BOSTON—The American Constitution Society hosts a panel at the Boston Public Library titled "The Constitution at the Crossroads: 2004 and the Future of American Law." The first question after the formal presentation goes to the perennial election problem: "How do we get the issue of judges to matter to the American voter?" Why don't people care what kinds of judges the president puts on the bench?
I have read my share of overheated articles this month—the ones about the possibility of four Supreme Court vacancies over the next four years—and if I hear one more person characterize Justice Ruth Bader Ginsburg as teetering on death's door I will smack them. But the truth is that no one cares who appoints the next four justices, or three justices, or seven. We just don't. So, the lawyers are, quite reasonably, wondering why.
In a sense, it's an unfair question to ask at this convention, because the environmentalists, the stem cell folks, and the labor people are all in the same fix: This isn't the year to get any one issue before voters, who are having enough trouble deciding what to think about the war. But, if you can ignore the war for a moment, this should have been the year in which judicial appointments mattered a whole lot. For one thing, if you cared about gay marriage, or abortion, or the right to die, or civil liberties, as much as they say you do, almost nothing else matters but who's on the federal bench.
But more important, wasn't this election supposed to be a referendum on Bush v. Gore? Weren't the majority of American voters who felt that they'd been shafted by a partisan Supreme Court four years ago going to rise up this time and say "no" to ideological justices and their origami Constitution?
Apparently not, agrees the panel. People just don't track judicial appointments as an issue, and we just don't consider the power to appoint judges a truly important one. Professor Pam Karlan, of Stanford Law School, suggests that the remedy for this judicial apathy is that individuals whose lives have been affected by the courts need to speak out. She's right. We hear nothing about judges who refuse to grant abortion waivers. We hear nothing about judges who refuse to be bound by civil rights law. The fact that Bill Pryor, President Bush's recess appointee to the 11th Circuit Court of Appeals, just cast the deciding vote not to hear a case challenging the Florida law preventing gay couples from adopting went almost completely unnoticed in the national media.
Something magical happens when judges are confirmed to the bench. They become oracles, and we as a nation just stop caring about their activities. (Strangely, however, some liberal jurists need only burp at oral argument before the cries of "liberal activist" ring out.) Someone in the audience suggests that we need to do a better job of demystifying the Supreme Court. Someone else adds that it would be "nice to know who these guys and gals go fishing with on weekends." Big laugh.
Another audience member makes a really nice point: We tend to think of election cycles in manageable four-year units. If we don't like the job he's doing, we can boot him in a few short years. We forget that judicial terms are measured in decades. These bombs have extremely long fuses.
Professor Charles Ogletree of Harvard Law School points out that Republicans have simply done a better job than Democrats of articulating, committing to, and selling a coherent judicial philosophy. Democrats have used the presidency to create diversity on the bench but never to promote a unitary philosophy. Those chickens are now coming home to roost.
This is all a double-edged sword, of course. One of the very best things about the American electorate is its reverence for the judiciary. By refusing, for the most part, to be drawn into campaigns to smear, slander, and second-guess our judges, we have given them the space and independence to be fair. But by failing to care who gets a lifetime appointment to the federal bench, or to scrutinize what they do there, we have dropped the ball on the very same social issues we claim to care about most.
I keep thinking that one speaker at this convention needs to stand up at that podium tonight and say: "Ladies and Gentlemen. Abu Ghraib. Thank you. Goodnight." Because shouldn't this election ultimately be a referendum on the rule of law? Shouldn't the only issue before us be whether or not there will be legal constraints on executive power? Walter Dellinger, former acting solicitor general under Bill Clinton and star Slate contributor, puts this far more eloquently when he warns that if we don't cast our votes about Guantanamo, and Abu Ghraib and those torture memos, we will someday look back on this election as emblematic of a national moral failure.