200 Reasons Why the Election Matters
The future of the federal judiciary is at stake on November 4, 2008.
by Terry Eastland
12/03/2007, Volume 013, Issue 12
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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." Which 200, you ask? "The 200 federal judges that the next President of the United States will likely appoint over four years in the White House. That's roughly the average that a president gets to appoint." Actually, the average is something under 190. (Ronald Reagan appointed 379 judges in his two terms, and George Bush 192 in his one term. Bill Clinton appointed 372 judges in eight years, and George W. Bush has named 292 in his almost seven years.) But Giuliani is right about the stakes.
If the two parties saw eye-to-eye on what makes a good judge, then judicial selection wouldn't be an issue. 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 Republicans, if we can continue to speak generally here, are the party of the "dead Constitution," as Justice Antonin Scalia once jokingly called it. 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 Democrats running for president don't object to the Court's methodology in Roe. 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.
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 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.
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. 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. 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. He's said to be in fine 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.
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