200 Reasons Why the Election Matters
EDITORIAL 200 Reasons Why the Election Matters The other day, at the annual meeting of the Federalist Society in Washington, D.C., Rudy Giuliani observed that there are “200 reasons why the...
...Note that eight of the 12 circuits could go either way, depending on who the next president is...
...The future of the judiciary is also at stake in the 34 Senate elections next year...
...But assuming a Republican president, the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, and D.C...
...But the two parties disagree sharply over how judges should interpret the law, including our supreme law, the Constitution...
...The Democrats are the party of the “living Constitution,” by which is meant a Constitution that judges adapt to meet the needs of a changing society...
...The Supreme Court decides many fewer cases than it used to—75 to 80 each term—and the twelve regular circuit courts, which decide 30,000 cases annually, effectively function as courts of fi nal appeal...
...But Giuliani is right about the stakes...
...Right now the Supreme Court is closely divided, with four judicial liberals (John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer) and four judicial conservatives (Scalia, Thomas, Roberts, and Alito) and Anthony Kennedy, whose vote in the most controversial cases often determines which side prevails...
...He’s said to be in fi ne health, but if he were to leave the Court, a Republican president could create a conservative majority by picking someone on the order of the candidates’ professed models—Scalia, Thomas, Roberts, and Alito—while a Democratic president could preserve the status quo, jurisprudentially speaking, by naming a judicial liberal...
...Now, the great majority of the judges the next president will appoint will sit on district courts...
...This is not an issue that divides the Republican candidates...
...The Republicans regard the decision— rightly in our view—as the sort no judge should have rendered, because the right to abortion is located in neither the text nor the history of the Constitution...
...Or imagine how Roberts or Alito might have fared in the Senate had the Republicans not controlled it by a wide margin...
...And even if he faces a Democratic Senate with a large majority, a Republican president of suffi cient skill and tenacity can see confi rmed a judge who shares his judicial philosophy...
...No one can say for sure, of course, whether any vacancies will occur during the next president’s term, but the most likely justice to depart the Court is John Paul Stevens...
...But district judges can be overruled by the courts above—ultimately the Supreme Court, if the case ever gets there...
...They are important to the parties before them, and to the people and institutions in their jurisdiction...
...The future of the federal judiciary is at stake on November 4, 2008...
...And to the extent one approach to judging or the other, thanks to the new judges appointed, comes to dominate particular benches, its impact will be felt—just as, for 34 years now, Roe’s impact has been felt, in the enfeebling of the ordinary political process by which we the people otherwise would have decided for ourselves questions of abortion policy...
...They, too, are “reasons why the next election is really important...
...After all, in the appointment of judges, the president is the moving party: The only person who can be confi rmed by the Senate is someone the president has nominated...
...Of course, in any discussion of judicial selection it is necessary to point out that if a president faces a Senate controlled by the opposite party, it may be harder for him (or her) to appoint the most compelling exponent of his (or her) judicial philosophy...
...Which 200, you ask...
...His witticism indicated the view that judges are obligated to enforce the Constitution as it was understood originally, at the time of its making...
...The difference between the two approaches to constitutional adjudication may be usefully demonstrated with reference to Roe v. Wade, the 1973 case in which the Court constitutionalized the right to abortion...
...The prospect of a Republican minority in the Senate underscores the importance especially for judicial selection of electing a Republican president...
...The Democrats running for president don’t object to the Court’s methodology in Roe...
...Actually, the average is something under 190...
...That’s roughly the average that a president gets to appoint...
...Bear in mind that it was a Democratic Senate that fi nally did confi rm Clarence Thomas...
...And there it is not looking so good for the GOP, which, having to defend 22 seats to the Democrats’ 12, could lose seats in Colorado, Nebraska, New Hampshire, and Virginia...
...At 87, he is by far the oldest justice and with 32 years on the Court has now exceeded the average number of years served by justices appointed since 1970, which is 26...
...It is an issue that divides the two parties...
...Ronald Reagan appointed 379 judges in his two terms, and George Bush 192 in his one term...
...It is also an issue that voters, distracted by the horse-race aspect of the long campaign, may have to be reminded about, and often...
...Terry Eastland, for the Editors...
...No one can doubt that whoever is elected president will make judicial philosophy a central criterion in the process by which judges are nominated...
...And note, too, that with a Republican president the days of the seemingly eternally liberal Ninth Circuit might fi nally come to an end...
...There are 167 judges distributed among the 12 regular circuits, and the judges appointed to these courts from 2009 to 2013 are indeed very important “reasons why the next election is really important...
...Bill Clinton appointed 372 judges in eight years, and George W. Bush has named 292 in his almost seven years...
...circuits would likely have Democrat-appointed, and thus judicially liberal, majorities...
...The 200 federal judges that the next President of the United States will likely appoint over four years in the White House...
...Assuming a Democratic president, by 2013, the First, Second, Fourth, Sixth, Ninth, Tenth, Eleventh, and D.C...
...Which means their rulings in most criminal and civil cases, including those raising constitutional questions, are the law in their jurisdictions...
...That would reduce the number of Republican senators to 45 and make it relatively easy for a Democratic president to populate the courts with living Constitution judges...
...EDITORIAL 200 Reasons Why the Election Matters The other day, at the annual meeting of the Federalist Society in Washington, D.C., Rudy Giuliani observed that there are “200 reasons why the next election is really important...
...The Republicans, if we can continue to speak generally here, are the party of the “dead Constitution,” as Justice Antonin Scalia once jokingly called it...
...If the two parties saw eye-to-eye on what makes a good judge, then judicial selection wouldn’t be an issue...
...If we look at the composition of each circuit in terms of the president (Republican or Democrat) who appointed the judges and which ones are eligible for senior status during the next president’s term, we can make reasonable guesses at the impact of the next president on the district courts...
...Most don’t...
...Imagine the no doubt affi rmative confi rmation vote that would have occurred had Robert Bork been nominated in 1981 or 1986, when Republicans held the Senate...
...Giuliani is right...
...circuits—yes, all of the circuits—would likely have Republican-appointed, and thus judicially conservative, majorities...
Vol. 13 • December 2007 • No. 12
