Correction appended Oct. 13, 2016
For different generations of Americans, Rosa Parks and Jim Obergefell will be remembered as civil rights trailblazers. But how many of us remember the judges in their groundbreaking cases?
U.S. Judges Frank Johnson and Timothy Black ruled in cases where lower federal courts served as bastions for protecting the rights of people with no recourse to other branches of government. Their names are not widely known.
Who will be history’s next Judge Johnson, who voted in Parks’s case 60 years ago to strike down Montgomery, Alabama’s bus segregation law? Or the next Judge Black, whom the Supreme Court upheld last year when it declared a right to marriage equality nationwide?
These are core questions for Americans to weigh before Nov. 8 when we elect a president who will set the character and caliber of scores of appointees to these lower courts—and when we also determine control of the Senate, which has the power to confirm or reject these appointees.
With the Supreme Court hobbled by a longstanding vacancy and Senate Republicans setting records for obstructing President Obama’s judicial nominees, these issues matter now more than at any time in recent memory. Donald Trump and Hillary Clinton have begun a debate on the next Supreme Court majority. The lower federal courts, however, have remained off the radar.
That’s shortsighted. Each day, federal judges protect the Constitution, place a check on overzealous legislatures, and help Americans find justice. The U.S. appeals courts, especially, often render the final word on important questions of federal and constitutional law. They decide more than 30,000 cases per year, compared to about 80 decided by the Supreme Court. Their influence is only magnified as one seat on the Supreme Court continues to sit empty, which increases the likelihood that the nation’s highest court will deadlock and lower court rulings will stand.
Given how Congress works, presidents have a greater imprint in naming appeals courts judges. The impact can be staggering: when President George W. Bush left office, only one circuit court of appeal out of 13 had a majority of judges appointed by Democratic presidents, compared to nine that have a majority of Democratic appointees today. In recent weeks, Democratic-appointed appeals judges have had a big hand in striking down restrictive laws intended to suppress the vote in states across the nation this fall.
The record of Judge Johnson of Alabama, who served on both the district and appeals courts and now is deceased, shows the sweeping impact that a lower-court judge can have on millions of Americans. He was given a Presidential Medal of Freedom by President Clinton in 1995 for his “unwavering commitment to equality under law [which] helped dismantle segregation and bring our nation closer to the ideals upon which it was founded.'' There also were cross burnings on his lawn and death threats against him.
District Judge Black of Ohio relied on, and expanded, a prior Supreme Court decision when he recognized same-sex marriage in a death certificate involving a gay Cincinnati couple who had married out-of-state. An appeals panel disagreed. The Supreme Court, deciding Obergefell’s appeal, made marriage rights history.
The last three two-term presidents, including Obama, have nominated almost 400 judges each in the course of their terms. These judges have helped determine what the Constitution means for all of us. The next president will have at least 89 of these vacancies to fill on Day One.
In our volatile political landscape, the debate about filling a Supreme Court vacancy is highly important but not enough. Americans must decide soon which presidential candidate would select federal judges at all levels who will uphold civil rights, women’s rights, workers’ rights and other important rights. We must decide how the unrelenting Senate Republican blockade on qualified judicial nominees can be removed.
In short, we should ask ourselves which candidates for office will make it possible for us to populate our vital lower courts with the judges who, although their names often fade in memory, help define and protect our constitutional rights and freedoms for generations.
Aron is President of the Alliance for Justice Action Campaign.
Correction: The previous version of this article misstated which party's presidents had appointed the majority of judges on the circuit court of appeals when President Bush left office. It was the Republican Party.