The Judicial Election

The Houston Chronicle headlines George Will‘s latest column, “There are two ‘L-words’ in campaign: liberal, lawyers.” It’s an apt title.

In the second debate, when President Bush at last unsheathed the L-word, Kerry — who in 1991 proclaimed “I’m a liberal and proud of it” — flinched: “Labels don’t mean anything.” The reason conservatives do not talk like that was illustrated Wednesday. Kerry, a statist liberal in a conservative, antistatist country, begged the country to believe that the health care reform he, as the government’s foremost officer, would have the government implement is “not a government plan.” When Bush increased the megatonnage of his bombardment with the K-word — “Kennedy” — Kerry responded not by defending liberalism but by trying to flank Bush on the right with five genuflections to “fiscal responsibility,” three to “fiscal discipline” and one to being “fiscally sound.”

Wednesday, as in the rest of the campaign, the presidential power to shape the federal judiciary received remarkably little attention. Any president who serves two terms likely will replace half that judiciary; Bush already has replaced one-quarter. But he is about to become the second president (Carter was the first) to serve a full term without filling a Supreme Court vacancy. It has been 10 years since a new justice (Breyer) was confirmed; not since 1812-1823, when the court had only seven members, has it gone that long unchanged. Bush’s second term could be dominated by nomination battles: Chief Justice Rehnquist just turned 80 and the average age of the nine justices is 70.

Liberalism, having lost its ability to advance by persuasion, increasingly relies on litigation. In its flight from arenas of representation, liberalism has used the judiciary as its legislature. Hence the exultation of Ron Brown, then Democratic Party chairman, addressing an American Bar Association forum immediately after the 1992 election: “My friends, I’m here to tell you that the lawyers won.” The Democratic Party’s love — the word is too weak for the phenomenon — for lawyers is expressed in countless courtesies, from blocking tort reform to the multiplication of laws and regulations that make it impossible to navigate life without a lawyer in tow. Not surprisingly, as of mid-September lawyers were this year’s leading political contributors, with 73 percent of their $132.4 million going to Democrats. In contrast, oil and gas interests, which Democrats demonize and Kerry reflexively deplored Wednesday evening, give 81 percent of their contributions to Republicans, but as of mid-September their total to both parties was only $16.7 million.

Will has acknowledged elsewhere that, while candidates must talk conservative, they must act liberal, at least in terms of the proliferation of government benefits. Neither Bush nor Kerry will be “conservative” in any meaningful sense in terms of fiscal policy or social programs.

Nonetheless, while national security concerns have rightly dominated the campaign, domestic policy, especially the relationship the courts will have with society over the next quarter century or so, is very much at stake in this election. Given their ages, most of us presumed several Supreme Court justices would have retired early in Bush’s first term. Frankly, if they cared as much for the country as the trappings of power, they would have. It’s unlikely that they’ll be able to hold out another four years, however.

Given that neither party will emerge with a fillibuster-proof majority,we’re not going to have justices with the openly ideological pedigrees of a Antonin Scalia or William Brennan confirmed. But even the difference between a Ruth Bader Ginsburg and an Anthony Kennedy will be significant on the major issues of the day. Since presidents now appoint justices in their early 50s who hang around into their 80s, those decisions will affect us for several presidential terms to come.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Attila Girl says:

    I wonder whether it’s possible that a few of the justices anticipated another attempt to “steal the election” this November, and hung around another couple of years to prevent that.

    Just a thought.

  2. Actually, I think it’s the other way around: they didn’t want to retire after having gotten involved in the 2000 election. They were right to intervene — the Florida Supremes didn’t really give them a choice — but the justices most likely to retire (O’Connor and Rehnquist) are both Republican appointees. The appearance would have been bad because the Democrats sufficiently, and hypocritically, demonized them for intervening in the election.