Next President's Impact on Courts Will Be Powerful

ONE of the most lasting and powerful legacies of the next president will be the federal judges he chooses for lifetime appointments to the courts.

The coming presidential term may present an unusually significant opportunity to affect the increasingly conservative judicial branch of government.

On the Supreme Court, court watchers expect at least two and as many as five justices to retire during the next four years. This means it is possible, though perhaps not likely, that the next president could appoint a complete majority to the high court.

President Reagan had only three Supreme Court openings to fill. President Bush has had two during his term. Between them, they transformed the court's reading of Constitutional rights.

The court has drawn back on protecting accused criminals, abortion rights, civil-rights mandates, and guarding the free exercise of religion. It has also strengthened property rights.

At lower levels of the judiciary, vacancies are unusually high. A year ago, 104 district and appellate judgeships were vacant - about 17 percent of the total - because the Bush administration was slow in naming new judges.

Now White House nominations are bogging down in the Senate confirmation process. Democrats running the Judiciary Committee are awaiting the outcome of the election. Fifty nominees are currently awaiting committee hearings and another nine are awaiting confirmation by the full Senate.

Reagan and Bush appointees dominate the entire federal bench. Roughly 80 percent of federal judges were appointed during the last 12 years of Republican administrations.

Mr. Bush's appointees are at least as conservative as Mr. Reagan's, according to Robert Carp, a political scientist at the University of Houston who has coded all published federal district court decisions into a computer program for analysis.

The decisions of the Bush judges are in fact more conservative than those of the Reagan judges, he says, but that may be partly explained by Bush judges beginning their service under a more conservative Supreme Court. Federal judges are, to a large extent, guided by Supreme Court decisions.

At the Supreme Court level, Bush's appointments have been mixed. His first choice, David Souter, has joined Justices Sandra Day O'Connor and Anthony Kennedy to form a center bloc on the court. Their decisions, such as one last year affirming most but not all of Pennsylvania's abortion restrictions, appear generally to run close to the center of public opinion. Bush's next pick, Clarence Thomas, is very close in his opinions to Justice Antonin Scalia, the court's most rightward beacon.

Gov. Bill Clinton offered the clearest indication of his designs for the court in June when he told an MTV audience that New York Gov. Mario Cuomo "would be a good Supreme Court justice. He is a legal scholar who also understands the impact of the law on real people's lives."

That comment was not a "commitment," he later said, but indicated the kind of person he would appoint.

"I would take the Cuomo comment quite seriously," says Walter Dellinger, a Duke University law professor and frequent adviser to prominent Democrats. Governor Cuomo would be a powerful presence on a court that is now nearly unique in American history for its lack of a single member who was a prominent public figure before joining the bench, notes Mr. Dellinger, who is himself often mentioned as a possible Clinton Supreme Court appointee.

Mr. Clinton has also promised to appoint judges who will abide by Roe v. Wade, which found a constitutional right to abortion. This could possibly cut the pool of people he is likely to choose from in half, says Rod Smolla, a law professor at the College of William and Mary law school and formerly on the law faculty at the University of Arkansas.

Many potential judges who support abortion rights will refuse on principle to answer questions about how they would vote on Roe-type cases, he says.

Clinton taught constitutional law from 1973 to 1976 at the University of Arkansas, but he has left few cues about his judicial ideology. A colleague there, Prof. Mort Gitelman, says that Clinton's former students still talk about "how he was suspected of being a deep liberal, but he was always pretty neutral in class."

Clinton has appointed about 60 judges as governor of Arkansas, but only for interim appointments, since all state judges are elected in Arkansas. His appointments offer little indication of his leanings. Professors Smolla and Gitelman both guess that Clinton would appoint centrist liberals rather than left liberals.

Eventually, Clinton would likely appoint a Hispanic to the high court, says Georgetown law professor Mark Tushnet. A likely prospect, he adds, is Federal District Judge Jose Cabranes of New Haven, Conn., like Clinton a Yale law graduate.