Elections Will Tip the Judicial Balance

Amid the debate over economics, drugs, and foreign affairs, voters should not overlook the impact the presidential and senatorial elections will have on the federal judiciary. The voters' decisions will determine the philosophical direction of the federal bench, which will in turn have far-reaching consequences for numerous policy issues and the shape of our federal system.

The next president - with the advice and consent of the Senate - will shape the federal judiciary. Roughly 180 district judges and 60 circuit judges will be eligible for "senior status" - essentially retirement - before 2001. That is about one quarter of total judgeships. Because the district and circuit court benches now are approximately two-thirds filled by Republican appointees, the next president will tip the balance.

Significant turnover is also expected in the Supreme Court. Rumors are that as many as three justices may retire within the next four years. Taken together, these vacancies would allow President Dole to prevent the reemergence of liberal judicial activism and solidify the current 5 to 4 majority, or allow President Clinton to replace it with a more activist 6 to 3 liberal majority.

The courts' new makeup will affect a number of high-profile issues such as welfare reform. Congress recently devolved control over welfare policy particulars to the states. The courts have not yet significantly intervened. But Clinton appointees are more likely to undermine reforms by holding that they violate recipients' constitutional rights.

Liberal groups frequently sue to block welfare reforms. In C.K. v. Shalala, advocacy groups argued that New Jersey's "family cap," limiting payments to welfare mothers who have additional children, violated recipients' "right to procreate." Similar challenges face states enacting family caps under recent reform legislation. Federal work requirements and time limits on benefits likewise face challenges for supposedly discriminating against children of noncomplying parents.

Spread of lawsuits

Defending these lawsuits will be costly regardless of their outcome. But the suits are more likely to succeed and spread under a Clinton-appointed judiciary than under a Dole one.

Furthermore, the Unfunded Mandates Reform Act and the repeal of federal speed limits have devolved federal power. A sharply divided Supreme Court has also taken tentative devolutionary steps, limiting federal legislative power in US v. Lopez and embracing a robust conception of state sovereignty in Seminole Tribe of Florida v. Florida. Such moves toward greater state power would fare less well in a Clinton- than a Dole-influenced judiciary.

Responding to voter interest and concern, state legislatures have begun addressing the "right to die" issue. But federal judges may decide it for them. In Compassion in Dying v. State of Washington, the Ninth Circuit held that a Washington statute barring assisted suicide violated terminally ill patients' "substantive due process" rights. In Quill v. Vacco, the Second Circuit invalidated a similar New York law on equal protection grounds. The Supreme Court has agreed to hear both cases. Accepting either circuit's decision would end debate at the state level.

A Warren court revival?

The judiciary's makeup also will affect recent decisions concerning private property's status under the "takings" clause of the Constitution. In Nollan v. California Coastal Commission, a divided court held that California could not demand an easement in exchange for a building permit because it originally regulated land use in that area for safety reasons, which were unrelated to the easement.

Nollan was reinforced by Lucas v. South Carolina Coastal Council, in which the court held that any "regulation that deprives land of all economically beneficial use" effects a taking (requiring compensation) unless the use prohibited is a common law nuisance. In Dolan v. City of Tigard, a narrow majority interpreted Nollan to require that burdens imposed by permit conditions bear "rough proportionality" to the property's proposed use. Dole appointees likely would continue this trend toward defending property rights. Clinton appointees likely would not.

Prison management is another area where a Clinton-appointed judiciary might reverse movement toward greater state autonomy. The recently enacted Prison Litigation Reform Act restricts federal judges' ability to regulate matters like the temperature of prisoners' food, the lighting in prisoners' cells, and release schedules for state prisons held to be overcrowded. The act limits such intrusions by barring federal judges from granting relief not narrowly tailored to correct "a current or ongoing violation of [a] federal right." The act probably would not stop a Clinton judiciary from taking an expansive view of prisoners' rights.

There are other areas in which the next president's appointment will help define state power. A Clinton judiciary might revive Warren court holdings limiting evidence admissible in state criminal prosecutions. A Dole judiciary likely would allow states greater leeway in determining how to apply the death penalty and deal with abortion.

All these issues will be affected by this fall's elections. And they will in large measure determine whether power again shifts to Washington from the states or continues devolving outward.

US Sen. Spencer Abraham (R) of Michigan is a member of the Judiciary Committee.