Tipping Supreme Court's delicate balance

Will the new year give us a new Supreme Court justice? Or two, maybe three? Statistically, that should happen. The current court has not changed for 10 years, and that hasn't happened for 180 years.

The likeliest to create a vacancy is Chief Justice William Rehnquist. He has indicated no intention of retiring - on the contrary. But doctors say that an 80-year-old undergoing chemotherapy for thyroid cancer cannot expect to remain active for very long.

And so, though no one wishes Justice Rehnquist ill, there is much discussion about whom President Bush is likely to nominate. He has said he will choose someone who "knows the difference between personal opinion and strict interpretation of the law." But it isn't certain what that means, exactly, when applied to an individual. The president has also said he will apply no "litmus test." On the other hand, the announcement that he will resubmit the names of 20 appeals court and district court nominees who didn't make it in the last Congress suggests that he is squaring off for a confrontation with filibuster-wielding Democrats.

History teaches that a president can nominate someone he considers to be on his wavelength, only to find a justice harkening to a different drummer once safe behind the judicial curtains. Former President Eisenhower, asked once what mistakes he had made in office, responded, "Two, and both are on the Supreme Court."

He was referring to liberals Earl Warren and William Brennan. Former President Nixon could have said the same about Harry Blackmun, whom he nominated after judges Clement Haynsworth and Harrold Carswell were rejected by the Senate. As one of the "Minnesota Twins," with Chief Justice Warren Burger, he was considered a reliable conservative.

But, in time, Justice Blackmun became more and more liberal. He opposed capital punishment and a ban on flag burning. And he ended up writing the Roe v. Wade decision legalizing abortion.

What makes the next appointment so critical is the current delicate balance on the court. The lineup is generally considered to be 3-3-3: conservatives Rehnquist, Scalia, and Thomas; liberals Stevens, Ginsburg, and Breyer; and the swing moderates O'Connor, Souter, and Kennedy. Replacing Rehnquist would not change the balance unless his successor turned out to surprise President Bush the way Presidents Eisenhower and Nixon were surprised by their choices.

Daniel Schorr is the senior news analyst at National Public Radio.

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