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There are signs that the U.S. Supreme Court may be emerging as a significant election issue for the first time in more than 30 years. During the televised debate between George W. Bush and Al Gore last week, both candidates discussed the criteria they would use in making judicial nominations. With the retirement of more than one justice likely during the next several years, and with the Court closely divided on many controversial issues, Democrats and Republicans agree that the upcoming election could have a critical impact on the Court’s direction. If history is any guide, however, judicial issues will produce much campaign bluster but will affect few ballots. UNCERTAIN IMPACT A long and largely forgotten line of presidential candidates and political activists have attempted to make the federal courts a decisive issue in many presidential elections during the past century. Their efforts have nearly always failed: The courts are not institutions that ignite the passion of voters. Bob Dole learned this lesson in our last presidential election, after voters responded with indifference when he attacked Clinton-appointed federal judges for allegedly coddling dangerous criminals. Only three times — in 1924, 1964, and 1968 — has the federal judiciary emerged as an issue that actually may have swayed votes. Even in those elections, the issue’s impact remains uncertain. In 1924, campaigning as a third-party Progressive nominee, Sen. Robert LaFollette of Wisconsin attacked the Supreme Court for its decisions striking down social and economic regulatory legislation, and proposed allowing Congress to override the Court’s decisions by a two-thirds vote. His campaign withered, however, when President Calvin Coolidge and his fellow Republicans vigorously accused LaFollette of seeking to sabotage constitutional government. (Republicans made a similar charge with much less effect against President Franklin Roosevelt during the 1940 campaign, in an attempt to exploit popular opposition to Roosevelt’s unsuccessful 1937 Court-packing proposal.) The decisions of the Warren Court — particularly those involving the rights of criminals, school prayer, and reapportionment — were prominent in both the 1964 and 1968 elections. In 1964, Republican nominee Barry Goldwater frequently attacked these decisions and promised to make more conservative appointments to the Court. During the 1968 campaign, after the Warren Court had continued to expand criminal rights in the wake of a major increase in crime, both Richard Nixon and George Wallace repeatedly promised to appoint justices who would be more solicitous of what Wallace called “law and order.” Discontent over the Court’s decisions may have helped Nixon win his close race against Hubert Humphrey. There are indications that the Court is more prominent in this year’s election than it has been since 1968, with 36 percent of voters in a recent Newsweek poll indicating that they regard Supreme Court appointments as a significant election issue. Democrats are attempting to cultivate this issue by warning voters that the fate of abortion rights, affirmative action, gun control, and gay rights all hinge upon judicial appointments that the next president is likely to make. Meanwhile, Republicans may be more hesitant to discuss the Court, possibly because they fear their judicial preferences will risk alienating moderate voters. Even so, judicial issues are unlikely to have much direct impact on the election. There are several reasons for this. First, many of the most significant and divisive issues that confront the Court are too abstruse for most voters to grasp. For example, few voters are likely to comprehend the subtleties of the Court’s recent division over profound issues of federalism. Even those voters who know that the Court recently shielded states from lawsuits arising under the federal age discrimination statute are unlikely to fathom the Court’s complex interpretation of the 11th and 14th amendments in its decision. Moreover, the Court itself today is not a subject of unusual controversy, in contrast to past elections when the judiciary emerged as a major issue. Since the present Court is difficult to peg as “liberal” or “conservative,” the general direction of the Court no longer provides a lightning rod for criticism. Controversies instead revolve around individual decisions of the Court, which run the gamut from conservative to moderate to liberal. In this environment, Democrats must warn about the perils of a conservative take-over of the Court, a stance that is less likely to capture voter enthusiasm than a call to reverse the Court’s direction. As in previous elections, moreover, the impact of the Court issue also may be muted because the issue is often little more than a reflection of how voters already feel about candidates. For example, a voter whose support for Gore is based largely on his or her perception that Gore is more pro-choice than Bush is not likely to prefer Gore more merely because Gore may be more likely than Bush to appoint pro-choice judges to the federal courts. In an era of low voter turnout, however, the judicial issue may motivate some voters to show up at the polls because they perceive that judicial appointments raise the stakes of the election. The prospect of upcoming Supreme Court nominations also stimulates political activists to greater commitment and provides an incentive for fund raising. The People for the American Way, for example, has issued a 78-page report entitled Courting Disaster, which warns about the dangers of “a Scalia-Thomas Supreme Court.” The issue of judicial appointments also may be attaining more prominence in presidential elections because the increased scrutiny of judicial candidates has reduced the traditional risk that judges will defy the expectations of the presidents who appoint them. Of course, there will always be a high degree of unpredictability in judicial performance. As the late Yale Law Professor Alexander Bickel once observed, “you fire an arrow into a very distant future when you appoint a Justice.” The performance of judges today, however, is more predictable because candidates for the Supreme Court as well as the lower courts receive far more intense scrutiny both during the presidential nominating process and Senate confirmation proceedings. Of course, even now the process is not flawless — when President Bush appointed David Souter to the Court, he surely did not expect the new justice to become so liberal. The importance of judicial issues in this year’s elections also reflects a growing sophistication about the Court. The highly publicized brawls over the 1987 Bork nomination and the 1990 Thomas nomination helped to stimulate greater awareness of the Court, as have improved news coverage of judicial issues and the growing ubiquity of legal issues in American life. Although polls consistently show that few voters pay careful attention to judicial decisions and that even the names of most of the justices are unknown to the overwhelming majority of Americans, few voters are unaware of the Court’s vast power to affect significant public issues. Voters seem to understand generally that the Court can affect such highly charged issues as abortion, school vouchers, school prayer, and violence against women. Many voters also recognize that Supreme Court appointments are likely in the near future because of the average age of the justices. UNANIMITY ON VALIDITY The debate over the Court this year also helps to underscore the resilience of public respect for the Court and acceptance of the Court’s power to review the constitutionality of state and federal legislation. In contrast to the virile populist attacks on judicial power in so many campaigns of yesteryear, no major candidate or political movement today questions the validity of judicial review or attacks the Court as an institution. (Of course, politicians on both sides of the political divide demonize individual judges and justices.) Nearly everyone seems content to allow the Court to exercise vast powers, either because they support such powers or because they recognize the political impracticability of reining them in — which would include measures such as abolishing life tenure, abrogating judicial review, curbing jurisdiction, or implementing any of the other remedies widely advocated by two-fisted critics of judicial power until relatively recent times. The issue today, therefore, is not the validity of judicial power itself, but rather who will exercise that power. In a variation on the old adage “if you can’t beat them, join them,” voters and politicians of all persuasions today seek to elect presidents and senators who will appoint judges who will serve their agendas. Although few votes may pivot on judicial appointments, voters are rightly giving more consideration to the types of judicial nominations that the next president will make. William G. Ross is a professor at the Cumberland School of Law at Samford University in Birmingham, Ala. He has previously written about constitutional law and the judicial appointments process, and can be reached at [email protected]

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