The substance of Erwin Chemerinsky's op-ed in the L.A. Times has been my mantra for months now. (He's the dean and professor of law at the UC Irvine School of Law.) He emphasizes the long-lasting effects of both Supreme Court appointees and those placed on the lower federal courts, and of course, the obvious contrast between Mitt Romney and President Obama.
Imagine, for example, if there were no Justices Thomas, Alito, or Scalia on the Supreme Court. Imagine the election without the 2010 Citizens United ruling. The person in the White House makes all the difference.
Chemerinsky takes it from there. Please read the whole thing:
The future of the Supreme Court is the forgotten issue in this year's presidential election. This is surprising and disturbing because a president's picks for the federal judiciary are one of the most long-lasting legacies of any presidency. [...]
[I]f John McCain had been elected in 2008 and replaced David H. Souter and John Paul Stevens, the court surely would have upheld Arizona's restrictive immigration law, SB 1070, in Arizona vs. United States (2012), and there would be six votes on the court to eliminate affirmative action in Fisher vs. University of Texas, which was argued on Oct. 10. [...]
Romney has expressly said that he wants to see Roe vs. Wade overturned, while everyone expects that any Obama nominees to the court would vote to affirm it and keep a constitutional right to abortion. [...]
On the other hand, if Obama is reelected and has the opportunity to replace, say, Scalia or Kennedy, there would be a liberal majority on the court for the first time since 1969. It is likely that these justices would reconsider Citizens United and undo the devastating effect that this decision has had on our political system in allowing unlimited corporate expenditures in elections. There surely would be a majority to allow marriage equality for gays and lesbians, though this may already exist if Kennedy is willing to join the four liberal justices in finding such a right.
But the lower courts are extremely powerful in their own right. The appeals courts most often make the final decisions on cases that affect all of us. As Chemerinsky notes, federal district court and court of appeals judges also have life tenure and can, and do, remain on the bench for decades.
Our individual liberties, civil rights and access to the courts are at stake. Yet very little has been said about who our next president would want on the Supreme Court, and how their choices could change our lives for generations. And that omission is a crime.