Now we shouldn't say: When Americans vote for president, the federal courts are on the ballot, too. Yet very few voters, especially among those in the decisive middle, make up their minds with this in mind.
Think about it: The issues voters care about most this election year — immigration, reproductive rights, the economy and government regulation, gun control — are increasingly being decided in federal courts that Donald Trump has reshaped, including the Supreme Court, Due to dysfunction in Congress.
Opinion columnist
Jackie Calmes
Jackie Calmes takes a critical look at the national political landscape. She has decades of experience covering the White House and Congress.
Add to those perennial issues a new 2024 case: Trump's impeachment. Here, the impact of the judiciary could not be clearer. The filibuster — by the Supreme Court, where three Trump appointees sit, and in a Florida district court where a Trump-appointed judge presides — ensured that voters would not get criminal convictions before Election Day in the former president's efforts to overturn his 2020 defeat. And retrieve top secret documents.
We've learned the hard way: It matters whether Trump or President Biden chooses federal judges, just as it matters which party controls the Senate and has the power to confirm them.
Only since the 2022 Dobbs decision that repealed a half-century of abortion rights have Democrats begun to wise up to what Republicans have long known: Through executive and legislative power, your party can put its stamp on the third, unelected branch of government, the judiciary. . It is possible that this legacy will last longer than politicians. As Trump's running mate, Sen. Lindsey Graham of South Carolina, recently said of 2024, “one of the big issues on the ballot is trying to have a more conservative judiciary.”
Democrats, beware! Flip the script – and rally your voters around this issue.
Here are the risks: If Biden wins, he could continue the unfinished business of trying to offset the right-wing tilt (and white male dominance) that Trump has given to the courts by appointing more judges to a single term than any president other than Jimmy. Carter. Biden's efforts could be slowed if, as widely expected, Republicans take control of the Senate and halt the confirmation process.
But slow movement in the Senate on Biden appointees is better than a return, if Trump wins, to a fast track for the far right. Like Trump appointee Eileen Cannon, a junior Florida district judge (who bungled) the handling of the former president's trial involving classified materials. Or Matthew Kasmarek, the Texas district judge and culture warrior who last year sought to ban mifepristone, one of two drugs used in medical abortions that account for more than half of all abortions in the country. He filled his opinion with the language of anti-abortion activists, writing at one point that mifepristone, used up to just 10 weeks of pregnancy, “ultimately starves the unborn human to death.” The Supreme Court is scheduled to hear this case on March 26.
Another consideration for voters: While a reelected Biden likely won't be able to change the imbalance on the Supreme Court between six hardline conservatives and three liberals, he could keep the matter from getting worse.
None of the judges are expected to retire soon. However, the older (and more conservative) two, Clarence Thomas and Samuel Alito Jr., are in their mid-70s and could choose to step down if Trump wins, as court observers expect, so he can replace them with people like them. Legal professionals who are young enough to work for decades. (In normal times, we might actually get rid of Thomas through impeachment or resignation, given his well-documented ethical lapses and refusal to recuse himself from the January 6 cases despite his wife's complicity in efforts to overturn Biden's election. But these are not normal times.)
When Trump reluctantly left the White House, his judicial picks made up a third of the Supreme Court, nearly a third of the 13 appeals courts and more than a quarter of the 94 district courts. Because relative youth and Republican bona fides were the criteria for the job set by Trump and the trio he outsourced to the court — Senate Republican leader Mitch McConnell, then-White House counsel Don McGahn and former Federalist Society leader Leonard Leo — were Trump's judges. He is likely to be prominent on the federal bench after midcentury.
“Beating Trump looks impossible” was the headline last fall in an analysis of Biden’s judicial appointments by Russell Wheeler of the Brookings Institution, which tracks the courts. However, in an update in January, Wheeler said that while Biden probably would not surpass Trump's single-term judge total on appeals courts, he could match him for district court judges.
If Biden fails, it will not be for lack of trying. More than his Democratic predecessors Bill Clinton and Barack Obama, Trump has made judicial nominations a priority in the wake of the Trump team's deliberate shuffling of the courts. Better late than never?
After all, Biden has been a leader on the Senate Judiciary Committee for years; He knows his stuff. (Except we have him to thank for installing Thomas three decades ago.) Senate Democrats helped, with a one-vote majority. Together, they set a record for confirmations in a president's first year in office, though the pace was only “moderate,” Wheeler said, by the end of last year.
One problem is that Biden did not inherit as many vacancies as Trump did. McConnell had thwarted the confirmation of several nominees in Obama's final year — most famously Merrick Garland to the Supreme Court — so Trump was able to take the seats. Then in Trump's final year, McConnell nearly made good on his pledge “not to leave a vacancy behind him.” He even bumped up 14 nominees for confirmation after Trump lost the 2020 election, marking the first time the defeated president's nominees have been confirmed since 1897.
Now Democrats must emulate McConnell's enthusiasm. There are 57 judicial positions open, and Biden has selected nominees for only a third of them. On the one hand, he and Senate leaders seem very deferential to Republicans about who they nominate for vacancies in the red state. Just fill every seat before Election Day, lest Trump and the Republican-run Senate once again inherit a glut of seats.
If the Republic is lucky, voters will give Biden four more years to keep it going. Which is more likely if enough of them remember: the bench is on the ballot, too.
@jackiekcalmes
