The Volokh Conspiracy

I wouldn’t take this prediction to the bank if I were a betting man. But, like co-blogger David Bernstein, I give Obama a slight edge, perhaps a 60-65 percent chance of victory. In the contest between national polls favoring Romney and battleground state polls favoring Obama, I give slightly greater credence to the latter. My main reason for doing so is that their results have been more consistently favorable to Obama than the national polls have been for Romney. In addition, there is a nontrivial chance that Obama could win the electoral college while narrowly losing the popular vote. I also give some weight to the majority view among mainstream pollsters, which seems to be that Obama is more likely to win than not. On technical questions like this, I try to give some deference to expert opinion, unless there is strong evidence of bias or ulterior motives. And I am skeptical of claims by some conservatives that the professional pollsters are in the tank for Obama.

On the other hand, it’s certainly possible that the pollsters’ likely voter models are just slightly skewed in Obama’s favor. In a very close election like this one, even a 1-2 point skew could lead to an incorrect prediction as to the outcome. Dan McLaughlin of Red State makes an interesting case for that view in a series of posts (see here and here). Notice that McLaughlin is not claiming that Nate Silver and other analysts who predict an Obama victory are a bunch of idiots whose models are radically deficient, or a bunch of shills for the Democrats. Rather, he seems to be saying that Silver has a pretty good model that is slightly off – enough to make a wrong prediction in a close election. Silver perhaps has a similar take on McLaughlin’s prediction.

Turning to the other races, I predict that the Republicans will retain control of the House with a majority fairly close to the one they have now. My guess is that they will probably fall just short of taking control of the Senate, with perhaps a total of 48-49 seats. But there are enough close races that I could easily be wrong on this one. The more you believe that state polls are understating Republican turnout, the more you should expect that the GOP might take more close Senate races than most pollsters expect.

I also expect that Virginia Question 1 will pass by a comfortable margin, as has every other post-Kelo property rights reform referendum, except for a few that were tied to unpopular measures such as abolishing rent control.

With the exception of the predictions on the House and Question 1, I am far from confident about any of these calls. The election is so close that both the popular vote margin and that in key battleground states is within the margin of error of most polls. The same goes for a number of the close Senate races. That magnifies the potential impact of even small methodological errors by pollsters.

UPDATE: Some commenters correctly point out that the RCP average of national polls has Obama and Romney effectively tied (an 0.1 point differential). That strengthens the case for Obama. The most recent two polls (one by Rassmussen and one by the Washington Post and ABC) include one that is tied (Rassmussen) and one that gives Romney a 1 point lead (WP-ABC). But for reasons Ted Frank outlines, a tie does give an implicit edge to a challenger because undecideds are more likely to oppose the incumbent, despite recent efforts to overturn that conventional wisdom. Given the most recent national polls, it may be that 60-65 for Obama should really be a little higher, such as 65-70. But I still see the national polls as very slightly favoring Romney, though certainly less so than a week or two ago.

In this much-discussed recent article, Sasha Issenberg argues that Democrats are much better than Republicans at “microtargeting”: the art and science of tailoring messages to the proclivities of individual voters and contacting them directly by phone, mail, or sending a volunteer. Issenberg’s account is interesting and entertaining. And it’s certainly possible that the Democrats are better at this than the GOP. So far, however, it doesn’t seem to have had much effect. The Democratic victory in 2008 was roughly in line with what might be expected, given the political and economic situation. Microtargeting didn’t keep the Democrats from getting clobbered in 2010, when the economy and some other factors worked against them. If Obama wins by a narrow margin this year, that result, too, would be in line with historical expectations. So far, at least, it seems like microtargeting is no more than a minor Democratic advantage.

Living in the swing state of Virginia these past few months, my wife and I have had more exposure than we might like to both Democratic and GOP microtargeting. Neither strikes us as especially brilliant, though the GOP seems worse. Perhaps because we are on various Federalist Society and libertarian mailing lists, we have been deluged with mail from the Romney campaign and allied organizations. Some of it is at least reasonably calculated to appeal to us (e.g. – promising to cut federal spending). On the other hand, a lot of it consists of attacks on Obama for failing to impose trade sanctions on China and promising to punish the Chinese if Romney gets elected. It’s hard to hit on a message more likely to alienate two pro-free trade libertarians. If we believed that Romney really plans to start a trade war with China, that would be a big strike against him in our minds. My guess, however, is that his promises will likely go the way of the very similar protectionist prattle that Obama put out in 2008.

The Romney campaign and its allies have also deluged us with robo-calls. Since we generally hang up on them, I can’t really assess their content. However, the very fact of making dozens of robo-calls is likely to annoy voters far more than it attracts them – even if the content were truly brilliant, which is rarely the case.

We have also been visited by at least one Romney volunteer, with whom I had an interesting conversation. When I saw him come to the door, I immediately said that I might end up voting for Romney as the lesser of two evils, but I have no real enthusiasm for him. “Why not,” he asked? I explained it was because of Romneycare and a litany of other flaws in Romney’s record. To my great surprise, the volunteer readily admitted that he wasn’t enthusiastic about Romney either, and for many of the same reasons. In general, it does not make a good impression if a campaign’s volunteers admit they don’t really like the candidate they’re supposed to be promoting. In this case, however, the lukewarm volunteer made a far better impression on me than a gung-ho enthusiast would have. Given his record, no one could convince me to actually like Romney. I might, however, be persuaded that he’s a lesser evil. If the Romney campaign deliberately sent me this person, it was a (very minor) stroke of genius. But I suspect it’s far more likely that they simply had no idea that that this volunteer didn’t really care for the candidate.

Still, the GOP did correctly identify us as likely supporters, and correctly focused on economic issues in its messages to us. My wife has always been convinced that Romney is the lesser of the two realistically electable evils. I am far less certain, but am just barely inclined in the same direction. Yet if the Romney campaign wanted to shore up my wavering support, they didn’t choose the right strategy for doing so.

We have also gotten some Obama mailings and flyers, along with a few robo-calls. All of them seem pretty generic, and many emphasize issues where we and Obama are clearly at odds. To the extent they had any impact on us at all, it was to remind us of the many things we don’t like about the Obama administration. We also got a visit from an Obama volunteer. When my wife told him she was planning to vote for Romney (I wasn’t home at the time), he immediately said good bye and left.

I suspect that the Obama campaign did not actually target us as carefully as the Romney people did – perhaps because we either didn’t show up in their databases, or showed up as people they couldn’t hope to win over. As a result, they missed the fact that I was actually a potential swing voter, even if my wife wasn’t. Still, they at least wasted fewer resources on us than the Romney people did, and said fewer things that were likely to actively annoy us. And I certainly appreciate their relative restraint on the robo-call front.

It would be easy to make fun of the campaigns and their often inept outreach to us. But it’s dangerous to generalize too much from a single case. The real lesson, if there is one, is not that the campaigns are stupid but that the effective micro-targeting is very difficult when you’re trying to process and act on information about hundreds of thousands of voters in a relatively short time. Had they taken the time to do their homework on us, both campaigns could have made much more effective appeals. Unlike with most voters, in our case there’s actually a lot of publicly available information about our political views. But the campaigns simply don’t have the resources to carefully study every voter, even in a closely contested swing state. For that reason, micro-targeting is likely to remain an inexact science at best. And I remain skeptical of claims that it is going to be a major decisive factor in winning national elections.

UPDATE: I think microtargeting could potentially be more effective in small-scale, local campaigns, where there are far fewer voters to study. On the other hand, few if any local campaigns have the microtargeting resources available to national campaigns.

The North Dakota Senate election could be close — close enough to trigger a recount. Given that control of the Senate could be at stake, the party lawyers will no doubt descend ready for battle. But in ND there’s a twist: No voter registration. As Sasha Issenberg explains in Slate, North Dakota is the only state without voter registration rolls. Those who show up to vote without the required identification can sign an affidavit and have their vote counted, leaving no way to challenge potentially ineligible voters who cast ballots.

Given the extreme closeness of both the national and battleground state polls, one would think that serious political commentators would avoid making bold predictions about the outcome of the presidential race. After all, an overconfident pundit who turns out to be wrong will have egg on their face in just a few days. This is especially true in a situation where state polls and national polls seem to be in tension with each other.

Yet one of the striking things about recent election commentary is that most conservative Republicans are confidently predicting a Romney victory, while liberal Democrats seem equally convinced that Obama is sure to win. Karl Rove, for example, is predicting a clear Romney win. Liberals such as Joan Walsh and Mark Mellman are just as confident that Romney is doomed.

What explains such seemingly irrational overconfidence? One possibility is that these people are simply engaging in biased wishful thinking. Like sports fans, committed political partisans tend to overvalue evidence that reflects favorably on their preferred “team” and ignore or downplay anything that cuts the other way. But another factor may be the desire to create a “bandwagon effect” by convincing as many people as possible that their candidate will win. As I explained here, a small number of swing voters will tend to gravitate to the side that looks like it’s going to win. In a close election, they could make a decisive difference. If the Roves and Mellmans of the world can persuade the public that their guy has the momentum and is likely to win, it could turn out to be a self-fulfilling prophecy.

A recent Gallup poll shows that 54 percent of the public believe that Obama will win, compared to only 34 percent who predict that Romney will prevail. That certainly does not prove that Obama really will win. It’s possible that Romney will amass enough support to offset the bandwagon effect. But the public’s perception that Obama is the likely winner does give him an edge.

Lots of fun; take it here. Here’s Slate‘s blurb:

Today, Slate challenges its readers to demonstrate their grasp of presidential election history. Check out the 12 electoral maps randomly generated from presidential elections since 1860. States are shaded according to the party of the candidate who won them: red for Republicans, blue for Democrats, and green for third parties or even splits. For each map, pick the proper election out of four choices before the timer runs out. Every correct answer is worth 45 electoral votes. Collect 270 to come out on top.

I got 11 out of 12, which gave me a “Ronald Reagan” (apparently since my 45 x 11 = 495 wasn’t far from Reagan’s 489 electoral votes in 1980).

The answer is pretty clearly “no,” given the First Amendment, and Emineth v. Jaeger (D.N.D. Oct. 29, 2012) has struck down such a North Dakota statute:

Any person asking, soliciting, or in any manner trying to induce or persuade, any voter on an election day to vote or refrain from voting for any candidate or the candidates or ticket of any political party or organization, or any measure submitted to the people, is guilty of an infraction. The display upon motor vehicles of adhesive signs which are not readily removable and which promote the candidacy of any individual, any political party, or a vote upon any measure, and political advertisements promoting the candidacy of any individual, political party, or a vote upon any measure which are displayed on fixed permanent billboards, may not, however, be deemed a violation of this section.

The statute — which by its terms applies to flyers, yard sign, speeches, newspaper editorials, and a vast range of other speech — has apparently been largely or entirely unenforced, but the North Dakota Solicitor General nonetheless defended the law, arguing it was (1) content-neutral, (2) served the interests in preventing “election day intimidation tactics,” preventing “dissemination of false or misleading information on election day” (when there’s little time to respond), and “establishing a definite close to electioneering” so that “all voters have the same information to make their decisions, whether they vote at 9 a.m. or 4 p.m.,” (3) and was “narrowly tailored” to those interests.

Not so, the court correctly held. The law is content-based, “since it singles out election-related expression for prohibition.” (See, e.g., Burson v. Freeman (1992), which made clear that such laws are content-based, though a plurality concluded that the particular content-based law passed strict scrutiny because it was limited to speech very near a polling place.) And the law cannot pass the strict scrutiny required for such laws, for the same reasons that a ban on newspaper endorsements on election day was held unconstitutional in Mills v. Alabama (1966):

“[The] argument [that a ban on election day electioneering is justified by the desire to prevent false accusations at a time when it's too late to answer them], even if it were relevant to the constitutionality of the law, has a fatal flaw. The state statute leaves people free to hurl their campaign charges up to the last minute of the day before election. The law ... then goes on to make it a crime to answer those ‘last-minute’ charges on election day, the only time they can be effectively answered. Because the law prevents any adequate reply to these charges, it is wholly ineffective in protecting the electorate ‘from confusive last-minute charges and countercharges.’”

“Since Alabama’s prohibition on editorials did not survive constitutional scrutiny, North Dakota’s far broader ban on electioneering activities cannot survive the more intense ‘strict scrutiny’ required in this challenge.”

Continuing the series of posts examining how libertarian-leaning folks should vote (assuming they think it’s worth voting at all), Reason has published essays on the libertarian case for Obama (Mike Godwin), Romney (Robert Poole) and Gary Johnson (Nick Gillespie). Some may also be interested in this post by law professor Brad Smith explaining why he will vote enthusiastically for Romney, and this essay by Shikha Dalmia arguing Romney is the most protectionist GOP candidate in ages. Then again, perhaps Katherine Mangu-Ward is correct, and libertarians shouldn’t vote at all.

UPDATE: Reason board member Manny Klausner e-mails to note that he is enthusiastically voting for Gary Johnson, but also encouraging libertarians who live in battleground states to vote for Romney if the election looks like it will be close. He writes:

It seems to me that the WORST possible move for a libertarian would be to vote for a statist candidate who may win the election — and doesn’t need your vote to win. In my view, this implicates the voter in the bad policies pursued by the candidate once they take office. To me, the only exception to this is a close election where your vote arguably could be decisive, so that voting for the lesser of the evils might well be appropriate.

Moreover, on the issue of drug policy — a high priority for libertarians — I’d point out that a libertarian in a non-battleground state emphatically should not vote for Romney, who shows no sign of doing anything other than supporting the counterproductive war on drugs. Voting for the Gary Johnson/Jim Gray ticket is a commendable way to express dissatisfaction with the War on Drugs — a “cure” that is far worse than the disease.

I generally agree with this sentiment, but would also note that the Obama Administration has pursued the drug war most vigorously while the Republican VP nominee has expressed some sympathy for allowing states to decriminalize marijuana for medical purposes, if not more broadly. In all likelihood, however, neither Presidential candidate is likely to alter the drug war’s current course.

The Cleveland Plain Dealer reports that the outcome of the Presidential election in Ohio may not be known until mid-November. This is because state election officials will not count provisional ballots until at least ten days after the election. Given the large number of provisional ballots in Ohio — a number that could increase due the large number of absentee ballots expected to be cast this year — such ballots may make the difference, and legal wrangling on which ballots to count could drag things out even more. This is why the Cincinnati Enquirer called this a potential “nightmare voting scenario.”

Recent polling results present the possibility that Mitt Romney could win the popular vote but lose the electoral vote. Would this matter? It shouldn’t. We’ve seen this before, and it is not at all unusual for a President to be elected with less than 50 percent of the popular vote, as some voters support third-party candidates. Should President Obama be re-elected, there’s no question some GOP partisans will complain and right-leaning pundits will dredge up old quotes from Democratic politicians calling for replacing the Electoral College with a national popular vote system. But Barack Obama would still be the president, and he would be no less “legitimate” than if he had won the popular vote as well.

Does the Electoral College system allow for the election of a president who does not enjoy majority (or even plurality) support? Yes, but it would be a mistake to assume that a candidate’s failure to get a majority of the popular vote on election day means that the candidate does not enjoy majority support. One consequence of the Electoral College system is a distortion of popular vote totals, particularly in electoral strongholds. So the “winner” of more popular votes cast under the Electoral College system would not necessarily have won under a national popular vote system.

The electoral college encourages attention on winning contested states, not maximizing turnout nationwide. Each candidate focuses turnout efforts in states with closely divided populations, devoting fewer resources to “safe” states. This means the Romney campaign has no incentive to trawl for every vote in Texas, and the Obama campaign can take it easy in states like New York. (Under a national popular vote system, however, the incentives would be quite different, as every vote would count.) Because some of these “safe” states have large populations and are not particularly politically competitive, even down ballot, we have no assurance that the final vote totals in such states reflect actual voter sentiment. Just think about it: someone who cares about the outcome of the Presidential race is far more likely to vote if they live in Ohio than if they live in Texas or the District of Columbia. It also means that there is less attention to provisional ballots, the need for recounts, etc. in less competitive jurisdictions. Under a national popular vote system, this would not be the case.

The bottom line is that popular vote totals are not independent of the rules under which they are cast. Dividing up the vote into states, each of which awards its electoral votes separately, alters the popular vote total. So if a candidate wins a majority of electoral votes while losing the national popular vote, this does not mean this candidate would have lost the election under a national popular vote system, and it does not make the prevailing candidate any less “legitimate.”

Rick Hasen writes in Slate how Bush v. Gore‘s equal protection holding could benefit President Obama’s reelection effort, especially in Ohio.

For years, voting rights advocates have tried to make lemonade from lemons, arguing that the Equal Protection holding of Bush v. Gore should apply more broadly to require equality and uniformity in conducting elections. Until recently, these attempts have mostly met with failure, with courts reading the case’s holding narrowly. Some argued that at most the opinion would apply to require uniform rules for conducting election recounts. So poorly had Bush v. Gore fared in the lower courts—the Supreme Court has never cited it for any purpose since it was decided—that I declared Bush v. Gore’s untimely death in 2007.

But in the last few years the opinion has been resurrected by the United States Court of Appeals for the 6th Circuit, the federal appellate court that includes Ohio.  In one recent case, a federal judge required Ohio to restore the last weekend of early voting, relying in part on Bush v. Gore’s equal protection principles. The judge suggested that once Ohio had added the early voting days, it couldn’t take them away, or at least couldn’t take them away from everyone except military voters.

The 6th Circuit appeals court agreed. One of the appellate judges went so far as to say that the reason Ohio could not take the early voting days away is because the state had a bad history of long lines at the polls in 2004, and the early voting in 2008 seemed to clear up this problem. That was an incredibly broad extension of equal protection principles, well beyond even generous readings of the Bush v. Gore precedent.

For more on how Bush v. Gore has encouraged federal courts to policy election administration more agressively, see this article by Dan Tokaji and Owen Wolfe from the Case Western Reserve Law Review symposium on Baker v. Carr and this “Below the Line” podcast on the article with commentary from Hasen and Brad Smith.

In my post comparing Romney and Obama on libertarian grounds, I noted that libertarians might have good reason to support Obama if it is likely that a second term for him would result in substantial immigration reform, by which I mean letting more immigrants in the country and/or letting more of the ones already here stay. For reasons I explained here, immigration reform is an extremely important libertarian issue. Unfortunately, I saw no reason to believe that Obama would give this issue any more priority than he did in his first term, where he accomplished very little when he had a massive Democratic majority in Congress in 2009-10, and actually ramped up deportations beyond anything seen under George W. Bush.

Since I wrote my previous post, however, the White House has allowed the publication of an off-the-record interview where the president predicts that he will get an immigration reform bill passed if he wins a second term:

In the interview, Obama said he is confident his administration will pass immigration reform and achieve the equivalent of a grand bargain with Congress.

After failing to achieve comprehensive immigration reform in his first term, the president said Republicans, given the large Latino vote, will be invested in changing the system.

“I’m confident we’ll get done next year is immigration reform,” Obama said in the transcript of the interview posted online by the paper. “And since this is off the record, I will just be very blunt. Should I win a second term, a big reason I will win a second term is because the Republican nominee and the Republican Party have so alienated the fastest-growing demographic group in the country, the Latino community.”

“So I am fairly confident that they’re going to have a deep interest in getting that done,” he added.

This raises two important questions: Does Obama mean what he says, and is his political analysis correct? On the first point, it’s difficult to say. It’s not clear why Obama would not sacrifice immigration reform to other priorities in his second term, just as he did in his first. During the first term, after all, Obama needed to mobilize Latino voters to support his reelection. Yet he still didn’t prioritize immigration reform and still increased deportations. In a second term, that reelection incentive will be gone, though perhaps Obama will be motivated by a desire to help future Democratic candidates. On balance, I’m not sure whether I should believe Obama on this point or not.

Let’s assume, however, that the president means what he says, and that he really will make the issue a priority. Is he right that the GOP will cooperate with him out of a desire to attract Latino voters? Any immigration reform bill would have to get through a Republican-controlled House and a closely divided Senate. Obama can’t pass an immigration reform bill without substantial Republican support. Some prominent Republicans have indeed been saying that the party needs to change its stance on immigration in order to improve its electoral prospects. But that doesn’t necessarily mean they would pass an immigration reform bill at a time when a Democratic president and Senate could claim the lion’s share of the credit for it. That could help the Democrats with Latinos much more than the GOP.

And if the GOP really does believe they need to shift on immigration in order to increase their appeal to Latinos, why wouldn’t they be equally eager pass an immigration reform bill if Romney wins? Any Romney victory is likely to be a squeaker. Republican strategists will realize that he came very close to losing despite a relatively weak economy, and an incumbent with lots of chinks in his political armor. So Romney would be looking to increase his electoral appeal for 2016, as will a congressional GOP that would at most have very narrow majorities in both houses. A narrow Romney victory won’t necessarily lead the GOP to be any less eager to attract Latino voters than a narrow Obama victory. Obviously, there won’t be any immigration reform bill if Romney wins by a large margin and the GOP gets comfortable majorities in both houses. But that seems extremely unlikely to happen.

Obama assumes that a chastened GOP will be more willing to pass an immigration reform bill if Romney loses. Maybe. But the opposite scenario is at least equally plausible. A narrowly victorious Romney plotting his reelection strategy might be eager to court Latinos. That may be why he has attacked Obama for failing to pass immigration reform when he had the chance, and promised to “get it done” during his own first year. Romney has a long history of politically convenient flip-flops. So I wouldn’t put any great stock in this promise. But if Obama’s evaluation of the GOP’s political situation is correct, Romney might yet deliver on the promise – if not out of principle than out of political calculation.

If Romney tries to push an immigration reform bill through, Democrats might refuse to cooperate with him, just as Republicans might refuse to cooperate with Obama. But such refusal may be tougher for the Democrats to bring off because more of the Democratic base has a strong commitment to liberalizing immigration than the Republican base.

So if Obama is right about the GOP’s need to court Latinos, they may be as much or more likely to pass immigration reform under Romney. If he is wrong, then we may not get immigration reform regardless of who wins. If it’s Obama, a GOP that doesn’t sense any need to attract Latinos would simply refuse to support any Democratic reform bill.

On balance, therefore, a major immigration reform bill is at least equally likely under Romney as under Obama. Both candidates have promised to do it in their first year. It’s hard to tell which is more likely to keep the promise and successfully push a reform bill through Congress.

Reason has an interesting symposium on the presidential election in which various libertarian writers and political commentators give their presidential picks. In sharp contrast with Reason’s symposium during the 2008 election, there is almost no support for Obama. While many libertarians endorsed Obama four years ago, very few are willing to do so today. I myself thought that McCain was the lesser evil in 2008, and I believe that most of my 2008 concerns about Obama have been vindicated.

Not surprisingly, none of the Reason contributors are enthusiastic about Romney either. But many of those who compare the two major party candidates seem to consider Romney the lesser evil. I made a similar case in this post.

Many of the symposium participants say they will vote for Libertarian Party candidate Gary Johnson. I agree Johnson has many virtues. His positions on most issues are clearly superior to Romney and Obama’s from any libertarian perspective. The real question about Johnson’s candidacy – ignored by most of his Reason supporters – is whether the Libertarian Party is actually an effective vehicle for promoting libertarianism. Libertarians may be better off working within the two major parties and/or outside of party politics altogether. I have been skeptical about the LP’s effectiveness for a long time, and so far I haven’t seen much evidence that things have changed.

UPDATE: I wrote this post before noticing co-blogger Jonathan Adler’s post on the same subject. I am going to leave this post up, because it makes some points that Jonathan didn’t.

Back in 2008, Reason surveyed its contributors and fellow travelers about how they intended to vote, and quite a few said they would pull the switch for Barack Obama over libertarian candidate Bob Barr. Several said they weren’t voting and only a few mentioned John McCain. This year Reason has done it again, and the results are far more uniform. Neither President Obama nor Governor Romney is collecting any of Reason‘s votes. Those that vote (and many don’t) are all going with libertarian candidate Gary Johnson.

UPDATE: I should probably note that some libertarians believe that how one should vote depends on where one lives. Reason board member Manny Klausner, for instance, says he’s enthusiastically voting for Gary Johnson but that he’s also urging his friends who live in battleground states to support Romney if the election looks like it will be close.

After the first presidential debate and again after the debate between the VP candidates, I lamented the fact that the candidates and moderators had almost completely ignored judicial nominations. This is one of the areas where presidents have their biggest impact, and there are big differences between the two parties on a variety of major constitutional issues.

Unfortunately, the issue was ignored yet again in tonight’s debate. The only reference to courts that I could find in the transcript was a brief mention by Obama in discussing the Lily Ledbetter case; and he didn’t even say whether the Court had interpreted the law correctly or whether the case had any implications for the kinds of judges he plans to appoint. In any event, the Lily Ledbetter case is hardly even in the top 50 most important Supreme Court decisions of the last decade.

The final presidential debate is going to focus on foreign policy, so it isn’t likely that judges will come up. The courts have much less influence on foreign policy than on domestic issues. However, the moderator should at least ask the candidates about the Supreme Court’s War on Terror decisions and about the role of international law in interpreting the Constitution. These have been and will continue to be important legal issues that divide the two parties and their likely judicial nominees.

In this post, I complained about the total lack of discussion of judicial nominations in last week’s presidential debate. Tonight’s vice presidential debate was only slightly better. The only mention of the courts was a brief reference by Joe Biden while discussing the issue of abortion. In reality, as I explained here, there are many other issues at stake as well, including the future of constitutional protections for federalism, property rights, and freedom of speech.

In a recent post at National Review, conservative commentator Ed Whelan gave a more thorough explanation of the reasons why this election may be crucial for the future of the Court:

The topic of the Supreme Court has received very little attention in the presidential race. Neither Barack Obama nor Mitt Romney referred to it at all in his convention speech, nor did the matter come up in the first presidential debate....

Whatever the reasons for it, the silence certainly doesn’t correspond to the importance of the Supreme Court appointments that a re-elected President Obama or a newly elected President Romney may make in the next presidential term....

Control of the Supreme Court, perhaps for a generation, is very much up for grabs.

In general terms, the Court currently consists of four judicial liberals (Ginsburg, Breyer, Sotomayor, and Kagan), four judicial conservatives (Roberts, Scalia, Thomas, and Alito), and a ninth justice (Kennedy) who sometimes joins with the liberals and other times with the conservatives....

The nine justices fall roughly into two age cohorts. Four justices are in the older cohort (ages 74 to 79): Ginsburg (born in 1933), Scalia (1936), Kennedy (1936), and Breyer (1938). Five justices are in the younger cohort (ages 52 to 64): Thomas (1948), Alito (1950), Sotomayor (1954), Roberts (1955), and Kagan (1960)....

In other words, in the older cohort, there are two liberals, one conservative, and Kennedy, and in the younger cohort the conservatives have a three-to-two edge over the liberals.

It’s of course not a simple matter to accurately predict departures (voluntary or otherwise) from the Court. But there is a reasonable prospect that there will be one or two vacancies during the next presidential term, and it’s reasonable to expect that any such vacancies would come from the older age cohort.

As a hypothetical exercise, let’s assume that Ginsburg and Kennedy leave the Court during the next presidential term. If Obama is president and replaces them with liberals who are in their 50s, he will have established a liberal majority on the Court and he will also have created a four-to-three edge for liberals among the younger justices. By contrast, if a President Romney succeeds in replacing Ginsburg and Kennedy with relatively young conservatives, there will be a six-justice conservative majority on the Court, including a whopping five-to-two advantage in the younger age cohort, an advantage that might well ensure two decades of conservative dominance on the Court.

I think that Kennedy is more conservative than Whelan suggests. But that’s a minor point. The major one is that this election could have a huge impact on the future of the Court. Even if a reelected Obama gets to relace two liberal justices with younger liberals or Romney gets to replace two conservatives with younger conservatives, that will still have a profound impact. There’s a big difference between a justice who is likely to be around for only a few more years, and one who could well serve for thirty years or more. Given increasing life expectancies, a justice who is in his or her early fifties when appointed could easily serve until 2050 or even later.

I’m not saying this should be the only issue in the campaign or even the single most important. But it deserves a lot more attention than it has gotten so far.

UPDATE: A critique of this post claims that it is inconsistent for me to predict that a justice appointed by the next president could serve until 2050 (when he or she will be in their late 80s), but also that there is a good chance of one or more justices retiring in the next four years, even though they will be younger than that. I don’t think there is any inconsistency here. Life expectancy and the quality of medical care are likely to continue to improve, so the next generation of justices could easily live longer and remain healthy longer than the present one. Moreover, even if justices appointed by the next president serve “only” until 2040 (when they would be in their late 70s, like the oldest current justices), that’s still a very long tenure.