The Case Against Protest Voting (Remember Ralph Nader)

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

Lucas Jackson/Reuters

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.

Presented by

Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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