Remember when Ralph Nader ran for President in 2000 and claimed not to see any difference between George W. Bush and Al Gore, Jr., as presidential candidates, describing them as “Tweedledee and Tweedledum”? Remember when cool liberals like Susan Sarandon and Tim Robbins appeared at Nader’s rallies to show how anti-corporate they were, or how pure their liberalism was, or whatever the heck they thought they were doing?
Well, does someone seriously think that Al Gore would have appointed John Roberts, Jr., or Samuel Alito, Jr., to the U.S. Supreme Court, the way Bush predictably did?
I don’t want to get into the arcane arguments about whether Nader’s candidacy actually made the difference in Florida or Ohio in November 2000. The point is that every time I hear liberals wearily complaining that they see no difference between the major party candidates, I want to wring their necks. And when I hear it in the future, I’ll ask them to listen to Tuesday’s oral arguments on the constitutionality of the Affordable Care Act, a/k/a Obamacare.
The federal judiciary matters, and the Supreme Court matters most of all. To affect the composition of the federal judiciary you need to win Presidential elections. Republicans have understood these simple truths since at least the Ronald Reagan administration. Democrats — incomprehensibly — have not.
This is why I have little patience when I hear a liberal today whining about the tenor of Tuesday’s arguments — that precedent isn’t being followed; that judicial restraint is being trampled upon; that the New Deal is being repealed (which it may be).
Sure, it’s painful to hear smart lawyers making arguments you don’t happen to find convincing. There’s always a temptation to think the justice or advocate making it secretly sees things exactly the way you do, and is just trying to pull a fast one. How else could someone shrewd enough to make such insidiously misleading arguments be gullible enough to fall for them?
Unfortunately, that’s how constitutional arguments always seem to those on the losing end of them. It’s an illusion. It has something to do with the way our brains are hardwired. The conservative justices, in good faith, think your arguments are just as crummy and disingenuous as you think theirs are. They really do.
The lesson to learn here is the one that conservatives learned at least by the time President Ronald Reagan took office, and one to which liberals have been incomprehensibly impervious and obtuse for more than a generation: the federal judiciary is the most important institution shaping everyday life in our country, and to affect its composition you need to win Presidential elections.
I put it this way last year in a profile of Chief Justice John Roberts: “The numbers have simply caught up with liberals . . . . For 42 years left-of-center Americans have been flirting with disaster vis-à-vis the Court, and now they’ve finally married it. Since 1968, Republicans have held the White House for twice as many years as Democrats (28, compared with 14), and they’ve made three times as many appointments to the Supreme Court (12 to 4).” With President Bush’s 2006 replacement of the moderate Justice Sandra Day O’Connor by Justice . . . Alito, a dependable conservative vote, the seesaw shifted.
As for the lower courts — fuhgeddabouddit. They shifted long ago. From the time Reagan took office 1981 until the end of last year, Republican presidents have appointed 906 judges, while Democratic presidents have appointed 505, according to the Administrative Office of U.S. Courts.
The reason conservatives get how important the federal courts are, while liberals don’t, is simple. They got stung with a series of rulings they never got over. Roe v. Wade is the obvious one, but Miranda v. Arizona was another, and for the religious right, the rulings banning prayer in public schools are still probably the ones they seethe over the most.
Now maybe liberals are getting it, and for the same reason. Now they’ve been stung: with Citizens United, with Parents Involved (upsetting liberal assumptions about racial balance and affirmative action), and next, possibly, with the spectacle of five unelected men striking down the most important Congressional social legislation in our lifetime.
If you end up being unhappy with the outcome of the Affordable Care Act case, spare me your trenchant and indignant rebuttals of Scalia’s arguments about broccoli. Just get your tail to the polls in November.