To The Readers Of The Metropolitan Corporate Counsel:
This Election Counts
Whatever your political persuasion, this election presents the potential for significant legal change on a number of fronts.
First and foremost, it is widely expected that the next President will have the opportunity to appoint between one and three Supreme Court Justices in addition to the usual complement of judges on the District Court and Circuit Court levels. Three of the four "liberal" Justices are 70 years old or more - including Justice Stevens, the oldest Justice at 88, while three of the four "conservative" Justices are 60 years old or less. Justice Kennedy, generally viewed as the swing vote among the Justices, is 72. Consequently, chances are that an appointment would arise as a result of a vacancy in the "liberal" wing or possibly Justice Kennedy's seat.
Thus, an Obama victory would be expected to preserve the status quo on the Court, while a McCain victory would have the potential to change the balance of power on the Court.
In the 2007-08 term, a number of notable cases were decided by 5-4 votes, including cases that invalidated Washington, D.C.'s gun control ordinance, ruled that Guantanamo detainees had a right to habeas corpus, and held that it was unconstitutional to impose the death penalty for child rape. In a typical Supreme Court term (if there is such a thing), the percentage of 5-4 decisions generally is between 20 percent and 30 percent. Thus, replacing a single Justice has the potential to change the outcome in a large number of cases.
Second, the outcome of Senate elections will have a direct effect on the legislative program, but will also have a secondary effect on judicial nominations that must be confirmed by the Senate. The current makeup of the Senate is relatively balanced - 49 Republicans, 49 Democrats, and 2 Independents who caucus with the Democrats. In November, 35 Senate seats will be filled. Of these, 12 are currently held by Democrats, and 23 are currently held by Republicans, five of whom are retiring. Either party would have to pick up two seats to have a majority, and 11 seats to have the 60 votes needed to invoke cloture in the Senate (without reference to the independents who caucus with the Democrats). If neither party controls 60 seats, judicial nominations will continue to be vulnerable to filibuster threats.
Third, the outcome of House of Representatives elections will, of course, affect the legislative program. All 435 seats in the House will be filled in November; the current breakdown is 235 Democrats, 199 Republicans, with one formerly Democratic seat vacant. Thirty-seven seats will be open - that is, the incumbent either retired voluntarily or was denied renomination in a primary. Of these, 8 were Democrats and 29 were Republicans. The Republicans would have to pick up 19 seats to have a majority and 91 seats to have a veto-proof majority; the Democrats, who have a majority in the current House, would have to pick up 55 seats in order to have a veto-proof majority.
Fourth, of course, the election of the President will affect the legislative agenda submitted to Congress, decisions about how the executive branch agencies are staffed, and decisions about how already enacted laws will be enforced. In recent administrations, presidents from both parties have used regulatory power to bypass Congress to try to achieve their policy goals. During the Bush administration, decisions in the Justice Department and administrative agencies have provoked an intense debate about the scope of the attorney-client privilege and the extent to which government agencies may base their actions on corporations' decisions to provide counsel to their employees.
As lawyers, we are doubly affected by all of these factors: as ordinary citizens and also in our professional lives. In addition, we have the ability to explain to our friends and colleagues the legal import of issues that are being discussed in the election campaign.
If you care about the legal consequences of this year's election, you should not sit on the sidelines.
Ann B. Lesk