People For the American Way

More Recognition of the Courts as a Presidential Election Issue

Andrew Cohen has written a terrific article for The Atlantic making clear the critical importance of the federal courts as an issue in the presidential election. His article is particularly addressed to those who are disappointed with both Barack Obama and Mitt Romney:

Which man would you rather have over the next four years nominating (to lifetime jobs) the next 200 federal judges? Isn’t that a serious question, the answer to which has little to do with the president’s drone program or Mitt Romney’s ties to corporate power? Isn’t it a legitimate question you still have to ask once you’ve convinced yourself … that neither candidate has otherwise lived up to expectations?

It’s not a wonkish question. From the national voting rights fight on down, you’d have to be in a coma this cycle to be unaware of the vital power that federal judges hold in American life. And not just the justices of the United States Supreme Court, who decide only a tiny fraction of the cases that come before them, but the trial judges and lower appellate judges, who resolve 99.9 percent of the federal cases they hear. Which main candidate do you want to staff these benches over the next four years? Romney or Obama?

At the Supreme Court level, Romney has said he would nominate Justices like Antonin Scalia and Clarence Thomas. Obama has a track record with Sonia Sotomayor and Elena Kagan. On issues relating to civil rights and civil liberties, the rights of individuals vis-à-vis giant corporations, the toxic mix of money and elections, it makes a difference who will be nominating the Supreme Court Justices. As for the lower courts, Republicans are looking forward to placing more right-wing ideologues on the bench, especially on the circuit courts. The DC Circuit is a great example of the damage they can do.

Cohen writes:

If there is one thing I have learned this election season, one thing I’ve come to realize as I’ve covered all the voter suppression cases this year, it is that America’s legal and cultural and social wars never really end. The rights and benefits, the freedoms and liberties, won in one generation, have to be fought for anew, and re-won, in another. That’s why today, in 2012, we are fighting over contraception, and voting rights, and the Clean Water Act. The "long-term coup" James Fallows has written about? Which president’s judges are most likely to stymie it?

A vote for president, you see, isn’t just a vote that determines the policies and actions of the executive branch. It is a vote for the person who essentially staffs the leaders of another branch of government, the judicial branch, which has (and which has taken since Marbury v. Madison) the constitutional power to strike down the actions of the executive and legislative branches. A vote for president triggers in the winner the right and the ability to select good men and women to serve in high public office long past his tenure in the White House.

No matter what issue you care about, it will be addressed by judges who will be nominated by either Mitt Romney or Barack Obama. For many people, that is the most important reason to cast a vote for Barack Obama.


Andrew Cohen, Antonin Scalia, Barack Obama, Clarence Thomas, D.C. Circuit, Election 2012, Elena Kagan, judges, judicial nominations, Lower Federal Courts, Mitt Romney, Romney Court, Sonia Sotomayor, Supreme Court