America’s judicial branch isn’t limited to the Supreme Court. Each four-year term also witnesses the appointment of hundreds of District Court and Court of Appeals judges, who actually have a broader day-to-day impact than the Supreme Court itself.

Simply put, judicial appointments typically constitute a President’s most critical impact on the nation, sometimes amounting to tectonic shifts.

Accordingly, the issue of the candidates’ likely judicial appointments should rightfully demand a greater focus this year, not less. After all, two or more openings may occur on the Court during the next four years due to several justices’ advancing ages. When either McCain-Palin or Obama-Biden commence their upcoming four-year term on January 20, 2009, Justice John Paul Stevens will be 92 years old. But he is not alone. Justice Bader-Ginsburg will be 79, Justices Scalia and Kennedy will be 76, Justice Breyer will be 74 and Justice Souter will be 72. Thus, several openings are highly likely.

To be sure, it’s understandable that judicial issues in this election have remained uncharacteristically in the background. After all, the recent excitement surrounding Sarah Palin’s meteoric rise on the American political scene, the parties’ highly-celebrated conventions in recent weeks, the flashpoint issues surrounding this election and now “Lipstick-gate” have sucked much of the oxygen out of the air.

Judicial appointments have received some passing attention, such as during the Saddleback forum with Reverend Rick Warren last month. But not anywhere near the amount of attention that this issue deserves. Given the constantly-expanding influence that courts hold over every facet of our daily lives, one would expect more discussion.

This is particularly curious in light of this issue’s ability to motivate conservative voters, as happened when they bucked historical patterns and increased Republican Senate majorities in 2002 and 2004. For that reason alone, one would expect that the McCain-Palin campaign would be raising the issue of judicial appointments more than they have so far.

So where do the respective candidates stand?

According to Libertarian Party candidate Bob Barr, writing recently in The Wall Street Journal, there isn’t a dime’s-worth of difference between Senators Obama and McCain. But is this accurate?

Regardless of whether one is a liberal or conservative, the record appears to suggest otherwise. Most notably, Senator McCain voted to confirm both Chief Justice Roberts and Justice Alito. In contrast, Senator Obama voted to reject both nominees.

On other occasions, Senator Obama has suggested that he would nominate people similar to Justices Souter or Breyer, whom he considers “moderate.” For his part, Senator McCain has suggested that he would nominate jurists more similar to Justices Roberts, Scalia or Thomas.

It should also be noted that Senator Biden played a critical role in opposing the nominations of Judge Robert Bork in 1987, as well as Justice Clarence Thomas in 1991.

Thus, the two tickets actually appear to differ significantly in their approaches to judicial appointments. Hopefully, this issue will receive much greater attention during the upcoming debates and remainder of the campaign.