Much has been made in this election of the president's power as commander-in-chief, head of the executive branch of government, and leader of the free world. Largely ignored, however, has been one of the most important presidential powers of all: the appointment power. If elected president, each candidate would have the power to nominate, among others, new justices to the United States Supreme Court. And while no justice has announced his or her intention to retire any time soon, with several justices in their 70s and 80s, a retirement (or even a death) may be imminent. Lest you respond, "Well, Justice Ginsburg and Justice Breyer won't retire during a Republican presidency," 20 years ago an elderly and ill Thurgood Marshall was too infirm to continue on the court and left George H.W. Bush to appoint his replacement. That replacement was Justice Clarence Thomas.
Mitt Romney has said that, if elected president, he would nominate justices like Antonin Scalia and Clarence Thomas to the Supreme Court of the United States. In fact, Romney is advised by Robert Bork, a failed Supreme Court nominee who is known for his extreme conservative Constitutional views. Given that the average longevity of a Supreme Court justice is now just over 25 years, whoever is appointed will likely serve for six presidential terms. The stakes, therefore, far transcend the current election. Tying his views of the Constitution to the views of Scalia and Thomas, however, should hurt, not help, Mitt Romney's desire for election to the highest office of the land.
Do we want a president who wants to turn back the clock on women's equality to the days of back alley abortions, who would allow states to deny to gays and lesbians the constitutional right to engage in intimacy (much less marry), who would ignore hundreds of years of discrimination and want judges to strike down laws passed by majorities to help minorities, who would lower the wall between church and state, and who would embrace an enlarged view of the presidency that would remove the Court as an effective protector of individual rights?
Both Scalia and Thomas are on record as stating that Roe v. Wade should be explicitly overruled and the issue of abortion returned to the states. With their view to prevail, Republican controlled legislatures in the vast majority of states would make abortion unlawful (maybe even without exceptions for rape and incest). Tragically, we know that outlawing abortion would not stop women from having abortions; it would just drive the practice underground, making abortions dangerous and costly for millions of women who could not travel for basic health care.
Both Scalia and Thomas have argued that gays and lesbians do not have a constitutional right to engage in private, consensual sex, even in their own homes. Although it is unlikely that states would impose and enforce such bans, the notion that police officers could throw adults in prison for consensual sexual encounters provides an important window into how extremely narrow Scalia and Thomas view the constitutional rights of those different from themselves -- and just how different they view gays and lesbians to be. Indeed, Scalia has written that homosexual sex is akin to "bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity." Obviously, neither justice would be troubled at all by bans on same sex marriage or any other forms of overt discrimination (such as bans on adoption) against gays and lesbians.
Scalia and Thomas believe that any and all uses of racial classifications by elementary and secondary schools, public colleges and graduate schools violate the Equal Protection Clause of the Constitution. As Justice Thomas wrote only five years ago in a case about elementary school assignments, "[E]very time the government... makes race relevant to the provision of burdens or benefits, it demeans us all." Neither justice's views is affected by the social science that has shown again and again that diversity improves the educational experience of both white students and students of color, helps to foster a diverse middle class, and serves to remedy the decades of opportunities lost to people of color through government-sanctioned discrimination. Moreover, neither justice seems the least bit troubled that his views on affirmative action are inconsistent with the original intent of the Fourteenth Amendment. Neither justice has ever tried to harmonize their views on affirmative action with their oft-stated admonition that history should guide constitutional interpretation.
Justices Scalia and Thomas have said that the president should have complete and unreviewable authority to fight terrorism, including rounding up non-citizens all over the world and detaining them in Guantanamo Bay indefinitely without meaningful judicial review. Neither justice agrees with Justice Kennedy's views expressed in the last Supreme Court decision on terrorism that the separation of powers and preservation of liberty are best served when the Court stands as a backstop to unilateral executive detention of individuals on property controlled by the United States.
Finally, both Justices Scalia and Thomas believe that strong symbolic endorsements of religion are constitutional under the First Amendment. In fact, Justice Thomas does not believe that the Establishment Clause even applies to the states. Were Romney to add another justice to the Scalia/Thomas wing of the Court, states could put the 10 Commandments in every classroom and courtroom, crèches in every public park, and creation science in every curriculum.
In light of the current filibuster rules in the Senate, Democrats and probably even some Republicans would likely fight a nominee who held the views of Scalia and Thomas. But the stakes of such a battle would be very high across a wide spectrum of important constitutional law issues. Mitt Romney's intended use of the appointment power to make the court even more conservative is reason enough to vote against him for president.