E-Net News

In My Words: 'Voting on the Future of the Court'

Assistant Professor Dion Farganis reminds newspaper audiences that more is at stake in November than simply who occupies the White House.

Assistant Professor Dion Farganis


The following column was published recently by the (Burlington, N.C.) Times-News, the Gaston Gazette, the Shelby Star and the (Durham, N.C.) Herald-Sun via the Elon University Writers Syndicate.


Voting on the Future of the Supreme Court
By Dion Farganis - dfarganis@elon.edu

Ever hear of Brett Kavanaugh or Kamala Harris? You may be about to put one of them on the highest court in the land.

Kavanaugh is a respected federal judge on the U.S. Court of Appeals for the D.C. Circuit. Harris is California’s attorney general, the first woman and the first African-American to hold the position in that state. Both have been mentioned as possible replacements for the next United States Supreme Court vacancy.

Judicial appointments are never near the top of the list when Americans rank the issues that sway their presidential preferences, but as we saw this summer with the controversial health care law known as “Obamacare,” we don’t vote just for the candidate who signs the bills.

By extension, we vote for the men and women who ultimately decide whether laws will stand.

If President Barack Obama wins reelection, his nominee for a court vacancy will probably be someone like Harris, whose record reflects a commitment to liberal and progressive causes. If Mitt Romney prevails, expect him to nominate a judge like Kavanaugh, a favorite in conservative circles for his work in the Bush White House and his rulings as an appellate judge.

And a vacancy on the court is almost a sure thing between now and the next election cycle.

The current members on the Court are relatively old. Stephen Breyer is 74, Anthony Kennedy and Antonin Scalia are both 76, and Ruth Bader Ginsburg is 79. Though appointed for life, the average age at retirement from the high bench is about 78.
While Ginsburg has given the only public hint about stepping down, saying in several interviews that her goal was to make it until 2015 to match the lengthy tenure of former justice Louis Brandeis, it seems safe to assume that one or more replacements will need to be made before 2016.

Any shift in the Court’s ideological balance could have major effects on everything from abortion rights and same-sex marriage to affirmative action and gun control.

This is where voters come in.

There is reason to believe that many Supreme Court justices try to retire “strategically,” choosing to leave the Court when they think that the president will nominate a like-minded replacement. Should Obama win in November, the odds are better that Breyer would retire along with Ginsburg, while a victory by Romney makes it more likely that Kennedy and Scalia would step down.

The justices themselves, of course, deny they make these decisions based on politics, but the evidence is hard to deny. In recent decades, liberal justices have consistently retired during Democratic administrations, and conservatives have stepped down when Republicans hold the White House.

Voters select presidents, and presidents nominate Supreme Court justices. Nominees have to be approved by the Senate, yes, but confirmations are much more common than rejections.

As voters, we all have different issues that matter to us most. The 2012 presidential election gives us a rare chance to exert some influence of our own over the Supreme Court.

You might want to read up on Kavanaugh and Harris. Their names won’t appear on the ballot, but their potential impact on your life is hard to overstate.


Elon University faculty with an interest in sharing their expertise with wider audiences are encouraged to contact Eric Townsend (etownsend4@elon.edu) in the Office of University Communications should they like assistance with prospective newspaper op/ed submissions.

Viewpoints shared by this syndicate are those of the author and not of Elon University.

Eric Townsend,
9/14/2012 12:39 PM