The Supreme Court is the Least Discussed Campaign Issue

It is striking that so little attention has been given to the fact that the Supreme Court appointments likely to come during the next four years. In the second debate, both Presidential candidates expressed briefly that the winner would have the important responsibility of choosing new Supreme and Federal Court Judges. But neither has made this a premiere issue in the campaign.

In that debate, John Kerry made it clear his criteria for selecting judges (emphasis mine):

. . .in terms of civil rights, what kind of Justice Department you'll have, whether we'll enforce the law. Will we have equal opportunity? Will women's rights be protected? Will we have equal pay for women, which is going backwards? Will a woman's right to choose be protected? These are constitutional rights, and I want to make sure we have judges who interpret the Constitution of the United States according to the law.

The President laid out his criteria in this manner (emphasis mine):

I wouldn't pick a judge who said that the Pledge of Allegiance couldn't be said in a school because it had the words "under God" in it. I think that's an example of a judge allowing personal opinion to enter into the decision-making process as opposed to a strict interpretation of the Constitution. . . .And so, I would pick people that would be strict constructionists. We've got plenty of lawmakers in Washington, D.C. Legislators make law; judges interpret the Constitution.

It seems clear what type of judges will be chosen by the two candidates, and they have put it on the record. We will get what we vote for in this country. But sadly, the American people don't seem to know clearly what each candidate will do with their appointments.

The stakes are high because important cases effecting commerce, civil rights, morality in public life and abortion will certainly be coming before the Court in the next few decades. The composition of the court will be established in the next two years.

The current court is largely favorable to conservative causes, but it produces votes on some key issues which can go 5-4 for or against issues important to both sides of the aisle. One appointment will change that balance one way or the other: to say nothing of the mass of appointments that will be made in the lower courts.

The average age of all the current Justices is 71 years old. Two are in their 80's and two in their 70's.

Justice	Appointed by	Sworn in	Age
Stephen Breyer	Clinton	1994	66
Ruth Bader Ginsburg	Clinton	1993	71
Anthony M. Kennedy	Reagan	1988	68
Sandra Day O'Connor	Reagan	1981	74
William H. Rehnquist	Nixon	1972	80
Antonin Scalia	Reagan	1986	68
David H. Souter	Bush	1990	65
John Paul Stevens	Ford	1975	84
Clarence Thomas	Bush	1991	56

The Electoral Vote Predictor sums up the situation well:

"It is very likely than multiple vacancies will occur on the Court in the next four years. The court will undoubtedly have to rule on cases involving abortion, the Patriot Act, and other divisive issues. If you are an undecided voter, think carefully about which candidate would make better appointments to the Supreme Court. Furthermore, a president makes far more appointment[s] to the appellate courts than to the Supreme Court, and they hear far more cases per year. If you approve of the appointments Bush has made to the appellate courts, surely you want to give him the chance to make more. . . . The next president's appointments could shape the country for decades to come."

Well spoken. The President would do well to make this pitch strongly in the last few days of the campaign as a way to shore up his conservative base and shake loose some undecideds.