Eric Kasper is an assistant professor at the University of Wisconsin-Barron County. He previously worked as a teaching assistant at UW-Eau Claire, UW-Madison and UW-Milwaukee. His research interests include criminal law and procedure, the Bill of Rights, the Supreme Court and the separation of powers.
Wisconsin Vote on Campus asked him three questions about this year's election.
What impact will electing either Barack Obama or John McCain have on the judicial branch?
There is no question that whoever wins the 2008 presidential election will be able to greatly affect the composition of the federal judiciary. On the U.S. Supreme Court, the average age of the nine justices is 68, and it is likely that at least one or two will retire in the next four years. In particular, Justice John Paul Stevens is 88 years of age and Justice Ruth Bader Ginsburg is 75. In addition, both Justice Antonin Scalia and Justice Anthony Kennedy are 72 years of age. Given the amount of media attention given to John McCain’s age, it is interesting to note that four of the current justices are older than McCain!
The major concern regarding appointments to the Supreme Court is the justices’ ideology. Electing John McCain would likely have a greater impact on the future of the Supreme Court than electing Barack Obama. Currently, the Court is composed of four liberals (Stevens, Ginsberg, David Souter, and Stephen Breyer), four conservatives (John Roberts, Scalia, Clarence Thomas, and Samuel Alito), and one moderate, Justice Kennedy. Many of the Court’s major rulings in recent years have been 5-4 decisions, with Justice Kennedy as the swing vote. The justices most likely to retire are Stevens and Ginsberg, and both of them are liberals. Hence, if Obama is elected, it is likely that retiring liberals would be replaced by newly appointed liberals. However, if McCain is elected, it likely that retiring liberals would be replaced by more conservative justices. This could tip the court from being equally balanced to being largely conservative. Of course, one never knows when a justice will die or simply decide to retire at an earlier age, but given the current Court composition, it is likely that the election of McCain would have a greater impact.
That said, the Supreme Court is only one part of the equation. The Supreme Court only gives full consideration to approximately 75 cases per year. This means that most federal cases end at the district (trial) court or court of appeals levels. Today, there are nearly 700 federal district court judges, and there are 179 judges who sit on the federal court of appeals. If a vacancy arises, appointees for these lower courts also require confirmation by the Senate, but they receive nowhere near the media publicity that a vacancy on the Supreme Court does. Thus, it is easier for a president to select judges for these courts with much less scrutiny given to the appointments. In one term of office, a president may appoint one or two hundred lower court judges, so the power to reshape the judiciary here is quite great indeed. Obviously, Obama would be likely to appoint liberal jurists, and McCain would appoint many more conservatives.
Suppose that Barack Obama wins the presidency and the Democrats increase their size in the Senate to above 60. What are the positives and negatives of having such a one-party dominance in Congress and the Presidency?
First of all, it is interesting to note that for most of U.S. history, one-party government was the norm. For instance, from 1828 to 1860, the Democrats won six of eight presidential elections and held a majority in both houses of Congress almost every session. Similarly, from 1860 to 1932, the Republicans won the presidency and controlled Congress well more than a majority of the time. Each party has also had overwhelming dominance at different times. From 1869-1871, the Republicans controlled the White House, and they held 61 of 74 Senate seats and 170 of 243 House seats. Likewise, from 1937-1939, the Democrats controlled the presidency as well as 75 of 96 Senate seats and 333 of 435 House seats. Although the majorities in the past were not always this large, it was more likely that one party controlled both branches of government. It has only been since 1968 that divided government has become the norm in American politics, whereby the most common scenario has been one party controlling the presidency and the other party controlling Congress.
From a partisan point of view, the positives and negatives of this one-party dominance will vary depending on your party affiliation. From a Democratic Party point-of-view, there are many positives. Members of Congress would be able to accomplish their legislative agenda without the threat of a Republican filibuster in the Senate or a Republican veto at the White House. Likewise, judicial appointments and other executive appointments would be easily confirmed, as the minority party could not hold them up in the Senate. The only negative for the Democrats would be the possibility that they overplay their hand and push an agenda that is too liberal for the electorate to bear. Doing this could lead to an electoral backlash in 2010 and 2012. Remember, from 2003 to 2007, the Republicans controlled the presidency, the House, and the Senate. With so many independent voters, control of the government can change hands quickly today.
From a Republican perspective, just the reverse would be the case. The party would have little to no recourse to stop anything done by such large majorities. However, the Republicans could begin slowly building their case for future elections, and they would have the ability to perhaps work for some compromises in certain legislation.
From an institutional point of view, there is a strong argument for one-party dominance and a strong argument against it. If you want the government to be efficient and avoid gridlock, it is much better to have one party control Congress and the presidency. This ensures that the party in power can accomplish what it feels is its mandate from the voters; in turn, voters in the next election will be better able to evaluate the success of that party because no one can blame any failures on a minority party that is so small. However, the downside to such dominance is that there is less of a check in place. A minority party that small can do very little to hold up change that they feel is against the national interest.
Suppose that John McCain wins the presidency and the Democrats keep the about the same number of people in Congress. How would that affect McCain's ability to push his legislative agenda?
Although John McCain’s chances of policy success are lower with the Democrats controlling Congress, he should still be able to accomplish many of his goals. Presidents in the era of divided government have been able to pass a substantial amount of legislation – usually all that is required is more compromise. For instance, Democratic President Bill Clinton had to work with a Republican-controlled Congress for six of his eight years as president. In that time, Congress passed (and Clinton signed into law) major policy initiatives that included welfare reform, the Defense of Marriage Act, telecommunications reform, a minimum wage increase, and the Antiterrorism and Effective Death Penalty Act.
Given John McCain’s history of working across the aisle while in the Senate, he would have the potential to pass some of his major policy initiatives. In 2002, McCain and Democratic Senator Russ Feingold were able to pass a comprehensive campaign finance reform bill. In 2005, McCain was part of the “Gang of 14”, a bipartisan group of seven Republican and Seven Democratic senators who negotiated a compromise to end a standoff between the two parties over the use of the filibuster on judicial nominees. Thus, McCain would probably be able to work out compromises to pass some of the legislation he wants, depending on the issue. He has a more liberal position than President Bush on global climate change and the development of alternative energy sources, so congressional Democrats would likely work with him on that. McCain has also been supportive of federal funding of embryonic stem cell research, which Democrats tend to favor. And do not forget that the president needs to sign a congressional budget into law every year, so they would need to find the ability to compromise on this matter too.
However, there are some things that McCain would be unlikely to pass through a Democratic Congress. For example, McCain clearly would not be able to ask Congress for more restrictions on abortions. It is also improbably that Congress would reaffirm the Bush tax cuts for people in the top tax brackets, something McCain supports (these tax cuts are currently set to expire in 2011). Finally, McCain would likely face opposition by a democratic congressional majority if he continued the war in Iraq.
