The Supreme Court Boogeyman



One issue that seems to constantly arise during a presidential election is the issue of the Supreme Court and its importance in a presidential election.  There are those who don't understand why the battle of the courts is fought in every presidential election; there are those who believe that fight to be a specter raised by one side, or the other, to only generate support; there are those who believe that this fight is really about a boogeyman.


It isn't a boogeyman at all it is very real. Every presidential election is important to the make up of the Federal Court System, just not the Supreme Court, even if the Supreme Court is the most obvious one. It is the president who nominates the justices that serve on the federal bench, while it is the Senate who confirms those nominees. And while there are no constitutional requirements for serving on the bench, you donít even have to be an attorney for example, we traditionally appoint justices to the Supreme Court who have previously served on the Federal Appellate Courts. Therefore, a justice may first be appointed to one of the local district courts and then to an appellate court and finally to the Supreme Court. Keeping this in mind, you may begin to understand why the battle of the courts is fought every time there is a presidential election.


During the later part of the Clinton years, the Senate refused to confirm most of his appointees in hopes of having a Republican president elected in 2000. This left the federal bench vastly understaffed, so much so that it was considered a scandal at the time by the legal profession, in fact several articles and editorials, published in the professional publications for that field, were written about then. After the 2000 election, bush was able to appoint his own nominees. But with the Senate, at first in Democratic hands, none of the more controversial nominees could have been confirmed. Now with the Senate in Republican hands, these controversial nominees can be confirmed to the bench, and there is an even greater probability of this if the rules for the filibuster are changed.


While we have yet to see one of the Supreme Court justices indicate their desire to retire, we may very well do so at any time. And retirement isn't the only way a justice can be removed; one of them could easily die. If there is a vacancy on the Supreme Court for any reason in the near future, bush will get to appoint a replacement. One can only assume that this replacement will come from an appellate court, as is traditional done. With the Senate in Republican hands, and with no Democratic filibuster to stop it, this nominee will be confirmed, even if he or she is an ideologue of the worst sort. Federal Court positions are for life, the justices serve "during good Behaviour" and are only removed by impeachment, retirement or death. So this justice could be on the bench a very long time, and in that time do untold damage in deciding cases based on their own ideological views as to what is constitutional and what isn't.


While it is possible that bush will be able to appoint a Supreme Court justice in the remaining year and a half of his term, the odds increase to almost a certainty if he has a second term. And if it is several of them that he can appoint, the character of bench can shift so far right that it will be years before there could be any moderation in its tone. And this is only one court, even if it is the Supreme Court of the land; think of all of the courts in the system, and all the judges sitting in them. If bush gets a chance to fill many of these positions with conservative judges, even if they aren't right wing ideologues, what choice would a Democratic president have, assuming one is elected in 2008, in picking a justice to be appointed to either an appellate court or the Supreme Court but a conservative one, since there may not be anyone else available. Sure, he could go outside the federal court system for one, but how likely will it be that a non-judge, or a judge from one of the state court systems, could be confirmed to either position?

If, however, a Democrat were to be elected in 2004, he would then have his chance to appoint more liberal justices to the bench wherever there is a vacancy, and if there is a vacancy on the Supreme Court, to that court as well. Any conservative justice who wants to be replaced by another conservative would then have to wait until after the election of 2008 to see which party holds the White House then, and by all accounts some of the justices on the Supreme Court don't want to wait that long to retire. So unless several Supreme Court justices retire in the next year, and that seems highly unlikely, whoever wins the 2004 election would probably have an opportunity to appoint a justice to the Supreme Court and shift the balance of that court to either the right or the left.  And depending on the number of justices involved, that shift could be affecting this country for a very long time.