Work is under way on the facade of the Supreme Court building in Washington.… (Alex Brandon / Associated…)
Three months ago, the New York Times reported that the composition of the U.S. Supreme Court likely would become “a significant issue in the presidential campaign.” On Sunday, Los Angeles Times Supreme Court reporter David Savage reported that the reelection of President Obama or his replacement by Mitt Romney could tilt the court markedly left or right.
Yet the issue of Supreme Court nominees and how the two candidates would make their selections has been solidly on the sidelines and seems destined to remain so in the roughly five weeks remaining in the presidential race. Wouldn't we all like to hear how Obama feels about Chief Justice John G. Roberts Jr., whose confirmation he voted against, given that Roberts’ support was key in the high court's decision to uphold "Obamacare"?
Don't expect much talk in the final days of the campaign about the court, though. That's principally because the economy and job creation have blotted out most other issues in the campaign. But it's also because neither candidate particularly wants to talk about the court. It’s hard for either Obama or Republican challenger Romney to broach the topic in a way that sounds relatively non-ideological and appeals to the centrist voters they expect to decide the election.
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The kind of voters who follow the court closely tend to be those most interested in social issues. Several emotionally charged topics — led by gay marriage and of affirmative action in college admissions — will be taken up in the court term opening Monday.
Savage noted in his story the possibility of conservative stalwart Justice Antonin Scalia leaving the court and being replaced by a liberal Obama appointee could have a profound effect on a court that has had a 5-4 conservative tilt for several years. The replacement by a President Romney of liberal Justice Ruth Bader Ginsburg — who is 79 and previously suffered pancreatic cancer— would solidify the conservative majority, perhaps for years to come, especially if Romney could make other conservative appointments.
Though those changes are real possibilities, Obama already has the liberal voters who want a path cleared for gay marriage and for affirmative action to be OKd. Even if he doesn't talk about the court, Romney won’t lose many voters who oppose same-sex marriage and racial preferences in college admissions.
Even if the candidates did want to talk about those matters, it could be hard for them to make the subjects as immediate to many as the “kitchen table” matters that remain on the front burner. To stray much from jobs, buying power and the like — without being forced to do so by the media — might be to risk appearing unfocused on what polls show is the voters' top concern.
When forced to address questions about the court in the past, candidates have not done so well. Sarah Palin famously rambled and grasped for an answer when Katie Couric asked her to name a Supreme Court decision she disagreed with other than the Roe vs. Wade ruling that legalized abortion.
Democratic presidential hopeful Bill Richardson, asked to name a favorite justice of the past during a 2007 presidential debate, picked Byron “Whizzer” White. That became a problematic response for the one-time New Mexico governor because White opposed abortion rights and was sharply opposed to gay rights— positions anathema to the liberal Richardson.
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Even a former constitutional law instructor like Obama ventures into difficult territory if he starts ruminating on Supreme Court decisions, or justices, of the past.
The next likely venue for a court question for the two 2012 candidates will be the second presidential debate. Questions at the Oct. 16 debate at Hofstra University in New York will come from the audience and from moderator Candy Crowley of CNN.
Unlike this Wednesday's debate, designed to center on economic matters, debate N. 2 is open to all topics — foreign and domestic. One of the most important subjects facing the next president, the Supreme Court, might finally get an airing.