The great unspoken issue

    One of the most crucial issues in the ’12 presidential campaign is likely to be ignored. If history is any guide, the candidates won’t talk much about it and voters won’t care much about it. Inexplicable, but true.Few presidential decisions are more far-reaching and consequential than the choices made to fill vacancies on the U.S. Supreme Court. Presidents have the power to shape the institution that shapes the laws that govern this country for generations. If Al Gore had beaten George W. Bush in 2000, the high court in recent years would likely have been less friendly to corporations. Heck, if Republican presidents hadn’t dominated the nomination process in the late 20th century, Bush might not have beaten Gore in the ruling that ended the ’00 election.And yet the composition of the high court has rarely been a dominant issue in presidential campaigns.This is ironic, especially now, given the fact that the Roberts Court has essentially decided to inject itself into the politics of 2012. It has scheduled a ruling on the health reform law, a ruling on the Arizona “papers please” immigration law, and a ruling on the Texas congressional district map plan that’s currently designed to protect minority voters. Granted, the court will weigh in with weighty pronouncements about the proper demarcation of federal and state power (especially on health reform and immigration), but the gist of the rulings will quickly become grist for the stump, where candidates will be compelled to react in real time.Even so, we’re not likely to hear any candidate say anything like this: “If you elect me, I will appoint judges who will ensure a better Supreme Court.”Granted, activists on the left and right frequently highlight the importance of the court. Abortion rights groups always insist that the future of Roe v. Wade hinges on the election of a Democratic president, and I can recall conservative leader William Kristol telling me in November 1999 that high court deserved to be the big issue in 2000; as he put it (according to my notes), “There are so many big things facing the court in the next few years – abortion rights, school choice, affirmative action, church-state issues. The biggest impact the next president will have on domestic policy will be in the realm of court appointments.”Yet with the most notable exception of Richard Nixon, who often campaigned in 1968 against the Warren Court, candidates usually steer clear of such politicking. Gore tried it a few times in late ’99 (“If you want a Supreme Court majority…that is in keeping with the philosophy of Jerry Falwell and Pat Robertson, that is what is at stake in this election”), but not much thereafter. We’ve rarely heard that kind of talk in all the years since.So how come the court gets such a free ride as a campaign issue? Why is it unlikely that the future composition of the court will barely rate a mention, even though three of its members will soon be in their late 70s? Three interrelated reasons:1. Voters instinctively view the court as an independent entity that’s disconnected from the partisan fray (even though it isn’t). They don’t like to see it dragged into the crossfire of political combat. 2. Voters are focused on the here and now, not on what may or may not happen in the future. So when candidates talk about the future composition of the court, it sounds way too remote. Voters aren’t interested in gaming out the future implications of an election.3. And those future implications aren’t really knowable, anyway. That’s because a president’s appointees don’t always behave as expected. The abortion issue is a classic example. Harry Blackmun, the judge who wrote the Roe ruling, was a Republican appointee. Three longtime Roe defenders – Anthony Kennedy, Sandra Day O’Connor, and David Souter – were Republican appointees. Earl Warren, who headed the most liberal court of the past half century, was a Republican appointee. Bryon White, a conservative stalwart of the late 20th century, was a Democratic appointee.Still, it’s hard to overlook the fact that the current Supreme Court is easily the most conservative in decades – and that its most pivotal members are Reagan-Bush appointees. This correlation is hardly accidental; it strains credulity to believe, for example, that Al Gore appointees would have unleashed corporate spending in politics, as the Roberts Court did in Citizens United.But the real test may come next year. If a landmark ruling on Obama’s health reform law detonates in the midst of the campaign, voters may well be compelled to rethink their traditional mindset. Put simply, to ignore the political dimension of the court is to ignore reality.

    And seriously, what’s more important: the campaign trivia of the moment – or taking the long view? Christine O’Donnell’s inadvertently comical endorsement of Mitt Romney (“He’s been consistent since he changed his mind”) – or the age and health of Ruth Bader Ginsburg?

    ——-Follow me on Twitter, @dickpolman1

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