The Case Against Protest Voting (Remember Ralph Nader)

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. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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