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DIAZ: Obama could achieve stacked Supreme Court in a second term

Voters should keep courts in mind on Election Day

- - Tuesday, October 23, 2012

When you are thinking about the next election, don't forget the third branch of government. The judicial branch, headed by the Supreme Court, is extremely important for all the issues we are concerned about this election. From the size of government to health care to taxes to foreign policy to religious freedom, the justices see it all, and their decisions affect you personally.

This term, the Supreme Court will deal with affirmative action, homosexual "marriage," terrorism and the right to vote, among other things. Considering the last term, one topic is enough to stress its importance: health care.

As has been reported elsewhere, the next president is likely to appoint at least two new justices to the U.S. Supreme Court. The average retirement age for a Supreme Court justice is 71. Justice Ruth Bader Ginsburg is 79. Justice Antonin Scalia and Justice Anthony Kennedy are both 76. Justice Stephen Breyer is 74.

If President Obama is re-elected and that prediction holds true, that means he would have appointed almost half the justices in his eight years in office. By contrast, Presidents George W. Bush and Bill Clinton each appointed two during their presidencies. The impact of that development cannot be overestimated.

When it comes to the types of judges they would appoint, the differences between Mr. Obama and Gov. Mitt Romney could not be more stark. Mr. Obama wants judges who believe in a "living Constitution" that changes with the times. He has said he wants judges to empathize with minorities, women and the disabled -- judges who will take the law where he believes it should go. He delivered on that belief with his two nominations to the Supreme Court.

Justice Sonia Sotomayor famously said that "personal experiences affect the facts that judges choose to see" and that she was a wiser judge because of her race. Justice Elena Kagan argued for the invention of a constitutional right to homosexual "marriage."

Mr. Romney, on the other hand, has voiced a desire for "judges in the mold of Chief Justice John Roberts, Justice Scalia, Justice Clarence Thomas and Justice Samuel Alito." He has promised judges who "will exhibit a genuine appreciation for the text, structure and history of our Constitution, and interpret the Constitution and the laws as they are written." Granted, he must follow through on his rhetoric, but that is the philosophy he has articulated throughout his campaign.

This is a crucial issue, but we should care about more than just the Supreme Court. Remember, there are only nine Supreme Court justices, and the number of cases they hear in a year is small. By contrast, there are currently 179 courts of appeal judgeships and 678 district courts judgeships, with many pushing for a significant expansion in federal judgeships due to an increasing work overload. There are also 352 bankruptcy judgeships and 551 magistrate judgeships.

These men and women decide some of the most important issues in our lives. Even though other judgeships are not determined by votes this November, we must pay close attention to the philosophical approach to nominations of those who get to choose them (the president by appointment and senators by advise and consent) so that we can hold them accountable.

While it is true that we will only be directly voting for the executive and the legislative branches, we will also be indirectly selecting the type of judges we will see (either protecting or encroaching on our freedoms) for years to come through the judicial branch. Hopefully, this issue will be discussed more in the remaining days so that it is fresh in people's minds as they go to the polls on Nov. 6.

Mario Diaz is legal counsel for Concerned Women for America.