Elections are important, from the composition of our federal bench to the highest court
In one of the most consequential campaigns in American history and perhaps our lifetimes, the judicial appointments have received remarkably little attention. The history shows how important presidential elections are. The Supreme Court
Between the years 1960 and 2020, there was a 32-year span of Republican presidents followed by a 28-year span of Democratic presidents. During this time, Republican presidents picked 15 Supreme Court Justices, while Democratic Presidents selected only eight. Richard Nixon chose four justices while Ronald Reagan and Donald Trump both selected three. Since Harry Truman, no Democratic president has appointed more than two justices. By contrast, every Republican president during this time, except Gerald Ford, selected at least two justices. In contrast, all Republican presidents during this period, except Gerald Ford chose at least two justices. Imagine Hubert Humphrey winning the 1968 presidential election instead of Nixon, and Humphrey being able to choose four justices within his first two years as president. The liberalism of the Warren Court could have lasted for decades. San Antonio Independent School District V. Rodriguez (1973) is the case that best illustrates the effects of the 1968 presidential elections. The Supreme Court rejected the claim that education was a fundamental right. Rodriguez was a challenge against the Texas system that funded public schools primarily through local property tax. Texas’ funding system meant that wealthy areas could tax at lower rates, but still have more money to spend on educational programs. In San Antonio, for example, a poorer district spent only $356 per student, while a wealthier one spent $594. The court rejected this argument, holding that poverty was not a suspect category and that discrimination against the poor should only be reviewed on the basis of rationality. As for the latter, the high court held that there is no right to education under the Constitution.
The decision was 5-4, with the four Nixon appointees, joined by Justice Potter Stewart, a Dwight Eisenhower appointee, in the majority. The rejection of education as fundamental right by the court closed the door to many other claims, including rights to government services. The court’s rejection that poverty was a suspect classification ended Warren Court’s attempts to use the Constitution to advance economic injustice. Since Trump’s 3 justices joined the court, many areas of law have been dramatically changed. It overturned Roe v. Wade, ending after 49 years a constitutional right for abortion. It has expanded gun rights dramatically and ruled that the only gun restrictions allowed are those which existed historically. It has changed the law regarding the religion clauses. It has overruled the test that was used for more than half a century to determine whether there is a breach of the establishment clause in the First Amendment. The court effectively overruled many decisions from the past 45 years by ending affirmative action in colleges and universities. The court held for the first time that a business can violate state anti-discrimination laws if it is engaged in expressive activities. The court has granted immunity to the president for any act that is done in carrying out his constitutional or statutory duties. Each of these decisions shifted the law in a more conservative direction. These decisions are the result of the 2016 presidential elections and the fact that Trump was able to appoint the three justices. Other presidential elections were important, but not as pivotal in determining the composition of the Court. If John McCain had won the 2008 election and appointed two justices, today’s court would have a conservative 8-1 majority instead of the current 6-3 split. If John Kerry had won in 2004 – and he would have won had he carried Ohio – and he had replaced Justice Sandra Day O’Connor and Chief Justice William Rehnquist, today’s court would have a liberal majority of 5-4. There can be unexpected vacancies. Only three justices, Clarence Thomas (age 75), Samuel Alito (74) and Sonia Sotomayor (71) are in their 70s. If Trump wins, and there is a Republican Senate in place, I predict that Thomas and Alito would retire so that their seats could be filled by younger conservatives. This would ensure a conservative majority in the Senate for decades, as Neil Gorsuch and Brett Kavanaugh are both in their 50s. If Vice President Kamala Harris were elected president, and there was a Democratic Senate in place, Sotomayor would likely retire, and that seat could be filled by a liberal. Without a doubt, Trump and Harris would pick individuals with radically different ideologies for the high court.
Federal courts of appeals and district courts
In his four years as president, Trump picked 234 Article III judges: three Supreme Court justices, 54 judges for the United States courts of appeals, 174 judges for the United States district courts and three judges for the United States Court of International Trade. Biden had selected 213 Article III Judges as of October 21: One Supreme Court Justice, 44 judges for United States courts of appellation, 166 judges in the United States district court system, and two judges at the United States Court of International Trade. Out of the 179 judges on the courts of appeals, 89 were selected by Republican presidents, and 89 by Democratic Presidents. Democratic appointees hold a majority of seven federal appeals courts whereas Republican appointees hold a majority on six courts. On the Third Circuit there are six Democratic appointees, and seven Republican appointees. The Sixth Circuit has nine Republican appointees, and seven Democratic appointees. The Seventh Circuit is made up of six Republican appointees, and five Democratic appointees. The 10th Circuit consists of five Republican appointees with seven Democratic appointees. The 11th Circuit, on the other hand, is the opposite with seven Republican appointees to five Democratic appointees. It often is forgotten how closely divided the Ninth Circuit is with 13 Republican appointees and 16 Democratic appointees.
The reality is that overall, there is a great ideological difference between who Democratic and Republican presidents pick for federal judgeships. And it is irrefutable that Trump and Harris would pick vastly different people for the federal bench.
Conclusion
The coming presidential election will matter enormously for the composition of the Supreme Court and the federal judiciary. And its effects will last for decades.
See also:
What we know about Trump, Harris, and judicial nominations
Mike Davis trolls the left online. He could also help Trump pick MAGA judges
Conservative faction pushes judge nominees who are ‘even more bold and more conservative’
Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert on constitutional law, federal practices, civil rights, civil liberties and appellate litigation. He is also the author of several books, including No Democracy lasts forever: How the Constitution threatens the United States. His next book will be A Court Divided October Term 2023(November 2024).
