Federal judges are not elected by voters. Our constitutional process gives the president the authority to nominate federal judges and then appoint them if the Senate consents.
Yet both Republican and Democratic voters place great importance on who fills open federal judgeships. Thus, the kind of judges a presidential candidate will nominate has become a major electoral issue. It might have been the deciding factor in 2016 in favor of former President Donald Trump. It might be again either for him or for Vice President Kamala Harris on Nov. 5.
Why voters care so much about this matter should be apparent. The judiciary possesses extensive power to facilitate or thwart the policy agenda of either party. It also can forge its own path on certain matters.
This power is heightened in times of close partisan division within the elected branches. Closely contested presidential elections and narrowly divided Congresses don’t allow much legislation to pass. This setup also makes it highly unlikely that either of the elected branches could mount a forceful response to a controversial decision.
The recent judicial opinions overturning Roe v. Wade and significant precedents about the administrative state showcase the impact the Supreme Court makes. They have, in a few short years, remade the policy landscape on these and other issues. The interest in and pressure on this court is as high as it has been in generations.
But we voters must realize that this power extends down to lower federal courts as well. Hundreds of thousands of cases come before the federal judiciary. A small fraction of those cases make it to the Supreme Court. But the rest still have their day in court, making the district and circuit court judges the last words on these pieces of litigation. How the law gets interpreted in many instances depends on these judges, not the more famous nine occupying our nation’s highest judicial bench.
The preceding observations all assume significant and discernable differences between possible Trump and Harris nominees in 2025 and beyond. By those differences, we can pinpoint another reason for supporting or opposing one of those candidates. Figuring out the difference between their appointees at these lower levels can be tricky and time-consuming, much more so than categorizing the nine Supreme Court justices. Recently, some have tried to discern the ideology of lower court judges according to the campaign contributions they made prior to being barred from doing so after their appointment.
But this shortcut makes a fundamental mistake regarding the structure and character of our constitutional system. It assumes that judges comprise a mere extension of the partisanship on display in the elected branches and in media outlets. True, judges are human beings and citizens, meaning they tend to have right- and left-leaning preferences. Judges can and should express such preferences at the ballot box just like their fellow citizens.
However, the nature of judicial power demands they leave such partisan preferences outside when donning their judicial robes. This power, as our founders intended it, does not implement the will of the judges but instead the will of the lawmakers — legislative bodies and the people they represent. This point proves true even when judges void legislation as unconstitutional since the Constitution itself is a legislative act — the highest law of the land.
The real divide in the judiciary comes between those who follow the textual intent of the laws they apply and those who don’t. Those who do dedicate themselves to a careful parsing of the laws written and the context in which they were ratified. Those who don’t can fail from a variety of factors, including bad approaches to textual interpretation and even from policy preferences seeping into their decisions.
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So, there should be no shortcut to figuring judges out based on past financial contributions. Instead, we should do the hard work of fleshing out how they approach the exercise of their constitutionally given judicial power. Along these lines, we should be wary of any judicial nominees who can easily be pegged based on campaign donations.
That doesn’t look like the ground for the impartial administration of justice according to law. Instead, it looks like something the Constitution seeks to avoid.
Adam Carrington is an associate professor at Ashland University.