How they'll reshape the bench
The next president - whether it is George W. Bush or John Kerry - will probably have an opportunity to shift the balance of power on the US Supreme Court in a way that could hold for decades.Skip to next paragraph
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With a long list of 5-to-4 decisions on hot-button issues like affirmative action, school vouchers, gay rights, and abortion, even a single appointment could prove decisive in some of the nation's most contentious legal disputes.
So it is not surprising that special-interest groups on both the left and right are alarmed at the prospect that a justice friendly to their cause could be replaced with a hostile jurist.
As a presidential campaign election issue, however, the Supreme Court has yet to emerge as a top concern of most voters. That is partly because the issue depends on three key events, none of which has occurred. There is no indication a justice will leave the court anytime soon. Thus, no replacement has been nominated. And since no replacement has been nominated, it is not possible to know whether there will be significant opposition to the nominee in the Senate.
But all that could change in an instant. And if partisan squabbles over President Bush's appointments to lower courts during the past four years are any indication, the next vacancy at the US Supreme Court could plunge the White House and Senate into a bitter, high-stakes battle.
While longtime court watchers acknowledge that possibility, many say the political realities of Washington may dictate a more restrained nomination scenario.
"Absent some significant change in the membership of the Senate," says David Garrow, a Supreme Court historian at Emory University in Atlanta, neither of these presidential candidates has any alternative "but to nominate within a fairly narrow window of moderation."
"No Republican expects Kerry to appoint a Republican, and no Democrat expects Bush to appoint a Democrat. But I think there is the expectation that if you want to get your people confirmed, they have to be judicial," says Sheldon Goldman, a political science professor at the University of Massachusetts at Amherst. "They can't be seen as advocates for the left or the right."
What this would mean in a Kerry administration is nominees similar to those named by President Clinton - Ruth Bader Ginsburg and Stephen Breyer. Two issues would probably frame the selection of moderate Democrat nominees by Senator Kerry - support of abortion rights and an indication that the US Constitution does not include a right to same-sex marriage, analysts say.
It remains unclear whether Bush would pursue a similar strategy aimed at placing Republican moderates on the high court - for example, someone similar to Sandra Day O'Connor, a Reagan appointee who has helped uphold abortion rights but who generally votes with conservatives on federalism issues.
Some analysts say the focus should be on the qualities of the individual nominee, rather than on political labels.
"I don't believe the only people who could get confirmed in a Senate controlled by Republicans, after all, are those whom the left is willing to describe as moderate," says Brad Berenson, a Washington lawyer and former associate White House counsel to Bush. "A conservative president is entitled to appoint a conservative justice if his nominee is well qualified and fair-minded."
Mr. Berenson adds, "There are certainly plenty of conservative jurists who fall into that category."
Bush has said he favors judicial candidates in the mold of Justices Antonin Scalia and Clarence Thomas. Both are strong conservatives, and both do not recognize abortion as a fundamental right. Senate Democrats suggest any nominees resembling Justices Scalia and Thomas will be blocked.
While Republican senators largely approved Justices Ginsburg (97 to 3) and Breyer (87 to 9), both of whom shared Mr. Clinton's abortion-rights outlook, it appears Senate Democrats are prepared to block any high-court nominee who they suspect may share Bush's antiabortion outlook.
Thus, if Bush is reelected, the stage appears set for a showdown.
Democratic leaders in the Senate have launched 10 filibusters to block Bush's nominees to federal appeals courts. The Democrats charge that the stalled nominees are conservative extremists outside the legal mainstream. The White House and Senate Republicans dispute such characterizations, saying that each nominee would win confirmation if given an up or down vote by the full Senate.