Washington Watch: What no one is talking about

“The future of the nation’s highest court hangs in the balance in this election,” observed The New York Times. Yet it remains the most important issue no one is talking about in this election.

By DOUGLAS M. BLOOMFIELD
Obama, Romney in Israel 370 (photo credit: Reuters)
Obama, Romney in Israel 370
(photo credit: Reuters)
If you thought it was the economy, stupid, you’re only half right. That’s the short-term issue; the economy is on the mend and it is bound to get much better no matter who is president next year. But the lasting impact of Tuesday’s election will be in the federal courts, and not just for the next four years but 40 years, as the next president appoints hundreds of federal judges.
Nowhere will the impact be greater than in the Supreme Court, where four of the current justices are in their 70s. The next Supreme Court vacancy could produce a dramatic switch in alignment. The court currently has four liberals and four conservatives plus one moderate conservative, Anthony Kennedy, who provides the swing vote in nearly every 5-4 decision.
President Barack Obama named two justices to the court in his first term, liberals replacing liberals and maintaining the present balance. Over the next four years there could be two more vacancies to fill along with hundreds more on the appeals and district courts.
Presidents Reagan and Clinton each named about 375 judges, and many are still there.
Ruth Bader Ginsburg will be 80 next year and has been treated twice for cancer. If she retires during the next four years, and Mitt Romney is president, he has said he will pick someone in the mold of four sitting justices – Antonin Scalia, Clarence Thomas, John Roberts and Samuel Alito – who are among the most conservative justices since the 1930s.
HERE’S ANOTHER insight into Romney’s thinking: His campaign judicial advisor and a man he has called his model for justices is the ultra-conservative Robert Bork, who once claimed civil rights laws infringed on white people’s freedom of association.
Ginsburg is one of three Jews (Stephen Breyer, 74, and Elena Kagen, 52) on the Court that also has six Catholics (Scalia, 76; Thomas, 64; Roberts, 57; Alito, 62; Kennedy, 76, and Sonia Sotomayor, 58). For the first time in its history, there are no Protestant justices. The three Jews and Sotomayor are the liberal block.
If Romney gets to replace one of the liberal justices, it will result in the most conservative court in history, according to Lucas A. Powe Jr., a Supreme Court historian.
That will produce a long-term realignment that will allow Romney to achieve a number of his conservative goals, most notably the repeal of Roe v. Wade, extensive removal of government regulation of business and the environment and a rollback of the banking and Wall Street reforms intended to prevent a repeat of the practices that created our worst economic recession since the Great Depression.
If Romney picks someone too far to the right he can expect Democrats to try to block the nomination. If Republicans win control of the Senate next Tuesday look for them to revive old threats to impose rules prohibiting filibusters on Supreme Court nominations.
As it is, although they have been in the minority throughout Barack Obama’s first term, Republicans were able to block dozens of the president’s nominees for the federal bench, and in light of the highly polarized atmosphere in Washington these days, a Romney administration may find the next four years will be payback time.
We have just come through the most expensive presidential campaign in history – each candidate raised and spent $1 billion – and hundreds of millions more were spent by secretive SuperPACs that are not required to report the sources of their money. It is unconscionable but sanctioned by the Supreme Court’s odious Citizens United decision allowing unlimited spending by corporations, unions and wealthy individuals, all free of any accountability.
It makes a mockery of the conservative mantra about opposing activist judges legislating from the bench since it was the conservative justices who trashed the post-Watergate reforms and declared corporations are people, too.
Romney’s agenda also calls for restricting reproductive rights, limiting access to contraception, banning same-sex marriage, tightening immigration and citizenship requirements and opening public lands such as national parks and wildlife preserves to oil and gas drilling.
A top priority for Jewish groups should be halting a right-wing assault on the separation between church and state that is being pushed by the GOP’s religious Right.
Following the court’s party-line vote to plunge into the political thicket and confirm the election of George W. Bush and then the Citizens United decision, its public standing has been steadily deteriorating. A Pew Research Center poll this spring showed its positive rating at a 25-year low among both Republicans and Democrats. One of Bush’s lawyers on that case was John Roberts, who he later appointed chief justice.
Every president looks for like-minded nominees young enough to serve for many years and hand down decisions defending their presidential sponsor’s legacy.
Romney could have a problem there since he has taken so many conflicting positions, ranging from “severe” conservative to Massachusetts moderate. However, he may feel compelled to solidify his standing with his party’s hardline conservatives by picking one of theirs as his first court appointment.
“The future of the nation’s highest court hangs in the balance in this election,” observed The New York Times.
Yet it remains the most important issue no one is talking about in this election.
©2012 DouglasMBloomfield www.thejewishweek.com/blogs/douglas_bloomfield