by DAWN JOHNSEN
The courts are squarely in view now, along with the 2020 pandemic and so much else at stake November 3. The death of Supreme Court Justice Ruth Bader Ginsburg reminds us: For our country’s long-term health, few election issues outrank the power of the president to appoint and the Senate to confirm federal judges.
The stark differences in the life-tenured federal judges to be appointed by either Donald Trump or Joe Biden will alter the future course of the United States, our democracy, and the rights of all of us residents for decades to come.
Remember Brett Kavanaugh? Two years ago, we were riveted by Trump’s high-stakes play to replace Justice-in-the-Middle Anthony Kennedy with Kavanaugh, whose erratic, hyperpolitical confirmation testimony included allusions to conspiracy theories. His partisan 50–48 confirmation secured a slim 5–4 majority and moved the Court sharply to the ideological right. Trump has also now appointed more than one of four lower-court federal judges—judges who resolve numerous issues that never reach the Supreme Court.
November 3’s election will determine whether Trump will solidify and expand his hold on the Supreme Court and federal judiciary. If re-elected, Trump’s new appointments will serve long after he leaves office and make our courts profoundly out of step with the nation for decades to come. Joe Biden’s own record provides a dramatic illustration of the importance of the courts at an earlier pivotal moment.
Remember Robert Bork? Back in 1987, Americans hotly debated whether the Senate should confirm Bork to succeed then-Justice- in-the-Middle Lewis Powell. As a young ACLU lawyer, I watched Senate Judiciary Committee Chair Joe Biden work tirelessly to expose Bork’s extreme view of the Constitution and “originalism”— which, for example, would allow the government to criminalize abortion and even a married couple’s use of contraception. What a difference Biden’s leadership made, when the Senate voted 58–42 against confirmation and later confirmed Kennedy to that seat.
Case in point: In the landmark 1992 decision Planned Parenthood v. Casey, a Justice Bork surely would have provided the fifth vote expressly to overrule Roe v. Wade. Instead, Justice Kennedy upheld Roe’s “central holding” on stare decisis [to stand by things decided] grounds: “An entire generation has come of age free to assume Roe‘s concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions.” That ruling is at grave risk today. In 2015, a Justice Bork also surely would have joined the four dissenting Justices in Obergefell v. Hodges opposed to marriage equality. Instead, Justice Kennedy wrote eloquently to recognize the constitutional right to marry the person one loves regardless of sexual orientation.
Remember Merrick Garland? When Republicans outrageously refused to even consider President Obama’s nomination of Garland—a brilliant, consensus-style nominee—they extended a 50-year run of the Court with a majority of members selected by Republican presidents. Garland would have ended that, and likely offered a
Court with dramatically different approaches to voting, presidential abuses, racial justice, individual liberties, the environment, access to courts—and Congress’ authority to legislate and provide oversight on such issues. Instead, Trump and the Republican-controlled Senate gave us Justice Neil Gorsuch.
Remember Bush v. Gore? In that breathtaking, 5–4 partisan ruling, the Court intervened to resolve the 2000 presidential election in favor of George W. Bush. Could we see another election headed to the Court in two months? Let’s hope such a debacle isn’t repeated.
It’s downright bizarre, the disjunction between elections and the makeup of the current Roberts Court. Thanks to the Electoral College, four of the five current Republican-appointed Justices were appointed by presidents who lost the national popular vote: John Roberts and Samuel Alito by George W. Bush and Gorsuch and Kavanaugh by Donald Trump. (The fifth, Clarence Thomas, barely won Senate confirmation.)
Who is appointed to the federal courts dramatically affects all of us. Consider two cases to be heard by the
Court in just the week after the election. One case reviews Philadelphia’s exclusion of a faith-based organization from its foster care system because the agency won’t work with same-sex couples, raising more general, profound questions of religious-based exemptions from laws protecting LGBTQ rights. The Trump administration has sided against Philadelphia’s ban on discrimination. A second case weighs yet another legal challenge to the Affordable Care Act, with the Trump administration taking the extraordinary position of refusing to defend a federal statute and seeking to deprive millions of Americans of health care.
The stakes for our federal courts in the upcoming election are momentous. Please get out and vote!
Dawn Johnsen is a constitutional law professor at the Indiana University Maurer School of Law. She served at the Department of Justice in the Clinton administration, on the Clinton and Obama transition teams, and is a reproductive rights advocate.