By now it should go without saying: When Americans vote for a president, federal courts are also on the ballot. However, very few voters, especially among those in the decisive middle, make their decision. With that in mind.
Think about it: the issues that voters do The issues that matter most to us this election year — immigration, reproductive rights, the economy and government regulation, gun control — are increasingly being decided in federal courts reshaped by Donald Trump, including the Supreme Court, because of the crippling dysfunction in the Congress.
opinion columnist
Jackie Calmes
Jackie Calmes brings a critical look to the national political scene. He has decades of experience covering the White House and Congress.
Added to these perennial issues is the new one of 2024: Trump's legal responsibility. In this case, the impact of the judiciary could not be clearer. The delay — by the Supreme Court, where three Trump appointees sit, and in the Florida district court, where a Trump-appointed judge presides — has all but ensured that voters will not receive criminal verdicts. before Election Day about the former president's efforts to overturn his 2020 loss and hide 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 from 2022 dobbs decision After overturning a half-century of abortion rights, Democrats have begun to realize what Republicans have long known: With executive and legislative power, their party can put its stamp on the third unelected branch of government, the judicial, and that legacy can endure for a long time. the politicians. As Trump's lackey Senator Lindsey Graham of South Carolina recently said. saying 2024, “One of the big issues on the ballot is trying to have a more conservative judiciary.”
Be warned, Democrats. Flip the script: get moving his voters around this issue.
Here's what's at stake: If Biden wins, he can continue the unfinished work of trying to offset the right-wing tilt (and white male dominance) that Trump gave to the courts by appointing more judges in a single term than any president. apart from jimmy carter. Biden's effort could well be slowed if, as widely expected, Republicans take control of the Senate and hinder confirmation efforts.
But it is better to take slow action in the Senate on Biden's appointees than to return, if Trump wins, to a fast track for the far right. Like freshman Florida District Judge Aileen Cannon, a Trump appointee. (bad driving The former president's trial involves classified material. Or Matthew Kacsmaryk, the Texas district judge. and culture warrior who last year attempted to ban mifepristone, one of two drugs used for medication abortions that account for more than half of all abortions in the country. He filled his opinion with the jargon of anti-abortion activists, writing at one point that mifepristone, used only up to 10 weeks of pregnancy, “ultimately starves the unborn human to death.” . The Supreme Court will hear that case on March 26.
Another consideration for voters: While a re-elected Biden probably couldn't alter the Supreme Court imbalance between six arch-conservatives and three liberals, he could prevent it from getting even worse.
None of the judges are expected to retire anytime soon. However, the two oldest (and most conservative), Clarence Thomas and Samuel A. Alito Jr., are in their 70s and could choose to step aside if Trump wins, court observers speculate, so they can be replaced with similar people. minded jurists young enough to serve for decades. (In normal times, we may have already gotten rid of Thomas through impeachment or resignation, given his well-documented ethical errors and his refusal to recuse of 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 proven Republican bona fides were the job criteria set by Trump and the trio to whom he outsourced his court preparation (Senate Republican leader Mitch McConnell, then-White House counsel Don McGahn , and former Federalist Society leader Leonard Leo), Trump's judges. will probably be prominent at the federal bank long after mid-century.
“Overtaking Trump Seems Impossible” was the headline last fall an analysis of Biden's judicial appointments by Russell Wheeler of the Brookings Institution, which tracks the courts. in a update However, in January, Wheeler said that while Biden probably won't surpass Trump's one-term total of judges on the appeals courts, he could match him in the number of district court judges.
If Biden falls short, it won't be for lack of trying. More than his Democratic predecessors Bill Clinton and Barack Obama, he has made judicial nominations a priority following Team Trump's determined reshuffling of the courts. Better late than never?
After all, Biden was a leader of the Senate Judiciary Committee for years; he knows what he does. (Except we have Thomas to thank for confirming it three decades ago.) And Senate Democrats, with their one-vote majority, have helped. Together, they set a record for confirmations in a president's first year in office, although the pace was only “so-so,” as Wheeler said late last year.
One problem is that Biden did not inherit as many vacancies as Trump. McConnell had thwarted the confirmation of many nominees in Obama's final year (most famously Merrick Garland to the Supreme Court), so Trump was able to fill the seats. Then, in Trump's final year, McConnell nearly kept his promise to “leave no vacancy behind”; it even led 14 nominees to confirmation after Trump lost the 2020 election, The first time a defeated president's candidates were confirmed since 1897..
Now Democrats must copy McConnell's zeal. Fifty-seven judiciaries are open, and Biden has chosen candidates for only a third of them. On the one hand, he and Senate leaders are being too deferential to Republicans about who to nominate for vacancies in red states. Just fill them all before Election Day, lest Trump and a Republican-led Senate once again inherit a bonanza of seats.
If the republic is lucky, voters will give Biden another four years to keep it up. And that's more likely if enough of them remember: the bank is on the ballot, too.
