Washington DC: This city is all about politics at this time of year, and Americans treat their politics like sporting events.
Sidle up to any bar in this city and conversations about races, odds, and long shots sound a lot like the sports commentary blaring from background television sets. Turn the channel to the news stations and it is sometimes difficult to distinguish political talk from sports talk.
While it is perhaps easier and maybe more exciting to treat political races like horse races, the truth is, in contrast to a sporting event, there is a lot at stake in this year’s US elections, which will decide the next President, all 435 voting members of the House of Representatives, and 33 Senate seats.
Discussions of policy during this election year, dialogue about initiatives including the Obama healthcare legislation, the motor industry bailout, and the economy are more often about how they will impact the electoral outcome and less about whether they work.

Drab policy

The lens through which Americans have come to view their elections, to some degree, has been moulded by the way the news media covers politics, and making elections into sporting events is more entertaining than reporting on drab policy. And, of course, entertainment sells ads.
‘Unfortunately,’ says Professor Paul Zwier, who heads Emory University Law School’s centre  for advocacy and dispute resolution in Atlanta, ‘people often forget that the election of a president can have a major impact on issues that impact their lives every day from health care, privacy, public safety, freedom of speech and religion.’
All of this reminds me of Michael Ritchie’s 1972 film, [open itals]The Candidate[close itals], in which Robert Redford plays an underdog candidate for the US senate. After winning an upset victory, the character’s final phrase of the movie is ‘what do we do now?’
The ‘what do we do now?’ comes after election day on 6 November, and is the reality – putting aside foreign policy, health care, and other domestic issues – that the new president could have 78 judicial appointments to fill at the federal trial and appellate court levels. Additionally, four members of the Supreme Court – Ruth Bader Ginsburg, Antonin Scalia, Anthony Kennedy and Stephen Breyer – are older than 73, and very well could retire during the next four years. That means that this election could decide the complexion of the third branch of the US state for years to come.

Tipping the balance

In the world of election coverage, the matter of judicial appointments may be as exciting as the texture of an Olympic runner’s shoe laces. Yet, the difference is that judicial appointments have an impact and can tip the balance of US policy, both foreign and domestic.
Back in 1971, a 6-3 opinion by the Supreme Court in New York Times Co v United States allowed the publication of the famous Pentagon Papers, which gave Americans and the rest of the world insight into the scope of the Vietnam War. By 1973, the US had withdrawn its forces.
The 2000 presidential election -- which resulted in a victory for George W Bush -- was decided in the Supreme Court. The 2010 decision in Citizens United v Federal Election Commission may very well effect the outcome of this election as in the days immediately prior to polling, corporations will now be free to make independent expenditure to influence races.

Multi-national liability

And for those across the world who care about the reach of US law, the court will soon hear arguments in a case that will decide the extraterritorial application of the Alien Tort Act, which has been used to impose liability on multi-nationals for conduct abroad.
The US is a country built on legal precedent and, aside from the Supreme Court, there is much to be said about the impact of the continuous flow of published opinions by federal trial and appellate court judges.
So when all the votes are counted, one thing is for sure, the president – whether Barack Obama or Mitt Romney – will deal with the appointment of judges. The other certainty is that when the time comes to fill appointments to the Supreme Court, with the question of confirmation by the senate at issue, the press and many Americans will do what they do best: analyse the matter as if it were a sporting event.