Upon leaving office, President Dwight D. Eisenhower was asked what the biggest mistake of his presidency was.
His reply was simple and telling “I made two. And they’re both sitting on the Supreme Court.” Whereas Eisenhower was relegated to a role of private citizen following his second term in office, his Supreme Court appointments remained on the bench for decades
It is this very reason that many believe that Supreme Court appointments are the most important decisions that are made by presidents during their time in office.
While the presidency is muddled with political battles waged in order to impede progress, the Supreme Court is bound only by the Constitution and federal laws. And, as was demonstrated to us over the summer with the Obamacare health care ruling, the buck often stops with the Supreme Court.
This presidential campaign has been noticeably vacant of major topics that could come to define the future trajectory of our nation. Following Hurricane Sandy, many wondered why the candidates had never directly addressed our nation’s role in climate change. Following the shooting massacre in Aurora, Colorado, both President Obama and Mitt Romney failed to specify what steps they would take to stem gun violence in our nation. However, the potential appointments of future Supreme Court justices very well could be the most important issue that neither Obama oor Romney have directly addressed.
If you need proof of the magnitude accompanying an appointment to the Supreme Court look no further than landmark decisions in the Court’s recent history. It was a 5-4 Supreme Court vote, not Congress or President Obama, who ultimately made the Affordable Healthcare Act a reality. In 2010 it was another 5-4 vote that dramatically altered the political landscape of this year’s election when the court made its decision in the campaign funding question of Citizens United.
As a Supreme Court appointment could very well be the most impactful decision of a presidency, why have both candidates been silent on the issue? For starters, despite the effects that such an appointment will have, it is generally not a topic that the American electorate is interested in. And, in fairness, nobody – not sitting presidents, not the pundits, not even the Justices themselves – know when the president will need to make an appointment to the court. However, what we do know is that it will be the president who will make this appointment (of course, the prospective justice will need to be confirmed by Congress).
What we also know is that the current crop of justices is a relatively old bunch. Four out of the nine justices are in their 70s. Ruth Bader Ginsburg is 79; Antonin Scalia and Anthony Kennedy are 76; Stephen Breyer is 74. Of these justices, two generally fall in line with the Court’s conservative wing (Kennedy and Scalia were both Reagan appointees) and two with the liberal wing (Breyer and Ginsburg were both Clinton appointees). Ginsburg has already indicated that she will step down if Obama is elected to a second term, and Scalia has hinted that he might do the same if Romney is elected. And while justices often do wait until the party who appointed them is back in control of the White House, the harsh reality is that at their advanced age these justices may not be able to choose when their seat is vacant.
Much like the justices themselves it will be circumstances that will dictate what issues come before the court. These are issues that very well could come to define our nation when they are decided. And this makes it all the more shameful that both candidates have failed to address the issue this campaign season