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Where Are the Judges?

On Tuesday, Ed Whelan noted that discussion of judicial nominations and the Supreme Court were conspicuously absent from the main speeches at the Democratic Convention. Thus far, however, there has been relatively little about judicial nominations at the Republican Convention either. Unless John McCain makes it a big issue tonight, it will have been an afterthought.

Justin (mail):
Judges only play with the base, and since the conservatives are going with the whole "Obama is anti-American" base stuff instead, judges come across as too wonky, too much about policy. It's part of a broader admission that their policies are unpopular, and thus should be hidden from view at all times.

To the degree judges are a shot to the base for liberals, Obama did do a whole ad campaign on abortion rights. But judges were never a big issue amongst the liberal base, who were always too nearsighted on the issue outside of Roe.
9.4.2008 9:53am
titus32:
It's part of a broader admission that their policies are unpopular, and thus should be hidden from view at all times.

That's some extreme spin (why not add "and that they are all evil baddies"?). My cynical two cents: voters both know and care very little about the Supreme Court. Why spend political resources on a non-issue?
9.4.2008 10:09am
Jonathan H. Adler (mail) (www):
Justin --

Obama did do an ad on abortion, but one that was quite misleading and focused on the substance (i.e. whether abortion will be illegal if McCain is elected), and basically ignores the role of judges in the process.

JHA
9.4.2008 10:09am
Eli Rabett (www):
It's in code. Didn't you send away for your secret decoder ring?
9.4.2008 10:12am
tarheel:
I expect that if Palin had been selected before the DNC, you would have heard something about judges as a gentle reminder to Hillary voters.
9.4.2008 10:23am
Justin (mail):
JHA, you don't have to mention the word judges to make a point.
9.4.2008 11:18am
Anderson (mail):
Focus on judges = focus on abortion.

McCain favors overruling Roe. That is not something the GOP is eager to remind swing voters about.

Frankly, I'm surprised the GOP is being that sensible.
9.4.2008 11:18am
Justin (mail):
And both Brendan and you appearered to completely miss the point of the ad, too. Interesting.
9.4.2008 11:19am
Norman Bates (mail):
My cynical take: At this point neither Obama or McCain will risk alienating large swathes of voters by appealing to their respective bases with any too concrete details of what they would like to do if elected. Politically aware voters know the power the next president is likely to have charting the future ideology of the courts. Deliberately stirring up large numbers of these folks is not a good idea.
9.4.2008 11:28am
J. Aldridge:
IF I understand the candidates positions correctly, McCain wants the issue of abortion to return where it belongs: State law (or local laws depending how a state deals with it).

BO on the other hand, prefers the issue of abortion to remain under supreme court edicts. In this case it is no wonder he would desire to stay away discussing judges in detail.
9.4.2008 11:28am
Norman Bates (mail):
Anderson and Justin: Judge selection cuts both ways. Abortion is not the only issue that future courts will be considering. A very large number of voters get nervous at the thought Heller might be overturned. Another large batch of voters would like Kelo reversed and it was liberal judges that rammed Kelo down our throats.
9.4.2008 11:32am
Justin (mail):
Norman, nothing you have said in any way undercuts what I said. Just that the abortion ad was designed to have the same effect that saying the word "judges" was, and for reasons mentioned neither side is playing up the issue.
9.4.2008 11:38am
Justin (mail):
Aldridge,

Not that it's on-topic at all, but McCain favors a constitutional amendment banning abortion.
9.4.2008 11:39am
Jon Roland (mail) (www):
The speechwriters and political consultants have settled into the mindset that neither the voters nor the bases of each major party understand or care about the importance of judicial appointments, except perhaps for the Supreme Court, and the importance of that is further dminished by the fact that only a few "liberal" justices are expected to retire during the next 4-8 yeears, so whoever wins, it won't be likely to change the direction of the Supreme Court.

It is a similar problem with trying to make constitutional compliance an issue. The politerati think the people don't underestand or care (and don't ask them to find out).

The only parties in which concern about judicial appointments plays are the Libertarian and Constitution parties, and in the former case, largely because I bring it up on the Platform Committee.

Generally, most people don't get interested in the subject of judicial appointments unless or until there is an especially interesting case before the court, at which point it's a bit late. During the last year the only such case that has excited much interest has been DC v. Heller. But even the Libertarian Party doesn't think in terms of a short list of libertarian lawyers to appoint to the federal bench, and it seems only the Texas LP makes a major effort to run judges for statewide judicial office, or can find any to run (who seldom attend meetings). I'm the only person I know with a list of libertarian lawyers I'd recommend for the bench.

It is part of a larger problem of people not being interested in public problems until the damage is done. Like Hurricane Katrina, it seems unreal until it is too late. Then people overreact for a few years until the memory fades. People generally don't respond well to long-term calls for action, although if enough people raise the alarm it can get them stirred up, as has happened with "global warming", now restyled "climate change".

A lot of us have been urging action on Near Earth Objects for years, but even after Shoemaker-Levy hit Jupiter Congress appropriated only a little money, just enough to give us a chance to detect an impending impact too late to do anything about it.
9.4.2008 11:40am
Jim at FSU (mail):
I think everyone who cares about this issue has already done their own research.
9.4.2008 11:40am
Rodger Lodger (mail):
Maybe Ch.J. Roberts and J. Alito have not registered as bad judges, just not ideals for the Dems? Just thinkin' out loud....
9.4.2008 11:44am
Dave N (mail):
Jon Roland,

I would add, though that when you single Texas as a state where the Libertarian Party runs judicial candidates, only seven states elect judges in a partisan manner.
9.4.2008 12:14pm
John M. Perkins (mail):
Spector brought up the judges on NPR, with McCain as the leader of the pragmatic comprisers. Roberts and Alito were used as evidence. Between the lines, Spector implied that McCain would stay far away from the Pickering types.
9.4.2008 12:18pm
Anderson (mail):
A very large number of voters get nervous at the thought Heller might be overturned.

And how many of those voters were at all potential Democratic voters?

Obama changed his mind after Heller and said he thought it was a correct decision. I don't see any reason why overturning Heller would be a priority for an Obama administration. As we've seen already, Heller is fairly weak beer.
9.4.2008 12:24pm
Anderson (mail):
Between the lines, Spector implied that McCain would stay far away from the Pickering types.

Right. Like Spector said that Roberts and Alito were moderates.
9.4.2008 12:25pm
trad and anon:
That's some extreme spin (why not add "and that they are all evil baddies"?). My cynical two cents: voters both know and care very little about the Supreme Court.
Really, that's true of just about every issue. That's why our elections wind up being about things like shoes, haircuts, and the candidates' taste in salad greens.
9.4.2008 12:26pm
CJColucci:
The base already knows the deal, and there's no point scaring the swing voters.
9.4.2008 12:38pm
Gabriel Malor (mail):
Mitt Romney reminded voters about the importance of judges in his speech yesterday, though it was only one line. He was talking about just what change is really needed in Washington.

Is a Supreme Court decision liberal or conservative that awards Guantanamo terrorists with constitutional rights? It's liberal.
9.4.2008 12:48pm
titus32:
Really, that's true of just about every issue. That's why our elections wind up being about things like shoes, haircuts, and the candidates' taste in salad greens.

You're even more cynical than me! There are some issues that still matter to some (e.g., Iraq, abortion, taxes). But I take your general point.
9.4.2008 1:07pm
wekt:

A very large number of voters get nervous at the thought Heller might be overturned.

And how many of those voters were at all potential Democratic voters?

Actually, there are many such voters (e.g., blue-collar workers who are pro-gun and pro-union) in places like rural Pennsylvania. The local Dems there are mostly pro-gun.
9.4.2008 1:26pm
Anderson (mail):
The base already knows the deal, and there's no point scaring the swing voters.

Precisely.

Is a Supreme Court decision liberal or conservative that awards Guantanamo terrorists with constitutional rights?

So now, fundamental human rights -- the kind we expected the Soviets to acknowledge at Helsinki -- are "awarded."

What a despicable excuse for an American he is.
9.4.2008 1:33pm
Dilan Esper (mail) (www):
I agree with both the liberals here who say the judges issue cuts our way on abortion and the conservatives who say the judges issue cuts their way on guns.

The problem for Republicans is, if you push the judges issue (on guns) too heavily, do you risk a counterreaction on Roe and abortion? I don't really know the answer to this, but that's probably why you aren't seeing a lot of mention of the issue.
9.4.2008 2:57pm
Roger Schlafly (www):
Obama would never want to have to explain just what is wrong with Roberts, Alito, and Thomas. He would just lose votes.

It is strange that Obama is unable to express himself in his main area of expertise.
9.4.2008 5:14pm
Dilan Esper (mail) (www):
Roger:

I think it's pretty easy to explain what is "wrong" with Roberts, Alito, and Thomas (and Scalia) to the electorate. Whatever conservatives actually believe about originalism (and I happen to believe that most conservative advaocacy of originalism is cynical and half-hearted), the public's view of the courts is entirely results-oriented. And what is "wrong" with those justices is that they are opposed to Roe v. Wade. Just like (and conservatives are right about this) what is "wrong" with the liberal justices, from the public's perspective, is that they are opposed to Second Amendment rights.

It's as simple as saying "John McCain will appoint Supreme Court justices who will overturn Roe v. Wade, and all opponents of Roe need is one more vote on the Court". You're not going to have a deeper discussion on the Roberts/Alito judicial philosophy, whether you'd like to or not.
9.4.2008 5:28pm
Roger Schlafly (www):
Obama has flip-flopped himself on Roe v Wade, as it applies to late-term abortions. Obama will try to avoid the issue, because his current position requires overturning Roe v Wade.
9.4.2008 9:44pm