Dissatisfied with the Supreme Court? Your vote for the president could make things worse

(Kent Nishimura/Los Angeles Times)

Dissatisfied with the Supreme Court? Your vote for the president could make things worse

Op-ed, Elections 2024, Abortion

Jackie Calmes

March 10, 2024

It no longer needs to be said: when Americans vote for a president, the federal courts are also voting. Yet too few voters, especially among those in the decisive middle, make their choice with that in mind.

Think about it: the issues on voters’ minds


in this election year, most concerned about immigration, reproductive rights, the economy and government regulation, firearms

checks control

Increasingly, decisions are being made by federal courts reshaped by Donald Trump, including the Supreme Court, because of crippling dysfunction in Congress.

Add to these perennial issues the novel of 2024: Trump’s legal liability. Here the influence of the judiciary could not be clearer. The dragging through the Supreme Court, where three Trump appointees sit, and at the Florida court, where a Trump-appointed judge presides, has all but assured that voters will not face criminal sentences before Election Day about the former president’s efforts to reverse his 2020 defeat and get rid of top-secret documents.

We 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 since the 2022 Dobbs decision, which overturned half a century of abortion rights, have Democrats woken up to what Republicans have long known: With executive and legislative power, your party can put its stamp on the unelected third branch of the government, the judiciary. and that legacy may long outlive the politicians. As Trump Senator Lindsey Graham of South Carolina recently said about 2024: One of the big issues on the ballot is the push for a more conservative judiciary.

Be warned, Democrats. Flip the script, mobilize


voters around this issue.

Here’s the stakes: If Biden wins, he can continue the unfinished work of trying to offset the right-wing (and white male dominance) that Trump has given to the courts by appointing more judges in one term than any other president then also Jimmy. Carter. Biden’s efforts could be set back if, as widely expected, Republicans take control of the Senate and bungle the confirmation efforts.

But it is better to take slow action in the Senate on Biden’s nominees than a return, if Trump wins, to an accelerated path for the far right. Such as Trump appointee Aileen Cannon, the novice district judge in Florida who (mis)handles the trial against the former president involving classified material. Or

Matthew Kacsmaryk

, the Texas district judge and culture warrior who last year sought to ban mifepristone, one of two drugs used in the 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 and at one point wrote that mifepristone, which is only used up to ten weeks of pregnancy, ultimately gives the unborn person the leading role until death. The Supreme Court will hear the case on March 26.

Another consideration for voters: While a re-elected Biden would likely not be able to change the imbalance between six conservatives and three liberals on a Supreme Court, he could prevent it from getting 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 mid-70s and could choose to step aside if Trump wins, court watchers speculate, so he could replace them with similar ones. .. Skilled lawyers who are young enough to serve for decades. (In normal times, we might already have gotten rid of Thomas through impeachment or removal, given his well-documented ethical lapses and his refusal to recuse himself from January 6 cases, despite his wife’s complicity in efforts to overthrow the election of Biden to undo. But these are not normal. times.)

When Trump reluctantly left the White House, his judicial picks made up one-third of the Supreme Court, nearly one-third of the thirteen appellate courts, and over a quarter of the 94 district courts. Because relative youth and proven Republican bona fides were the job criteria established by Trump and the trio to whom he outsourced his Senate Republican leader, Mitch McConnell, then-White House Counsel Don McGahn and the former leader of the Federalist Society , Leonard Leo Trump, probably do too. were prominent on the federal bench until well after mid-century.

Surpassing Trump seems impossible, was the headline last fall in an analysis of Biden’s judicial appointments by Russell Wheeler of the Brookings Institution, which monitors the courts. However, in an update in January, Wheeler said that while Biden is unlikely to surpass Trump’s total for appellate court judges, he could match him among district judges.

If Biden falls short, it will not be due to a lack of trying. More than Democratic predecessors Bill Clinton and Barack Obama, he has made judicial appointments a priority in the wake of Team Trump’s targeted makeover of the courts. Better late than never?

After all, Biden was leader of the Senate Judiciary Committee for many years; he knows his stuff. (Except we have him to thank for Thomas’s confirmation 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, though the pace was still slow late last year, as Wheeler put it.

One problem is that Biden has not inherited nearly 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 could fill the seats. In Trump’s final year, McConnell almost fulfilled his promise not to leave a vacancy


he even rammed 14 nominees into confirmation


Trump lost the 2020 election, the first time since 1897 that a defeated presidential candidate was confirmed.

Now Democrats must copy McConnell’s zeal. Fifty-seven judges are open, and Biden has chosen nominees for only a third of them. For starters, he and Senate leaders are being too deferential to Republicans about who to nominate for vacancies in the Red State. Get them all filled before Election Day, read that Trump and a Republican-led Senate will once again inherit a glut of seats.

If the republic is lucky, voters will give Biden another four years to stay. And that’s more likely if enough of them remember: The bank is on the ballot, too.



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