One reason that the press hasn’t always given us such clarity on the judicial ramifications of presidential campaigns past, I’d argue, is that there’s a general sense that issues of jurisprudence aren’t fully “political” in the way that issues of, say, healthcare or tax policy are. As a result, it’s seen as not quite fair for the public debate to get too specific about how a candidate’s appointees might be expected to rule on controversial issues. We see this most clearly during Senate confirmation hearings, in which nominees are generally given a pass by the press about their exact views on controversial political topics and legal cases. But it also comes into play during campaigns, where the press generally accepts the candidates’ dog-whistle statements to its activist supporters about “empathy” or “not legislating from the bench,” without requiring them to be more specific, or sketching out for ordinary voters what these statements really mean in terms of their appointee’s likely decisions and how those decisions will affect the lives of ordinary men and women.

This approach is out of sync with the reality of modern politics. George W. Bush came to office with the goal of using the legal system to achieve certain specific outcomes favored by his administration or its supporters—expanding presidential power, and strengthening the legal standing of corporations, among others. He was largely successful in that effort, and there’s no reason to think that this year’s candidates won’t take the same approach. The legal system is now another arena in which to achieve political and policy goals—if indeed it was ever anything else.

Given this reality, the press should accept that judicial appointments are just as political as any other issue in the campaign, and should pull no punches in spelling out the real-world consequences of the likely rulings to be made by the candidates’ appointees.

Turning Point:

Part One: Scandal! Oh, Nevermind

Part Two:Let’s get serious

• 1
• 2