The consensus among liberal lawyers and law professors with whom I have spoken is that a McCain Presidency would be a disaster for the issues about which we care. By the end of a four-year term (who knows whether McCain would have the vigor for a second term?), we would almost certainly have a Supreme Court with five, or even six, Justices solidly to the right of Justice Kennedy. Meanwhile, the lower federal courts would be overwhelmingly conservative. To be sure, I have also heard some moderate conservatives say that McCain's judges and Justices would be moderate, but I find this highly implausible. McCain doesn't seem to care much about the courts, and thus has essentially sub-contracted out that portion of his campaign to the more committed conservatives on these issues, a by-now well-established path for Republican Presidents.
What is to be done? Well, obviously, one thing that people who fear another four or more years of Republican appointments can do is to support Barack Obama, whether through campaign donations or otherwise. But what about Senator Obama himself? Can or should he be using the question of who will appoint judges and Justices as a campaign issue? Certainly, for mobilizing the base, yes. However, for the great mass of the electorate, I don't think this would be a wise political strategy. (Caveat: I don't have any expertise in political strategy, so take the rest of this post with a pillar of salt.)
Here's the problem, as I see it: Liberal positions on issues that come before the courts are not especially popular. To take a few recent examples, a majority of Americans are not enthusiastic about extending habeas rights to Guantanamo detainees, think the death penalty ought to be available for the rape of a child, and even if they think abortion should generally be legal, are okay with banning "partial-birth" abortion. I suspect that the liberal positions on statutory issues fare a bit better, but it's much harder for a politician to run on such issues and the stakes are lower.
Furthermore, for the average voter, the courts just aren't that high a priority, and I can't say that's the wrong judgment. If I did not have a strong professional interest in the subject, I wouldn't rank judicial appointments in the top five crucial issues facing the next President. Indeed, even with that strong professional interest, I'd put it at number five at the highest, behind: (1) mitigating environmental damage, especially global warming; (2) national security, including both the Iraq and Afghanistan wars and counter-terrorism; (3) steadying the economy; and (4) reforming health care.
In the past, I have noted how Republican candidates sometimes speak in code to mobilize religious conservatives on the courts. (My favorite example was when, in a Presidential debate, George W. Bush denounced the Dred Scott ruling as a coded signal that he would appoint Justices to overturn Roe v. Wade.) The reason they talk in code is that the full agenda of the legal right would be at least as unpopular with the electorate as the full agenda of the ACLU and the NAACP LDF. But those of us who support the latter agenda (or large chunks of it) need to understand that we're not going to get a Presidential candidate who emphasizes our issues on the stump, at least not one who is likely to win.
Posted by Mike Dorf