There are plenty of stories and commentaries out there highlighting why one issue or another hasn’t been receiving the necessary attention at the Democratic National Convention. In general, I find these rather pointless — Dems have crafted a fairly broad message, but it can’t include everything. If your pet issue gets left off the game plan, it’s a shame, but there’s probably a good reason it’s on the backburner.
On the other hand, Slate’s Dahlia Lithwick touched on an issue that I happen to care about and wondered why she hasn’t heard much about it — the federal judiciary.
The American Constitution Society hosts a panel at the Boston Public Library titled “The Constitution at the Crossroads: 2004 and the Future of American Law.” The first question after the formal presentation goes to the perennial election problem: “How do we get the issue of judges to matter to the American voter?” Why don’t people care what kinds of judges the president puts on the bench? […]
[T]he truth is that no one cares who appoints the next four justices, or three justices, or seven. We just don’t. So, the lawyers are, quite reasonably, wondering why.
In a sense, it’s an unfair question to ask at this convention, because the environmentalists, the stem cell folks, and the labor people are all in the same fix: This isn’t the year to get any one issue before voters, who are having enough trouble deciding what to think about the war. But, if you can ignore the war for a moment, this should have been the year in which judicial appointments mattered a whole lot. For one thing, if you cared about gay marriage, or abortion, or the right to die, or civil liberties, as much as they say you do, almost nothing else matters but who’s on the federal bench.
As a matter of substance, I agree with this wholeheartedly. I’m probably part of a miniscule minority of voters who considers judicial nominations one of the top issues in any presidential campaign. But Lithwick’s right; Dems aren’t emphasizing the issue in Boston, or anywhere else for that matter. It’s not unreasonable to ask why.
I think there are, however, a few reasons to explain the omission.
First, I think it’s probably fair to say that Dems are a little worried about the “obstructionism” charge. While I enthusiastically support the right of Senate Dems to filibuster a handful of Bush’s most extreme judicial nominees, it’s only fair to note that GOP complaints about the tactics being “unprecedented” are not wholly without merit.
Dems are facing an unusual situation and they are resorting to unusual defenses. Republicans blocked many more judicial nominees under Clinton than Dems are now, but they relied on the committee process, which is common, while we’re relying on filibusters, which isn’t common. Few issues seem to irk GOP leaders more than these filibusters and by highlighting the significance of judicial nominees, Dems are practically inviting a debate over their tactics. Given the circumstances, it’s likely that they’d prefer to ignore this fight and focus attention elsewhere.
The second reason I think this issue is largely invisible is that it tends to emphasize “culture war” issues that Bush wants to use as wedges throughout the campaign. Put another way, why is this issue so important? Because if Bush has another four years to stack the judiciary, we’ll likely see even more legal retreats on the rights of gays, women, ethnic minorities, religious minorities, and unions. For a variety of reasons, however, this isn’t what this campaign is about. The Kerry campaign largely believes that a culture-war campaign, such as the one the first Bush used against Dukakis, will help Republicans and give Bush a second term. I’m inclined to agree.
Third, it’s really tough to battle public ignorance on this issue. Most voters don’t seem to realize that the president is responsible for nominating every federal judge and that these jurists serve lifetime careers. I remember talking to Celinda Lake, a Dem pollster, shortly before the 2000 election and she had been doing some focus group work on this issue. She told me that some voters weren’t all that concerned about Bush appointing conservatives to the Supreme Court, for example, because they thought the high court had lots of justices and Bush couldn’t do a lot of damage. In one example, a woman told her she thought the Supreme Court had about 30 members, so even if Bush named one or two justices, it wouldn’t be that big a deal.
This is a real problem that’s insurmountable in a presidential campaign. Kerry and Edwards would have to first educate people about the process, then explain what Bush was doing to the judiciary, and then present a plan for a better way. This simply takes too long. Any issue that you have to explain and cajole voters into caring about is a lost cause.
And finally, in the interest of fairness, I should point out that the issue is clearly not on the front burner, but it has not gone completely unnoticed by convention speakers. Al Gore, for example, received some of his most enthusiastic cheers on Monday when he said:
“Let’s make sure not only that the Supreme Court does not pick the next President, but also that this President is not the one who picks the next Supreme Court.”
Likewise, Al Sharpton adlibbed one of his sharpest attacks of the year last night.
“I suggest to you tonight that if George Bush had selected the court in ’54, Clarence Thomas would have never got to law school.”
Convention-goers loved this because they’re already well aware of the significance of the issue. Unfortunately, most of the public is not. That isn’t going to change this year.