Dahlia Lithwick has an article up on Slate asking why Democratic candidates are not talking more about the importance of who appoints judges. Lithwick seems genuinely puzzled. She reports on various theories floated at a recent American Constitution Society panel that included several distinguished legal scholars. The theories ranged from the observation that most people just don’t care about judges to the idea that Republicans have done a better job creating a coherent set of jurisprudential principles.
I am far from my area of expertise here, but I wonder if Lithwick and the panelists have missed a more obvious reason. It seems to me that in the majority of hot-button cases decided by the Supreme Court after Bush v. Gore, the Court has ruled in ways that a majority of Democratic voters prefer. Most notably, the Court has allowed affirmative action, invalidated sodomy laws, rejected the Bush Administration’s views on detention in terrorism cases, and found jurisdiction over Guantanamo. Given these decisions, most Democratic politicians probably see it as a challenge to run against the courts.
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