"Elections have consequences," as the saying goes. What is the likely consequence of the re-election of Barack Obama with respect to judicial appointments, as they bear on law enforcement and public safety issues? In our business, we're trained to look for the clues. There are plenty of those to examine.
In March of 2008, Mr. Obama said, "I want people like Earl Warren on the court." The Warren court gave us decisions like Mapp v. Ohio (the exclusionary rule) and Miranda v. Arizona, among others. True to his word, during his first term in office, the President appointed Supreme Court Justices Sonia Sotomayor and Elena Kagan.
Citing her votes in cases involving juvenile crime, Miranda, and other issues, the Los Angeles Times wrote on June 8, 2010, "Justice Sotomayor is proving herself to be a reliable liberal vote on the Supreme Court." As for Justice Kagan, the New York Court Watcher characterized her record as "91% voting like a political liberal," saying that except in two cases, she has been "consistently siding with the rights of the accused."
If either Justice Antonin Scalia or Justice Anthony Kennedy (both age 76) should retire or, God forbid, die in office during the next four years, the appointment of a replacement in the mold of Warren, Sotomayor, and Kagan would give the Supreme Court a liberal majority which, based on the clues, could be expected to favor the rights of accused criminals and create new restrictions on police and prosecutors. But the Supreme Court is not the only worry.
In Mr. Obama's first term, he placed 30 judges in federal appeals courts, and 141 judges in federal district courts. Second-term appointments would presumably double these numbers, resulting in 60 appeals judges and close to 300 federal trial judges whose approach to judging would reflect the presidential aim to appoint "people like Earl Warren."
Since few cases ever reach the Supreme Court, most of the federal rulings affecting day-to-day police work—including civil liability rulings—come from the federal district courts and the federal circuit courts of appeal. Over the next four years, the Warrenesque leanings of some 350 Obama appointees could contribute to case law that significantly hampers the investigation and prosecution of crimes, and significantly increases police exposure to civil liability. But the next four years is not the only worry.
All federal judges are appointed for life. They continue to make rulings long after the president who appointed them has been forced out of office, either by the voters or, as will be the case with Mr. Obama, by the 22nd Amendment. Federal judges appointed in their 40s, 50s, and early 60s continue to influence federal case law for several decades to come. When she was sworn in, Justice Sotomayor was 55 and Justice Kagan was 50. A federal judge recently appointed in Texas was 40.
The disastrous public-safety effects of the 1960s rulings of the Warren court were seen in the explosion of violent crime in the 1970s and 80s. The full effects of federal judicial appointments occurring between 2008 and 2016 are yet to be seen, but the clues are not encouraging.