As we and many others have noted, the judges issue was one of the keys to GOP electoral success in the elections of 2000, 2002, and 2004. It "was one of Bush's best issues in the campaigns of 2000 and 2004" (Larry Sabato, University of Virginia), and on the Senate level, there’s “no doubt” the GOP “won races all throughout the country” using the issue (Karl Rove). In 2006 and 2008, the GOP shied away from the judges issue and suffered big losses. Undoubtedly, there are many reasons for those losses, but a careful look at yesterday’s election results and exit polls demonstrates that failure to emphasize the judges issue was an important contributing factor. Consider the following:
1) What are the first issues that come to Americans’ minds when the role of the courts is discussed? Abortion, gay marriage, and affirmative action are at the top of the list. This year, nine state ballot initiatives
– in California, Colorado, Florida, Nebraska, South Dakota, Arizona and Arkansas – dealt with those issues. Each of the nine initiatives were motivated largely or wholly by court rulings that were perceived to be examples of liberal judicial activism, specifically U.S. Supreme Court rulings on abortion and affirmative action in college admissions, and the reality or possibility of state supreme court rulings on gay marriage. In six of the nine cases, the conservative position on the initiative – e.g., against gay marriage in California – ran ahead of John McCain. Even if McCain and his GOP colleagues were squeamish about tackling these controversial issues directly, they could have used the judges issue to tap into the conservative leanings of voters reflected in the initiative results.
2) A possible
counterargument is that, while voters are concerned about these social issues, they just don’t care about the courts. Yesterday’s exit polls prove that argument wrong. Even without much attention given to the judges issue this fall, 75% of voters nationwide said that Supreme Court appointments were a factor in their vote for President, and 53% said it was an important factor
. Those figures shouldn’t surprise anyone given that even the liberal ABA found that Americans, by an almost 2-to-1 margin, believe judicial activism “seems to have reached a crisis” (4 ABA Journal eReport 40, 9/30/05).
3) It’s also possible that GOP candidates avoided judges and social issues in the belief that this was a change election rather than a values election. If so, they were mistaken. While 34% of voters nationwide said that the ability to “bring change” was the candidate quality
that mattered most in the presidential race, nearly as many – 30% – said sharing “my values” was most important. And that’s in a campaign in which values issues received little attention. Had Sen. McCain put greater focus on values issues – for example, by talking more about judicial activism – he would surely have benefited, since voters focused on values supported McCain over Obama by more than a 2-to-1 margin (66% to 31%).