How Dukakis or Bush would hold court

WHY all the fuss about presidential running mates? Vice-presidents don't make policy - and certainly they don't set legal precedents. Supreme Court justices do, however. And the next occupant of the Oval Office seems likely to fill at least one-third of the court's nine seats, mainly due to retirements.

President Reagan has appointed three justices - Sandra Day O'Connor (the high tribunal's first woman), Antonin Scalia, and Anthony Kennedy. All are classic conservatives and solidify a right-of-center majority along with Chief Justice William Rehnquist and Associate Justice Byron White.

Of course, this gang of five doesn't always constitute a voting bloc, but their influence is being felt more and more, particularly in criminal justice matters.

Associate Justices William Brennan and Thurgood Marshall are the court's bona fide liberals. They are veteran bench-sitters. The former was appointed by President Eisenhower in 1956; the latter, by President Johnson in 1967. Both are well past normal retirement age.

Associate Justices Harry Blackmun and John Paul Stevens fill out the liberal-to-moderate wing.

From the standpoint of tenure or longevity, Messrs. Brennan, Marshall, and Blackmun are the most likely to leave the court during the next presidential term.

What does this mean for prospective Republican President George Bush or potential Democratic President Michael Dukakis?

A lot - Supreme Court watchers say.

Bush, armed with new Supreme Court appointments, could push the court ideologically to almost unprecedented conservative heights. It could leave the brethren without an intellectual liberal giant when Brennan retires.

The Supreme Court is a debating society. Scholarly justices try to win over their colleagues - particularly those on the fence over a particular issue - with convincing legal theory.

Justice Brennan has had this persuasive ability. In the recent past, he corraled majorities on affirmative action for blacks and women; he kept the court from totally abandoning protections for the criminally accused, and he prodded it to carefully monitor states' capital punishment statutes.

With the advent of the Reagan years in 1981, some observers flatly predicted a Supreme Court reversal of civil libertarian rulings that were set in motion by a progressive court of the 1950s and '60s under Chief Justice Earl Warren.

This has not happened. Even with a gradually add here emerging conservative majority, the court has held the line on most defendant's rights, warded off the demands of the radical right to strike down abortion, and actually out-liberaled its liberal predecessors to spell out employment-related protections for women.

Drastic change is not in the wind. But a significant move to the right is definitely stirring if a Republican administration continues in the White House.

The election of Democrat Dukakis in November, however, would mean a moderating effect on recent conservative trends.

One high court scholar, Ronald K.L. Collins, also sees the next appointment of a US solicitor general as central to the nation's course of justice.

Collins, who holds joint visiting law professorships at American University and Temple, says the placing of a civil libertarian in the solicitor's job as the nation's chief public advocate in the Supreme Court could do much to neutralize the effect of the present highly conservative Justice Department under Attorney General Edwin Meese III and Solicitor General Charles Fried.

Who are prospective Supreme Court nominees in the event of a vacancy in 1989 or thereafter?

Neither Bush nor Dukakis is expected to go to ideological extremes.

A Bush White House might lean, for example, toward Treasury Secretary James Baker, a close friend of the GOP hopeful. Former Nixon aide Dean Burch is also mentioned, along with conservative federal court judges J. Harvie Wilkinson III and Kenneth Starr. Utah Sen. Orrin Hatch - whose name had surfaced in the past - is also a possibility.

A Dukakis presidential team, on the other hand, might look with relish at liberal federal judges Stephen Breyer, Harry Edwards, and A. Leon Higginbotham, or well-known First Amendment Harvard scholar Laurence Tribe.

Collins says Judge Higginbotham - a black - might be a likely prospect to replace Justice Marshall.

Democratic women in the wings as possibilities to join Republican O'Connor on the high court bench are federal judge Amalya Kearse and ultimately Dukakis's bright young campaign manager, Susan Estrich.

What will be the key issues for a Bush or Dukakis court?

Allocation of White House power as opposed to congressional authority seems to be a mounting issue for the 1990s, as are privacy matters - such as resolution of drug-testing laws, AIDS-related legislation, and right-to-die agreements.

And the traditional tug-of-war debates over abortion, capital punishment, and religion in the public schools never seem to go away.

A Thursday column

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