Supreme Court Poised For Historic Transition
President's greatest legacy may be his choice of justices
WASHINGTON — Behind all the campaign rhetoric about character and college loans lies a largely overlooked issue that could be the most important legacy the next president will leave - the makeup of the Supreme Court.
Over the next four years, the high court may undergo substantial turnover, opening the way for either presidential candidate to leave a lasting mark on the bench in the twilight of the 20th century. Indeed, so balanced is the court today between moderates and conservatives that a single replacement could push the tribunal in a new direction.
But court watchers say anywhere from one to three justices could conceivably step down. "If a conservative like [Chief Justice William] Rehnquist retires and replaced by a moderate like [Justice Ruth Bader] Ginsburg, the dynamics of this court will change in all kinds of ways," says James Simon, a professor at New York Law School and author of "The Center Holds."
High court appointments are viewed, often in retrospect, as the most lasting mark a president leaves - shaping the nation's social and political fabric for decades. In the past 24 months, for example, the court has taken up affirmative action, gay rights, term limits, racial voting laws, religious freedom, and the "right to die" - all issues that highlight differing philosophies on the court.
The question today is whether the court would swing to a more conservative position - one allowing a revisiting of abortion rights and a further rollback on minority and privacy rights that conservatives feel are not enumerated in the Constitution.
Or whether a developing moderate wing of the court, which showed itself last year in decisions prohibiting the exclusion of homosexuals from political life and in boosting women's rights, for example, will expand.
Candidate Bob Dole has promised to continue the GOP conservative judicial revolution, begun with Presidents Ronald Reagan and George Bush, that brought justices like Antonin Scalia and Clarence Thomas to the high bench.
President Clinton, particularly if faced with a GOP Senate, would likely continue with the type of "pragmatic" moderates he has already appointed, Justices Ginsburg and Stephen Breyer.
"If Clinton has an appointment, he will try to find a moderate and maybe elevate Ginsburg to the role of chief justice," says David O'Brien, a University of Virginia law professor. "Dole will give the job of deciding the new justices to the cultural right and the Ralph Reeds of this world."
Clinton faces an aggressive antiliberal lobby on Capitol Hill. "We have seen that judicial nominations are not something Clinton will spend political capital on. He won't buy a fight. So we've gotten moderates that won't rock the boat," says legal scholar Mark Tushnet at Georgetown University in Washington.
Yet as voters face an ostensible choice between a GOP restoration of American virtues and a Democratic bridge to the next century, the judicial third estate seems almost in the campaign.
Partly this is due to the nature of the court itself, whose work doesn't lend itself to easy sound bites and is viewed by the public as a mysterious oracular body - when it is viewed at all. In a recent public opinion poll, for example, more Americans could identify Judge Wapner of TV's "The People's Court" than William Rehnquist, the chief justice.
Turning the federal judiciary into an issue that will galvanize the electorate can be difficult, too. Last spring, the GOP tried to highlight "liberal Clinton judges" that had thrown the nation's courts into "crisis." But the campaign didn't give Mr. Dole a perceptible boost.
Over the years, the court has at times been a high-profile campaign issue. During the 1960s, when the court ordered racial integration through school busing, many white Southerners were incensed.
Richard Nixon in 1968 incorporated a new genre of "law and order" language as he made the liberal Warren Court not only a major issue in the campaign, but also a vital part of his "Southern strategy" for beating Hubert Humphrey.
Candidate Reagan promised to appoint justices that would overturn Roe v. Wade (then promptly appointed the first woman, Justice Sandra Day O'Connor, who had a lenient voting record on abortion in the Arizona legislature).
Speculation about a "new court" in the next four years, however, is rife with uncertainty. Justices most often mentioned as possibly retiring are conservative-leaning Rehnquist and Sandra Day O'Connor, as well as the court's most liberal member, John Paul Stevens. Yet none of these members has recently spoken of leaving; Rehnquist told reporters last spring that he was not thinking of leaving, though law clerks on the court have told reporters otherwise in recent years.
Some court watchers feel the chief justice was merely taking the politics out of the court during the election season.
"Will Rehnquist leave? I'll bet he does," says Mr. Simon. "Do I know it for a fact? No."
Should all three justices leave, the next president would have a chance to appoint the most members of the court since Richard Nixon appointed four.
Further, there are no guarantees about what direction a justice will take once he or she puts on robes. Nixon appointed two moderates, Harry Blackmun and Warren Burger, who were the best of friends (Justice Blackmun was Justice Burger's best man). But Burger became a staunch conservative while Blackmun left as a leading liberal. President John F. Kennedy nominated Byron White, thinking he was a Warren Court liberal. Justice White became increasingly conservative. And there's also the more recent case of George Bush's nominee David Souter, the presumed "stealth conservative." Today, Justice Souter votes consistently with President Clinton's nominees.