The Morning: The 2024 stakes for judges - frederick.lapides@gmail.com

October 31, 2024

Happy Halloween. Today, we’re covering how the election could change the courts — as well as the candidates’ closing arguments, floods in Spain and a haunted house. —David Leonhardt

A view between two red curtains of benches. Nine leather chairs sit on a raised platform at the front of the room, with four columns behind.

Inside the Supreme Court. Amir Hamja/The New York Times

	THE STAKES

Holding court

On Tuesday, Americans will elect the next president and hundreds of Congress members. In doing so, voters will also shape the third branch: the judiciary.

Federal judges — whom the president picks and the Senate confirms — have become even more powerful in recent years as a polarized Congress has failed to pass major laws on many issues. As a result, the judiciary has shaped policy on abortion, immigration, guns, voting rights and more.

Today’s newsletter explains how the election could change the courts for decades to come.

The Supreme Court

Donald Trump appointed three Supreme Court justices as president. If he wins next week, he may get more appointments than Kamala Harris would have gotten.

History suggests one reason: In recent years, judges have tended to retire in time to let the president they prefer fill their seats. The oldest sitting justices today — Clarence Thomas, 76, and Samuel Alito, 74 — are Republican appointees. If they stepped down during a second Trump administration, the president could choose younger replacements who would cement conservative control of the court for decades.

The Senate is another reason. Republicans seem more likely to control the chamber next year. If they do, they can block Harris from filling a vacancy, much as they did Barack Obama in 2016. “If he were re-elected, he’d probably get to appoint one if not two members to the United States Supreme Court,” Harris said of Trump last week. She did not say how many appointees she may get if she wins.

Harris also wants to enact term limits and an ethics code for the court, given the revelation that Thomas and Alito accepted luxury gifts without disclosing them. That’s unlikely if Republicans control the Senate — and maybe even if Democrats do, thanks to the filibuster.

Courts, remade

What about lower courts?

Judges can serve for life. So the more a president appoints, the more he or she can shape the country. The Supreme Court hears only about 80 cases per year, meaning that lower courts are often the final arbiter on many issues. They set precedent on criminal justice, bankruptcy proceedings, corporate disputes and antitrust enforcement, and on whether federal laws and rules are constitutional.

In a typical four-year term, a president replaces about one-quarter of the country’s 870 active federal judges, across both federal district and appeals courts. Trump filled 231 vacancies, and President Biden may equal that number before the next Congress takes over.

Partly as a result, Republican and Democratic presidents have each appointed about half of the judges on federal courts. The appeals courts lean slightly Republican, while the district courts lean Democratic (if you count senior judges who work less but still hear cases), according to Russell Wheeler of the Brookings Institution. The next president will likely be able to tip that balance, letting one party’s appointees make up a clear majority of judges.

A chart showing the number of confirmed federal judges nominated by Democratic and Republican presidents. Six of the nine Supreme Court judges were nominated by Republican presidents. The split by party line is even in the Court of Appeals, where Democratic and Republican presidents nominated 78 judges each. Just over half of district court judges were nominated by Democratic presidents.

By The New York Times

The next president will also alter the courts’ racial, ideological and professional makeup. Under Trump, 76 percent of judicial nominees were men, and 84 percent were white, according to an analysis by my colleagues. Many had ties to the Federalist Society, a conservative legal group. Biden’s appointees have been 63 percent female and 61 percent nonwhite. He has prioritized nominees who served as public defenders and civil rights lawyers, and his picks have tended to be more liberal than those of past Democratic presidents.

A second-term Trump might have the edge over a first-term Harris because a Republican-controlled Senate could block some of her appointees. Perhaps moderate Harris nominees would get through, though: Most of Biden’s appointees received bipartisan support. Another potential area of agreement is a bipartisan measure to incrementally increase the total number of federal district judges to ease rising caseloads. The bill passed the Senate in August but has yet to receive a House vote.

Harris hasn’t specified whom she might nominate if given the chance. Trump boasts about his first-term nominees and suggests he’ll name more people like them.

What’s next

Even as the election will shape the judiciary, the judiciary may also shape the election. As in 2020, Republicans and Democrats have already asked federal judges, including those on the Supreme Court, to resolve disputes about ballots before Election Day. Their rulings could determine the outcome of a close race.

Perhaps related, Americans’ faith in the courts has eroded in the Trump era. Unpopular rulings on elections, abortion, presidential immunity, guns and other issues — as well as the criminal cases against Trump, which will likely move forward if he loses — have driven down public trust in the Supreme Court and the justice system, polls suggest.

That decline may be hard to reverse no matter which candidate prevails — especially if the courts play a role in deciding the winner.

For more

The Supreme Court let Virginia remove about 1,600 people suspected of being noncitizens from its voter rolls. The Justice Department had argued that the purge could remove eligible voters.
Pennsylvania Democrats sued Erie County, alleging that voters who requested mail ballots hadn’t yet received them or had received the wrong one.

THE LATEST NEWS

Democratic Campaign

Kamala Harris in a black suit waving at a crowd.

Kamala Harris in Pennsylvania. Ruth Fremson/The New York Times

Harris visited three battleground states to deliver her closing argument: that she can unite the country. “The vast majority of us have so much more in common than what separates us,” she said in Raleigh, N.C.
Harris distanced herself from Biden’s remarks that seemed to call Trump supporters “garbage.” Biden clarified that he had meant a Trump surrogate who made a racist joke. Harris said, “I strongly disagree with any criticism of people based on who they vote for.”
Bernie Sanders, campaigning for Harris, has taken a darker tone than she has. He denounced elites and the status quo as “disgraceful” and “disgusting.”

Republican Campaign

Donald Trump in a hi-viz orange vest rides in a truck cab.

Donald Trump in Wisconsin. Doug Mills/The New York Times

Trump wore a garbage collector’s vest during a Wisconsin rally, criticizing Biden’s “garbage” comment. Brett Favre, former Green Bay Packers quarterback, campaigned with him.
House Speaker Mike Johnson suggested that Republicans would try again to repeal the Affordable Care Act if Trump wins. “No Obamacare?” a voter asked. “No Obamacare,” Johnson responded. Trump’s campaign disavowed the remark.
In his appeals to Black and Latino voters, Trump is pitting them against immigrants and sometimes against each other.
Robert F. Kennedy Jr. told supporters that Trump had promised to put him in charge of public health agencies.
A notable number of former Trump aides have turned on him and said he should not be president again. Here is a list, with their comments.

Voting

Michigan officials charged a noncitizen for registering and illegally voting in Ann Arbor. They called it “an extremely isolated and rare event.”
Michigan also removed a local election official who said he planned to count ballots by hand, despite rules against it. The official has ties to activists who spread conspiracies about voting machines.
The police in Florida arrested an 18-year-old Trump supporter for threatening two Harris supporters with a machete at an early-voting site.

MORNING READS

A room in a haunted house with scary busts above a fireplace and skulls on a side table.

In New York. Tony Cenicola/The New York Times

Fake blood is expensive: This haunted house in TriBeCa costs $45 to enter. The owners explained what goes into that ticket price.

Trick or treat: You may eat a lot of sugar this week. See how it will impact your body.

Social Q’s: “Our fun friend bails on dinner dates but still sends her dull husband.”

Lives Lived: John Gierach, a fly fisherman, was as skilled with words as he was with a rod and reel. Gierach wrote hundreds of articles and more than 20 books, including “Even Brook Trout Get the Blues” and “Sex, Death and Fly-Fishing.” He died at 77.

SPORTS

A batter hits a baseball toward the outfield.

Mookie Betts connects for the Dodgers. Major League Baseball

World Series: The Los Angeles Dodgers are champions after beating the New York Yankees 7-6 in Game 5.

N.F.L.: The Carolina Panthers announced that Bryce Young, the No. 1 draft pick in 2023, would remain the starting quarterback for now, despite Andy Dalton’s return to practice.

N.B.A.: Bronny James, son of LeBron James, scored his first career points last night in Cleveland, where the 20-year-old grew up.

ARTS AND IDEAS

A grainy, moving image of a face covered in a white mask with a spirals painted on its cheeks.

Lionsgate

“Saw,” the horror movie about a serial-killer-slash-taskmaster, was released 20 years ago this week. The film’s sequels ratcheted up the disgust, and reveled in it, earning them the label “torture porn.” But the original “Saw” was more interested in morality than gore, Annie Aguiar writes. Read her retrospective.