The Supreme Court really matters in this election
For half a century, presidential candidates have consistently asserted that there are no bigger stakes in the election than upcoming Supreme Court appointments.
This year, for the first time since 1968, the dreadful warnings could in fact have a significant effect on electoral behavior.
Since the death of Judge Antonin Scalia in February, the court has blocked 4-4 in four cases, including a few large ones. Out of several others, a single vote determined the result. In addition, Merrick Garland, the candidate to replace Scalia, will still await a Senate review on Election Day; two judges will be 80 and one will be 78.
It’s likely that Hillary Clinton or Donald Trump will have at least two or three appointments in a first term. And that will shape a number of important issues, ranging from immigration to racial preferences, the role of unions and environmental issues.
The importance is underlined by the last two presidents. Had Vice President Al Gore won the Electoral College vote as well as the popular vote in 2000, the court seats now occupied by Chief Justice John Roberts and Samuel Alito would have been filled by more liberal jurists, giving progressives a majority. Likewise, if the Republican had won the White House in 2008, Elena Kagan and Sonia Sotomayor would not be on the pitch and the Conservatives would enjoy a comfortable majority.
The stakes are even more obvious now. The last time there was a vacant seat in a presidential election was in 1956. In October, President Dwight D. Eisenhower tapped William Brennan into a suspension appointment for the slot. In 1968, Chief Justice Earl Warren declared his intention to resign, but President Lyndon Johnson’s choice to succeed him, Justice Abe Fortas, was blocked by the Senate.
This year, the two candidates take up the question. Trump has released a list of 10 conservative jurists he might consider for court vacations.
Clinton didn’t go that far, but she vowed that anyone named would promote abortion rights and overturn recent court campaign funding decisions.
The activists on the right and on the left are shattered and will certainly be part of the tribunal of their fundraising.
The Conservatives have done a slightly better job of understanding the issue. They can be helped this time around by court rulings on affirmative action, abortion, same-sex marriage and the maintenance of Obamacare which the right-wing has found disappointing.
They are not, however, convinced that a President Trump, recently converted to conservative causes, would be an ally, even though they liked his list of potential candidates.
Miguel Estrada, one of the most prominent conservative legal intellectuals, despite being a fan of Garland, admitted that he probably wouldn’t like the people Clinton appoints. He is not appeased, however, by Trump’s list: “It’s like a game of Russian roulette with Trump,” Estrada said.
“He’s just as likely to name Judge Judy as anyone on this list,” he added, referring to the reality TV star.
Liberals are hoping Trump will stir up their base, especially Hispanics. One of the deadlocked Supreme Court rulings in that term effectively suspended President Barack Obama’s executive order to prevent the deportation of millions of undocumented workers. It will probably be considered again.
There are also questions about the Clinton court appointments. She once said she would love to appoint Obama to the bench – William Howard Taft became chief justice after leaving the White House – but it’s unlikely.
As president, Clinton would likely like to hire someone younger, more liberal and from a more diverse background than Garland, 63, who was first appointed in March. But passing it on would be a rebuke not only to the respected judge, but also to Obama. This is probably not the way she would like to start a presidency.