Nominations to federal courts, particularly the supreme court, differ from other nominations a president may make in that these are lifetime appoinments. In practice, "lifetime" may be expected to refer to a term of service up to 30 years (in fact, the longest-serving judge on the present court, John Paul Stevens, was appointed by Ford exactly 30 years ago, in 1975).
In other words, the makeup of the supreme court at any given time should reflect the choices made by voters over the previous three decades. More on the these choices on the flip ...
Filling an appointment to the SC is the task of two co-equal branches of the government, the President and Senate. The question to ask, therefore, is what sort of mandate did the voters give to those branches over the last 30 years?
Table 1) Votes for Candidates by Party Affiliation since 1976 (in million votes):
. Republicans Democrats
President 377 358
Senate 388 416
(Source for raw data:
http://clerk.house.gov/...)
Note: The fact that there were more total votes for the Senate than for President is explained by the fact that voters in any given state get to vote for President once every four years, but for Senate once every three years on average (2 Senators per state with 6 year terms). However, fewer voters participate in mid-term elections.
There are several conclusions we can draw from this data:
- Over the timeframe under analysis, significantly more votes were given to Democratic candidates for institutions involved in filling the SC, overall.
- The overall balance of votes for the nominating institution (the President) in no way suggests that the current balance of seven Republican appointees to two Democratic ones reflects or represents the will of the sovereign, the American voter. The fact that this imbalance was possible to develop is primarily a reflection of various quirks in the American voting system, particulary the inproportionate power given to voters in small states with respect to electing members of the institutions in question.
- Given the existing imbalance, and the technical rather than political reasons for it, no mandate can be deduced to further radicalize the Supreme Court with extremist judges.
As part of our fight against extremists like Samuel Alito, our arguments need to take the historical perspective into account as well, rather than just the properties of the current atrocity. We know that a major aspect of the republican counter-attact is going to involve charges of obstructionism. Rather than fight this charge, we may want to consider framing the issue as
corrective obstruction, the same way that a (sorely missing) presidential veto against pork-laden appropriations bills would constitute similar corrective obstruction.