The Case Against Protest Voting (Remember Ralph Nader)

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This contest is about far more than Obama's drone strikes or Romney's corporate ties.

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Like so many others, I was moved by Conor Friedersdorf's piece last month here at The Atlantic, titled "Why I Refuse to Vote for Barack Obama," which touched profoundly on some of the great political and moral questions surrounding the coming election. I have been thinking about it for weeks now, knowing that I wanted to respond, but until just a few days ago it hadn't dawned on me how I could do so in a manner relevant to some public question. I think I've figured it out now, my argument against Conor's cri de coeur.

I am sure I was not alone in thinking, when I first read the piece, of Ralph Nader and his role in the 2000 election. Do I believe that all of the voters who cast ballots for Nader that year were acting in good conscience? You bet. Do I think that their votes helped deprive Al Gore of the votes he needed to win 270 electoral votes? You bet. Do I think that those Nader voters got a far worse deal from their government with George W. Bush than they would have with Al Gore? Yes. In theory, the "protest vote" is noble. In practice, in an imperfect world, it can be calamitous.

But the Nader example alone doesn't counter Conor's arguments against Obama (or slay the "protest vote" argument in general). There were many different reasons why Al Gore lost that election, including the fact that he didn't lose that election. And while we can speculate about what might have happened in the summer of 2001 during a Gore Administration, there is no way to know that his people would have prevented the terror attacks of September 11th. Iraq? Torture? Chief Justice John Roberts and Justice Samuel Alito? A different story.

If I vote, I will vote for Gary Johnson. I'll address this piece to the first part of Conor's phrase. Everyone in America who can ought to vote. Even people who can't stand any of the candidates ought to vote for one of them, the one they can live with, the one they feel is better than the other. That's not a cop out. It's just a simple reflection of the fact that there are great things at stake in this election, in every presidential election, which do not depend upon the morality or the soul or even the specific policies of the presidential candidates.

Take the federal judiciary, for example. One of the largely unasked and unanswered questions of this campaign is: Which man would you rather have over the next four years nominating (to lifetime jobs) the next 200 federal judges? Isn't that a serious question, the answer to which has little to do with the president's drone program or Mitt Romney's ties to corporate power? Isn't it a legitimate question you still have to ask once you've convinced yourself, as Conor evidently has, that neither candidate has otherwise lived up to expectations?

It's not a wonkish question. From the national voting rights fight on down, you'd have to be in a coma this cycle to be unaware of the vital power that federal judges hold in American life. And not just the justices of the United States Supreme Court, who decide only a tiny fraction of the cases that come before them, but the trial judges and lower appellate judges, who resolve 99.9 percent of the federal cases they hear. Which main candidate do you want to staff these benches over the next four years? Romney or Obama?

Conor is particularly vexed at what he perceives as the current administration's continued disregard for civil liberties. But take a look at the four most recent Supreme Court appointees. Between Bush-nominees Roberts and Alito, and Obama-nominees Kagan and Sotomayor, which pair is more likely to side with individuals in the legal war on terror? The Republican appointees sided with expanding executive branch power in the two Guantanamo Bay cases they have heard. Is there a legitimate reason to think the Obama appointees will do worse?

The Lower Courts

Since he was sworn into office, President Barack Obama has nominated 204 judges to the federal courts. The Senate, as crippled by rancor as it has been, has nonetheless confirmed 158 of those nominees.This is the legacy Obama will leave the country if he never gets another vote. Federal judges are the legacy every president leaves to the nation, and thus a legacy which every voter leaves to the nation. As Garrett Epps put it earlier this week in his good Atlantic essay on the topic, "Presidents come and go. Chief Justices remain..."

Counting these figures, federal records reveal that, in the past 35 years, Republican presidents have appointed 176 federal appeals court judges; the Democrats, 140. Republicans have successfully nominated 7 Supreme Court justices; the Democrats, 4. Democrats have appointed more trial court judges than Republicans over the period by a count of 611 to 559. So the federal judiciary is remarkably balanced right now -- and still more conservative than it was a generation ago. The question is: What do you want it to look like in 2017?

A vote for president is a vote for the person who essentially staffs another branch of government, the judicial branch, which has the constitutional power to strike down the actions of the executive and legislative branches.

We've seen what the Obama appointees look like on the federal bench -- they look like the America of today, not the America of 50 years ago. Rightfully maligned by the left for his lack of enthusiasm on judicial appointments, the president still has appointed at least 82 women to the federal bench, 31 of whom are women of color, In so doing, he has begun to address the enormous gender and race gap on the federal bench. Today, women make up roughly 31 percent of active appeals court judges and 30 percent of all federal trial judges.

And we know what the Romney appointees will look like. The candidate told us a few weeks ago that his models are the four most conservative justices of the Supreme Court. Three of the four voted to strike down the federal health care law, and none have shown an ounce of interest in challenging the president's drone policy. Vote for Romney and you will likely get, for example, a Justice Brett Kavanaugh, the former Bush lawyer now on the D.C. Circuit, which would effectively mean, among other things, the end of enforceable environmental regulations.

Under Obama, the next four years will see a continued push toward ideological balance on the federal appeals court, where Democratic appointees still lag their Republican counterparts by 36. Under Romney, the next four years will see a push toward ideological balance at the federal trial court level, where Republican appointees lag their Democratic counterparts by 52. Which new federal judges do you want ruling on new abortion laws, new voter ID laws, new immigration measures, new workplace rules? There is real contrast here.

And it's a contrast where context matters. Ever since Ed Meese figured out during the Reagan era that control of the federal judiciary would codify and enhance conservative power, the right has made judicial selections a priority -- and has been remarkably successful in shaping both the debate about judges and the judiciary itself. By contrast, Obama's approach to the judicial branch so far has been unfocused. The left is angry today at the lack of energy and ideology he's devoted to shaping the federal judiciary. Which tactic worries you more?

Conor talks about "deal-breakers." Fair enough. But how far must one look for a broken deal? And shouldn't a candidate's ability to select a decent judge count for something? Today, no reasonable observer can claim that the judiciary will look the same no matter which man wins this November. And so I submit that the clear choice this year between Obama and Romney over the judiciary is reason enough, alone, to justify voting for one or the other in this election regardless of what you might otherwise feel about their policies or personality.

The High Court

All of the above is true, and argument enough, without even factoring in the coming fight for the future of the Supreme Court. I believe we are nearing one of those rare times in the history of the court where meaningful ideological realignment is possible. The next four years, it's easy to argue, will either cement the conservative hold over the Court for another generation or break it apart. So the question is: Which man do you want to shape that future? Which man's legacy do you want to shape the lives or your children and your grandchildren?

Court-watchers are always so delicate when they talk about transition on the Supreme Court because what they are really talking about is the death, or illness, or incapacity, of the sitting justices. Two of the court's conservatives, Justice Scalia and Justice Anthony Kennedy, are 76 years old. Its most liberal member, Justice Ruth Bader Ginsburg, is 79 years old. Justice Stephen Breyer, another Clinton appointee, is 74 years old. The man who serves as president next term will almost certainly select at least two new justices -- and maybe more.

What do you want your Supreme Court to look like for your kids? Some people say that Chief Justice Roberts changed his mind on the Affordable Care Act so he could protect the court from political criticism, but let's not fool each other. That fight is never over and never far from the surface. If President Obama is reelected and a conservative justice dies or retires, the court's majority would change in an instant from 5-4 one way to 5-4 the other. You think the Robert Bork fight a generation ago was nasty? Wait until this one comes.

Many good writers have written already about how this election will impact the Supreme Court, so I won't belabor the point except to note, for Conor's sake, that Mitt Romney isn't likely to be the answer to his prayer for a president who is more humble about constitutional authority. As the constitutional scholar David Cole noted recently in the New York Review of Books, Mitt Romney still doesn't believe that water-boarding is torture or that the Bush Administration should have stopped its enhanced interrogation methods. Lean forward? Lean back?

If there is one thing I have learned this election season, one thing I've come to realize as I've covered all the voter suppression cases this year, it is that America's legal and cultural and social wars never really end. The rights and benefits, the freedoms and liberties, won in one generation, have to be fought for anew, and re-won, in another. That's why today, in 2012, we are fighting over contraception, and voting rights, and the Clean Water Act. The "long-term coup" James Fallows has written about? Which president's judges are most likely to stymie it?

A vote for president, you see, isn't just a vote that determines the policies and actions of the executive branch. It is a vote for the person who essentially staffs the leaders of another branch of government, the judicial branch, which has (and which has taken since Marbury v. Madison) the constitutional power to strike down the actions of the executive and legislative branches. A vote for president triggers in the winner the right and the ability to select good men and women to serve in high public office long past his tenure in the White House.

This is just one man's argument against the presidential "protest vote" in general and against Conor's "protest vote" in particular. Like many other things in life, voting can feel like a choice between the lesser of two evils. But believing so doesn't make those evils any less clear, any less real. Vote. Vote because the future of the judiciary is at stake. Vote because that means your constitutional rights are at stake. Vote because the differences between the two men are clearest when it comes to the judiciary. Vote even if you have to hold your nose to do so.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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