In an election year, many issues will vie for the attention of American voters.
This year, there’s one issue that isn’t getting the focus it deserves: the composition of our federal court system.Congress (or a state legislature) can pass a law, and it can be signed by the president or a governor – but if the law fails to comport with the U.S. Constitution, it will be struck down. Courts, therefore, are often our last line of defense in protecting religious freedom and the separation of church and state.
At the federal level, judges are appointed by the president and either confirmed or denied by the Senate on a simple majority vote. (The House of Representatives plays no role in this process.) Thus, the president has the power in some cases to reshape the judiciary.
This is not theoretical. A vacancy exists on the Supreme Court right now. Justice Antonin Scalia died in February. The Republicans who control the Senate have refused to hold hearings on Merrick Garland, a federal judge President Barack Obama named to replace Scalia. It’s unlikely they will move on this matter before the election.
The high court is precariously split 4-4 on many issues. This means the next president will have an opportunity to determine the court’s direction for a generation.
Vacancies exist on many lower federal courts as well. Since most cases never reach the Supreme Court – the high court accepts less than 2 percent of the cases it is asked to hear – the lower courts are extremely important. The fate of most legal battles will be determined there.
The president and the Senate can have a powerful impact on these courts. The 4th U.S. Circuit Court of Appeals, which hears cases from the states of Maryland, West Virginia, Virginia, North Carolina and South Carolina, used to be extremely conservative and hostile to church-state separation. But a number of judges retired or stepped down and were replaced by Obama appointees. The circuit is now much more moderate.
Despite the importance of this issue, it simply isn’t being discussed enough during this campaign. It was barely mentioned during the Republican and Democratic conventions.
The debates will provide another opportunity, probably our last one before Nov. 8. Both Donald Trump and Hillary Clinton should be pressed to explain what sort of men and women they will appoint to the federal courts.
Presidents serve for four to eight years. Federal judges receive lifetime appointments. A federal judge can continue to have an impact long after the president who appointed him or her has left office.
This issue is too important to continue to ignore.