It’s the courts, stupid

If the polls don’t make Democrats anxious, think about this. The U.S. Supreme Court, the Roberts court, which liberals and progressives deplore, usually rules in a 5-4 margin in contentious cases, and not always. But Justice Ginsburg is 79 and frail; Justices Scalia and Kennedy are 76; and Breyer 74. There is a good chance (but no certainty) the next president will have to replace one or more of them. If the majority switches in these high-profile, high-stakes cases to 5-4 the other way, it can make a huge difference for decades, on the vital national issues that come before the court for a final word.

And the Supreme Court is the tip of the iceberg. There are 94 district courts (federal trial courts) and 13 appellate or circuit courts. The Supreme Court decides about 80 cases a year (of the 10,000 petitions it receives); the appellate and circuit courts decide 30,000. They become courts of last resort unless their decisions are among the few that are appealed and accepted by the Supreme Court.

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Justices write about textualism, originalism, stare decisis, judicial activism and other jurisprudential concepts. But the fact is that justice is what the justices say it is. And individual justices say different things. My first argument before the court dealt with an issue the court had decided 5-4 against my position seven years earlier. This time the court ruled my way. There had been two changes of court personnel. Point made?

President Obama hasn’t been a strong chief executive concerning appointments to the federal courts, leaving openings for lack of appointments he could and should have made. But Mitt Romney is likely not to make that error of inaction, and is likely to appoint federal judges reflecting the views of his conservative base.

Wake up, people. There is much at stake here.