You Might Have Missed It For The Insults, But An Important Question About Judges Was Asked Last Night

Given the events of the past few days, there was relatively little hope that last night’s presidential debate would turn into a substantive discussion of policy issues. Indeed, The Washington Post noted that the night was dominated by insults, and its print edition called the event a “dark, bitter faceoff.”

Americans United hoped that some issues we believe are very important – the use of religious liberty as a vehicle to discriminate, the proper role of houses of worship in politics and the efficacy of private school voucher plans, among others – would come up. We even submitted a question about religious freedom and discrimination online.

Alas, these issues were not discussed.

There was some talk about Republican nominee Donald Trump’s call for restricting Muslim immigration into the United States, a scheme Democrat Hillary Clinton rightly labeled offensive to American values.

Near the end of the debate, a member of the audience asked a question that has been overlooked but is crucial: What kind of judges will you put on the Supreme Court?

This question isn’t theoretical since we have a vacancy on the high court right now. The court remains deeply divided on church-state issues. A new appointee could shift the balance decisively for years.

Appointing federal judges is one of the president's most important duties.

Clinton correctly identified this as “one of the most important issues in this election.” She singled out legal abortion and marriage equality as two issues that could be overturned if a conservative justice joins the court.

“I think that would be a terrible mistake and would take us backwards,” she said.

Trump praised the late Justice Antonin Scalia, telling the crowd, “I am looking to appoint judges very much in the mold of Justice Scalia. I’m looking for judges – and I’ve actually picked 20 of them so that people would see, highly respected, highly thought of, and actually very beautifully reviewed by just about everybody.” (Bizarrely, Trump spent the balance of his time attacking Clinton for not self-funding her campaign.)

Congress can pass a law, and the president can sign it – but if the law fails to comport with the Constitution, it won’t survive court review.  Federal courts often have the final say. That’s why the role of judges is so important.

Supreme Court vacancies tend to get a lot of attention, but it’s important to remember that the president has the power to appoint federal judges whenever there is an opening at any level.

The U.S. Senate must confirm these nominees. If a nominee secures at least 51 votes, he or she gets a seat on the federal bench. (The House of Representatives plays no part in the process.)

These lower-court judges are important because most cases never reach the Supreme Court. Every year, about 7,000-8,000 cases are appealed to the Supreme Court. The justices agree to review about 80. The rest come to an end in a federal appeals court.

Below the Supreme Court, there are 13 appellate court districts, and below those courts are 94 district courts. Every year, federal judges retire, die or leave the bench for other reasons. Thus, a president – even one who serves just a single term – has the potential to profoundly shape the federal judiciary. Indeed, during President Barack Obama’s eight years in office, some appellate courts have moved from being very conservative to moderate.

Last night’s debate may have passed in a blur of insults and ill-will – but let’s hope the question about the Supreme Court didn’t get lost in the fog. It’s too important for that.