Why 2012 Counts: The Quiet Battle for the Courts
It is a fair bet that sometime in the next 6 years - likely starting in 2012 - one or more of the Supreme Court Justices will retire. Ruth Badar Ginsburg will be 79 in 2012; Antonin Scalia and Anthony Kennedy both will be 76; Steven Breyer will be 74. Assuming that one or more of them decide to retire because of age or health, the President and Senate who appoint their replacements will most likely appoint a jurist who is young and likely to stay on the bench for years - even decades - to come.
Bush v. Gore and Citizens United give the lie to any notion of one side or the other being so-called judicial activists. They both are. In study after study, it is a fact that a judge's or justice's politics follow him to the bench. One person's judicial activism is another's strict constructionism or originalist view of The Constitution.
Inasmuch as the Supreme Court hears only about 75 cases a year, a no less important battle for control of the courts rages at the district and appellate level within the federal court system between liberals, moderates and conservatives. There are 678 federal courts and 179 appellate courts which dispose of some 60,000 cases a year. The President and Senate are reponsible for appointments to those courts as well.
Eisenhower, Nixon, Ford and Clinton appointees to federal courts ruled conservatively in about 52% of the cases they heard. Appointees by Reagan and both Bushes, conservative outcomes jumped to 62%, according to Cass Sunstein, a professor of Law at the University of Chicago.
A 2006 study of thousands of federal cases by Robert Carp, a political scientist at the University of Houston, found the George W. Bush's appointees to federal benches came to conservative opinions a full 5 % more often than appointees made under Bush I and Ronald Reagan and that the "judges appointed by President George W. Bush are the most conservative on record when it comes to civil rights and liberties." The signature Supreme Court case of Hamdan, in which the court denied a civil trial to a suspected terrorist sparked off much debate among the legal community as to where the War on Terror was taking civil liberties.
Moreoever, a four-month investigation of Bush-appointed judges by the Center for Investigative Reporting reveals that six appellate court judges and 18 district court judges contributed a total of more than $44,000 to politicians who were influential in their appointments. Some gave money directly to Bush after he officially nominated them.
In short, the justice system is under attack by a quiet movement of hard right conservatives. And it is this battle for the makeup of the courts, whose decisions will affect Americans as much or more directly as any bill emanating from the halls of Congress, that is playing out quietly as the eyes of Americans are focused on the doings of a dysfunctional legislative branch.
All the major issues confronting Americans: Roe and abortion, religion in public schools, civil rights, the right to appeal, the death penalty, gay marriage, and others, will at some point be addressed by future federal district courts and slowly move up the ladder to circuit courts of appeal and the Supreme Courts itself.
The election of 2012 will have as much to do with our legal system as it will the ideological direction of future congresses and presidents. And for that reason alone, if no other, it is more than time to think about the consequences of how we cast our votes two years hence. The stakes couldn't be higher.