The most important responsibility of a president is to defend our nation's security; hence the title commander-in-chief.
The second most important duty is to protect the integrity of the Constitution that confers that title; a duty which turns our focus to the president's role in nominating justices to the Supreme Court, which, since John Marshall and Marbury v. Madison, gets to decide matters of constitutionality ("judicial review").
The legacy of a given president is disproportionately a consequence of his court appointments, most of which will serve long after he is gone and whose opinions, because of stare decisis (precedent), will outlive the judges who issue them.
There are two circumstances at present that will make this particular part of our next presidents' portfolio even more significant: the unexpected passing in February of Antonin Scalia, the longtime leader of the "strict constructionist" wing of the court (the wing that takes the Constitution seriously); and the likelihood that the appointment of a liberal judge to fill the Scalia vacancy would tilt the court toward the "living Constitution" wing for decades to come (the wing that sees the Constitution as a Rohrshach blot to be interpreted in whatever way advances their vision of social justice).
The balance on the court matters more these days because the court matters more. As we have gradually become, since the Warren Court, a nation governed more by unelected judges than elected legislators, who wears those judges' robes determines the legal status of abortion, gay marriage, free speech, campaign finance, immigration law, gun control, and much else.
For decades now there has been a fragile left-right balance on the Court, which before Scalia's passing featured four generally conservative justices (Scalia, Clarence Thomas, Samuel Alito and Chief Justice John Roberts) and four generally liberal justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan), with the incoherent Anthony Kennedy playing the swing vote previously played by the equally incoherent Sandra Day O'Connor. Neither of Barack Obama's appointments provoked much controversy because neither altered this balance (with Sotomayor replacing a liberal David Souter and Kagan replacing a liberal John Paul Stevens).
Confirmation battles occur, however, when a conservative president gets the opportunity to replace a liberal justice or, as now, a liberal president gets the opportunity to replace a conservative one. The two most contentious Senate confirmation struggles occurred when Ronald Reagan sought to place Robert Bork in the seat vacated by moderate swing vote Lewis Powell in 1987 (and got the insufferable Kennedy instead) and when George Bush nominated Clarence Thomas for the seat previously held by ultra-liberal Thurgood Marshall in 1991.
Which is why Obama's nomination of liberal Merrick Garland is stalled in the Senate, and likely to stay that way until after Nov. 8th. Yes, Obama was fulfilling his constitutional duty by nominating Garland, but he was also trying to shift the balance of the court in his preferred ideological direction as he left office and as perhaps the finishing touch on his promised transformation of America.
Of course, the same Constitution that Obama cited in making the Garland nomination also permits Republicans in the Senate to decide when and if to take it up. (Joe Biden's comments from 1992, when he was chair of the Senate Judiciary Committee, suggesting that the Senate should delay any such hearings in an election year also came back to haunt.)
The hope of Senate GOP leaders is, of course, that they never have to give Garland a vote; that November will produce their ideal scenario (however unlikely that seems at present)--a Republican president and continued Republican control of the Senate, after which Scalia's seat can be filled with a suitably conservative replacement.
Given that Ginsburg, Kennedy, and Breyer are 83, 79 and 77 respectively, a Republican president would also likely have the opportunity to do on behalf of conservatism what Obama is currently attempting to do on behalf of progressivism--set the ideological direction of the court for the next generation or so.
To stall between now and then in pursuit of that scenario is not, however, without risks for conservatives. If Hillary Clinton wins the presidency and Democrats take the Senate, Obama could withdraw the Garland nomination and allow her to nominate someone much more liberal and younger (thereby extending both the duration of service and the damage inflicted upon the rule of law).
The founders considered the court to be the "least dangerous" branch of the federal government, with danger defined largely in terms of potential for abuse of power. It might now, when judged on those terms, be the most dangerous, such that the kind of court appointments a candidate for president would make might be the most crucial factor in our electoral assessments.
Alas, the options in that regard this year promise to be nothing short of alarming: Hillary Clinton, who would undoubtedly continue the left's project of rewriting the Constitution through creative reinterpretations from the bench, and Donald Trump, who has no understanding of judicial philosophy or the Constitution whatsoever and apparently thinks judges sign bills.
These are dark days indeed for those who believe in the Constitution and the rule of law it represents.
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Freelance columnist Bradley R. Gitz, who lives and teaches in Batesville, received his Ph.D. in political science from the University of Illinois.
Editorial on 05/09/2016