Judgment calls

This is the 18th in a series of classic columns (edited for space) by Joel Belz. In this Sept. 18, 2004, column, Joel wrote that voters should consider future court appointments when choosing a president. After winning reelection in 2004, President George W. Bush would appoint John Roberts and Samuel Alito to the Supreme Court. Alito would become one of the votes to overturn Roe v. Wade.

Only two issues, we’re told again and again, really matter to voters this year: The Economy and The War. We capitalize them both because the experts tell us that nothing else compares in importance. But if I had to limit my thinking to just one issue, I’d think instead about The Judges. That’s the issue that will really matter for those who inherit the society we leave behind in 10, 20, or 30 years.

When you focus on The Judges, it’s easy and even somewhat appropriate to get sidetracked with the discussion about the Big Four—the four oldest members of the U.S. Supreme Court. They are John Paul Stevens (84), William Rehnquist (79), Sandra Day O’Connor (74), and Ruth Bader Ginsburg (71).

Only God knows what will happen to the Big Four over the next four years (or to any of the other five ­justices) in terms of retirement, infirmity, or death. But we’ve gone 10 years since the last vacancy on the court, the longest gap between appointments since 1823. Almost certainly, the president elected on Nov. 3 will shape the court for a significant period to come.

But it’s easy, as I say, to get sidetracked with possible Supreme Court appointments and to forget the importance of the dozens of lower-court appointments a president also makes. On this front, there’s no uncertainty and no waiting period. In any presidential term, at least 100 federal judges need to be replaced—and the character of their findings on dozens of issues profoundly shapes the ethical and moral structure of our nation.

But some issues are more important than others—and no Christian need apologize for focusing on just three key questions to determine whether a judge might be good or bad for the society of the future. Abortion, marriage, and education transcend all other issues.

Abortion, of course, has to do with the foundational right to life itself. Sometime, almost certainly, we will look back and compare our present national blindness on this issue to our earlier blindness on slavery or our more recent blindness toward the Holocaust. But until then, what conceivable qualifications or sensitivities in a candidate for the bench might possibly balance a person’s willingness to tolerate the continued quiet slaughter of tiny humans? Let’s get over our embarrassment at being noisy about the issue.

Marriage is the hot new issue. No one saw it coming in all its ugly detail until the Supreme Court ruled in 2003 that Texas could not outlaw homosexual practice. That crack in the dam led to a flood of wild new initiatives that would be unthinkable except for the fact that we’ve spent two decades populating our courts with activist judges. Even a tolerant society should understand that some boundaries need to be preserved.

When I include education in my list of transcendent issues, I’m not referring to the typical call for more resources for education. But while government resources are being spent to shape the moral outlooks of the nation’s children, it should be done with equity and justice. Such fairness is ignored when non-state schools are denied the same resources awarded to state schools.

I know that electing George Bush is no guarantee that the judges he will appoint will take this short list seriously. I’m aware that a Democratic president gets the blame for only two of the nine justices now on the Supreme Court, and that two of Ronald Reagan’s three appointments have been profound disappointments on key issues. I know that all this is a little bit chancy.

I also know how little is uncertain about the appointments John Kerry would make. With him, my short list wouldn’t even have a chance.