The NYT’s editorial today on the impact of the Presidential election on the federal judiciary should be especially salient to tribal advocates. Sen. McCain promises to continue to stock the federal judiciary and the Supreme Court with arch-conservatives like Justices Scalia and Thomas. Sen. Obama has been more circumspect in his comments about federal judicial appointments, but the NYT editors (and we agree) assume he will appoint moderate liberals like Justice Breyer to the Court.
There are plenty of American Indian voters who have decided to back Sen. McCain, but they should reconsider in light of the import of his promises relating to the federal judiciary.
Consider what eight years of the Bush II Administration did to tribal interests, and add that to the 12 years of the Reagan and Bush I Administrations. Federal Indian law professors now recognize in general that 1986 or so was a major turning point in the success of tribal interests before the Supreme Court. From 1959 to 1986, tribal interests prevailed about 55-60 percent of the time before the Court, when the majority of the Court were liberals and centrists. Since then, they have lost more than 75 percent of the time. Seven of the nine current Justices are Republican appointees.
Though us law professors don’t like to say it much, there is a clear link to party affiliation and voting preferences.
It’s tempting for non-lawyers to ignore the federal courts. But consider the impact of the federal courts in recent years on terribly important tribal issues this year alone:
- A multi-billion dollar potential award in Cobell v. Kempthorne cut down to mere percentage points of that sum
- Affirmation of the National Eagle Repository’s constitutionality despite its obvious impact on Indian religious freedom
- Application of the National Labor Relations Act to tribal casinos
- Rejection of the Class III Gaming Compact Procedures promulgated by the DOI when a state government refuses to negotiate in good faith with Indian tribes
- Rejection of tribal court jurisdiction over nonmember banks engaging in on-reservation predatory lending
Sen. McCain’s federal judiciary would perpetuate these kinds of decisions. It’ll take years, maybe decades, to reverse many of these outcomes. Sen. McCain often has been there for Indian tribes, but not this time. When push comes to shove, and the Republican base is pressuring him, don’t expect him to push back.