Online election symposium: The seismic non-issue in the presidential campaign

The following contribution to our online symposium on the Supreme Court and the Election is by Clint Bolick, vice president for litigation at the Goldwater Institute and research fellow for the Hoover Institution, which published his recent book, Two-Fer: Electing a President and a Supreme Court.

Should control over Supreme Court nominations figure prominently in the forthcoming presidential election?  Yes, big-time.  Will it?  Not likely.

We will have forgotten about Barack Obama’s birth certificate controversy and Mitt Romney’s tax records, long before the successful candidate’s nominees leave the Supreme Court.  But check out the blogosphere (present company excepted) and you’ll find plenty of foment over symbolic issues in the presidential contest yet next to nothing about the importance of Supreme Court nominations.

On the “should it” side of the ledger, the fact is that Supreme Court nominations matter more than ever, for several reasons.

First is the soaring value of lifetime tenure.  When our republic was created, the average age of Supreme Court nominees was older than average life expectancy.  That has changed dramatically with increased human longevity.  And presidents are catching on, naming ever-younger Justices.

The result is that the average term of a Supreme Court Justice today is nearly twenty-five years – spanning more than six presidential terms.  Ronald Reagan last appeared on the ballot seven elections ago, yet two of his appointees (Anthony Kennedy and Antonin Scalia) still serve on the Court.  If Clarence Thomas remains on the Court until the retirement age of his predecessor, he will have served for forty years.  If Elena Kagan remains on the Court until her current life expectancy, she will serve until the year 2045.

Second is the improving science of judicial nominations.  It has been more than twenty years – with the appointment of David Souter by President George H.W. Bush – since a president last made a “mistake” by naming a Justice who disappointed him philosophically.  Abraham Lincoln, Franklin Roosevelt, and Richard Nixon all famously tried to pack the Court with Justices who would vote their bidding, yet many of their nominees turned out to be unpredictable.  But thanks to careful vetting of potential nominees by presidents of both parties, the current Supreme Court is the first in history in which all Republican nominees are conservative and all Democratic nominees are liberals.  So the party affiliation of the president who makes judicial nominations is enormously important.

Third, and related, is increased philosophical homogeneity within the Court’s voting blocs.  The Court’s five conservatives, albeit with noteworthy exceptions, overwhelmingly vote together on contentious issues.  The four liberals are even more cohesive.  The result is that on a host of critical issues ranging from congressional authority under the Commerce Clause to federalism, affirmative action, Second Amendment rights, private property rights, political speech, and school choice, the Court usually divides five to four along philosophical lines.  So the change of a single Justice could dramatically alter the course of constitutional jurisprudence.

Finally, three of the Justices (Kennedy, Scalia, and Ruth Bader Ginsburg) soon will reach their eighties.  We have not had a significant change in the Court’s philosophical balance since Thomas replaced Marshall more than two decades ago.  In the six subsequent appointments, liberals replaced liberals or conservatives replaced conservatives.  But in the next administration, the president may well have the opportunity either to shift the Court’s majority from conservative to liberal or to reinforce the conservative majority.  And given the number of years most Justices now serve, the majority created or reinforced in the next administration may endure for a generation.

For all those reasons, this election is a two-fer: whoever controls the presidency likely will control the Supreme Court as well.

And yet, pivotal as this issue is in reality, it likely will figure little in the campaign or election.  Supreme Court nominations rarely do, unless the Court has rendered deeply unpopular decisions, such as forced busing in the 1960s.  The threat of judicial action, such as the specter of overturning Roe v. Wade, can influence voters.  Public opinion polls suggest that the recent decision upholding most of the federal health-care law is unpopular.  But that only makes it difficult for President Obama to run against a Republican-dominated Court.

Polls also indicate that the Supreme Court is fairly unpopular.  Still, few of its recent decisions inflame voters.  Obama has used the Citizens United decision to foment populist discontent, and the health-care decision makes conservatives unhappy.  But in terms of driving voters to the polls, or from one candidate to the other, neither decision seems to deeply resonate.  In terms of health-care, the focus seems to be more on legislative repeal than targeting the Court itself as an election issue.

Nor are the candidates themselves making much of the Court as an issue.  Perhaps that is because it is unclear which way the issue would cut, or make a difference at all, especially among independent and undecided voters.

Rather, if the candidates deploy the issue, it likely will be to motivate their respective bases.  Certainly, whatever Obama’s perceived failings among liberal voters, he has not disappointed them on Supreme Court nominations.  And as a former professor of constitutional law, he certainly can articulate the stakes.

Romney, who remains suspect among many grassroots conservatives, could wield the issue of judicial nominations to galvanize the base.  The tea party movement is highly unusual in American history for being motivated by, and educated about, the Constitution and its interpretation.  Romney can’t claim to have nominated conservative firebrands to the courts when he served as Massachusetts governor.  But he can point to the health-care decision, and to Obama’s nominations of Kagan and Sonia Sotomayor, as reasons why he rather than Obama should be in charge of making appointments to the nation’s highest court.

And in fact, Supreme Court nominations are perhaps the best reasons to vote either for a Democrat or Republican for president.  Presidents regardless of party nearly always end up disappointing the people who voted for them on a wide range of public policy issues.  A Democratic president may bail out companies that are too big to fail and keep troops in foreign adventures.  A Republican might spend like a drunken sailor and destroy capitalism in order to save it.

But presidents today never disappoint their respective bases on Supreme Court nominations.  Oddly, even though the power to make those nominations rarely surfaces as a robust election issue, come vacancy time nominations become very important, and interest groups become extremely vocal.  Exhibit A was the President George W. Bush’s nomination of White House Counsel Harriet Miers, which was withdrawn after conservatives voiced skepticism over her philosophical bona fides.

Liberal and conservative activists are right to place a premium on Supreme Court nominations.  After all, Supreme Court Justices tend to remain more faithful to their principles than do the presidents who nominate them.  And most Justices will far outlast the administrations in which they were appointed.

All of which suggests that even if the presidential candidates don’t say much about the importance of Supreme Court nominations, they should be grilled about them in every debate and gathering.  For the Justices the next president appoints will be one his most impactful and enduring legacies.  Yet still I suspect we’ll hear more about tax records and birth certificates than we will about this titanic yet invisible issue.