Friday, October 31, 2008

Remember the judges

The 2008 presidential election has been notable for many reasons -- its sheer length, the amount of money raised and spent by the candidates from all parties (the most expensive per delegate expenditure belongs to Rudy Guiliani, who spent $43 million dollars to win one delegate from Florida, which he awarded to John McCain; the most bizarre expenditures belong to Hillary Clinton, who burned through $100 million before the Democratic campaign process ended in May, even though she was mathematically eliminated from contention in March, yet kept getting and spending in the hope that Democratic "superdelegates" would rescue her, a hope that was extinguished as soon as she was mathematically eliminated . . .) and, my personal favorite, the inexplicable selection of Sarah Palin as the Republican vice-presidential nominee.  But one notable absence from the campaign has been a serious discussion of what kind of justices either President Obama or McCain would appoint to the Supreme Court and, by extension, the lower federal courts.  Seeing as how the Court's four most conservative members are relatively young by the standards of Supreme Court justices, and that two of those members, Chief Justice John Roberts and Justice Sam Alito, are in their fifties, one would think that the Clinton or Obama campaigns would have made the Court a more important issue than they did or subsequently have. Then again, the Iraq war, which was the issue that Barack Obama first emphasized when he began testing the presidential waters two years ago, has been notably absent from either McCain or Obama's list of top-shelf issues for the past two or three months. I'm not sure what it says that a mindless, futile war that has resulted in the deaths of over 4,000 American soldiers and scores of Iraqi civilians is not a major campaign theme of this presidential campaign, but it does say something.

No one asked Obama or McCain about what kind of judges they would appoint to the federal courts, or how they felt about the Supreme Court decision in Gonzales v. Carhart (2007), which eliminated the "health of the mother" exception as a constitutional requirement in any state law regulating abortion. I was surprised not to hear any questions about how either candidate viewed, first as a potential president, the Court's four separate decisions in the Guantanamo Bay detainee cases since 2004. I really wanted to hear their answers: Why, for example, did John McCain work so hard to pass the Military Commissions Act of 2006, which the Court ultimately declared unconstitutional, which permitted the administration to hold detainees pretty much forever and do what they wanted with them, after he publicly stated his opposition to the Bush administration's stance on denying constitutional rights for terrorist suspects held on American soil?  I guess, in the grand scheme of things, little ditties like this are just not all that important, not compared, anyway, with getting to the bottom of Obama's "associations" with Bill Ayers and Jeremiah Wright.  Seriously, go back and look at the transcripts of the three presidential debates -- more time was spent on Ayers, Wright, Joe the Plumber and other inanities than the constitutional exercise of presidential power or having John McCain look millions of American women (and their daughters) in the eye and say, "No, I do not believe that women have a right to abortion under any circumstance, and neither does my vice-president."

And so here we are, just five days away from the presidential election, and neither candidate has had to address the role of the courts in the American political system or what kind of judges he would appoint to serve on them.  This morning, the New York Times reports that President Bush has appointed just over one third of the judges serving on the federal courts -- 65 to President Clinton's 61. His two successful nominees to the Court, Roberts and Alito, are, at least for now, much closer to its two most conservative members than Justice Anthony Kennedy or the recently departed Sandra Day O'Connor. One fact here bears worth mentioning for no other reason than I never see anyone mention this when they hear either W. or McCain talk up the greatness of Justices Antonin Scalia and Clarence Thomas.  Scalia and Thomas are not just the two most conservative justices on the current Court; they are, if you take a look at what they write and how they justify their decisions, without a doubt the two most conservative justices to serve on the Court since Willis Van Devanter and James McReynolds, two of the "Four Horseman" that blocked the New Deal legislative initiatives of Franklin D. Roosevelt.  And McCain wants to appoint more justices like that?  Justices who, seventy years ago, opposed the minimum wage, Social Security, labor rights, occupational safety and health regulation and virtually every staple of the modern administrative state.  Take a wild guess what Van Devanter and McReynolds would say to the constitutionality of the federal government's near-takeover of wide swaths of our financial, banking and insurance sectors.

Go ahead.

I feel about presidential campaign expenditures the way I do about my electricity bill.  I don't want to look, so I let my wife pay the bills. Actually, I don't "let" my wife pay the bills.  She has to pay them because I don't know how. But, I do know that the composition of the federal courts matters for reasons that matter a lot more than whether women will continue to have a constitutional right to abortion (they will, regardless of who is elected, for reasons I argued a few weeks back).  It's a shame that a complacent, disinterested mainstream media, more interested in Sarah Palin's costly makeover, Barack Obama's nic-fits, John McCain's home and automobile and house collections, and whatever the deal is with Joe Biden's hair, didn't see fit to ask our next president about he will exercise his considerable power to shape and define the federal judiciary for years, and possibly a generation, to come.

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