WASHINGTON — The next president will tip the courts, one way or another.
Supreme Court openings are all but guaranteed, and that's just the start: 44 trial and appellate federal judicial vacancies already await filling. There will be more.
Consider this: President Bush has placed 316 judges on the bench during his two terms. One out of three federal judges now owes a lifetime-tenured job to the current president. Whoever replaces Bush will be likewise recasting courthouses, top to bottom.
"The proper role of the judiciary has become one of the defining issues of this presidential election," Republican presidential candidate John McCain said in May. "It will fall to the next president to nominate hundreds — hundreds — of qualified men and women to the federal courts, and the choices we make will reach far, far into the future."
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In truth, many polls suggest, relatively few voters consider the federal judiciary a defining issue. But those who do care, care a lot.
On Monday, timed to the opening of the Supreme Court's new term, the conservative Judicial Confirmation Network will begin running on ads Fox News Channel attacking Democratic nominee Barack Obama.
"It's kind of a sleeper issue in this election, with so much else going on," said Wendy Long, counsel for the Judicial Confirmation Network, but "our internal polls show people do care about the issue."
McCain used his May speech at Wake Forest University to drive home what his campaign terms his own "vision for the courts." This includes homage to a "strict constructionist philosophy" and a commitment to appoint Supreme Court justices like John Roberts and Samuel Alito.
Obama, a former part-time University of Chicago law lecturer, takes a different direction. While praising their legal qualifications, Obama voted against both Roberts and Alito. In doing so, the Harvard Law School graduate shed light on his own judicial inclinations.
"Legal process alone will not lead you to a rule of decision," Obama declared during debate over the Roberts nomination. "In those difficult cases, the critical ingredient is supplied by what is in the judge's heart."
Tellingly, Obama cited affirmative action, reproductive rights and the rights of the disabled as among those legal questions requiring judges to posses "empathy." It is now commonly assumed in Washington legal circles that Obama is bound to appoint a woman and/or a person of color to high court if given a chance.
Either candidate is bound to put his standards into practice. By next September, six of the nine Supreme Court justices will be at least 70 years old. Justice John Paul Stevens turns 89 in April.
"The Supreme Court is on the ballot this fall, and the stakes could not be higher for Americans," said People for the American Way President Kathryn Kolbert in a statement released Wednesday.
In some ways, the advocacy groups are out ahead of the public at large.
The Supreme Court and the federal judiciary didn't even crack the top 20 issues considered important to voters, a late-September ABC/Washington Post survey found.
A recent Los Angeles Times/Bloomberg survey asked voters why they had negative impressions of either McCain or Obama. Only 1 percent cited the courts. This was less than the number who claimed that Obama was "not Christian" or that McCain was "too old (or) could die in office."
Moreover, no president can unilaterally impose judges. The Senate, too, has a say. Consequently, stark campaign declarations tend to soften amid the real-world confirmation requirements on Capitol Hill.
Every one of the 48 U.S. District Court judges confirmed during the current Congress has swept through the Senate by a unanimous or voice vote. Appellate vacancies tend to be more controversial. They shape lasting constitutional interpretations and they cover multiple states. Even so, eight of the 10 federal appellate judges confirmed during this Congress secured a unanimous or voice vote.
Obama is on the Senate Judiciary Committee and McCain isn't. But when controversy over judicial nominations threatened to cause a Capitol Hill showdown, it was McCain who played the far more active peacekeeping role.
Frustrated over Democratic impediments to GOP judicial nominees, Senate Republicans in the spring of 2005 contemplated changing the rules to make it easier for the majority to end filibusters. McCain was part of a bipartisan "Gang of 14" senators who opposed this so-called nuclear option, flying in the face of his party's most adamant conservatives.
"I think it's a very dangerous course to embark on," McCain said at the time.
McCain also had voted for both of President Clinton's Supreme Court nominees, Stephen Breyer and Ruth Bader Ginsburg.
However, McCain is far more likely than Obama to flog the Supreme Court with immoderate rhetoric for decisions he doesn't like.
McCain, in June, denounced the court for "an assault" on law enforcement after the justices struck down Louisiana's law permitting execution of child rapists. He called "outrageous" a 2005 decision allowing governments to seize private property for economic development. He called a 2008 ruling extending constitutional habeas corpus rights to Guantanamo Bay detainees "one of the worst decisions in the history of this country."
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