- The Washington Times - Monday, October 16, 2000

Presidential candidates George W. Bush and Al Gore both predict their election would tip the Supreme Court balance of power on divisive social issues.

The search for that prize may best define their differences.

The vice president has said, "I will appoint justices to that court who understand, and reflect in their decisions, the philosophy that our Constitution is a living and breathing document … intended by our founders to be interpreted in the light of the constantly evolving experience of the American people."

Mr. Bush has stated, "I'll name people who strictly interpret the Constitution and who do not use the bench from which to legislate.

"I've named four highly competent, very good judges … bright legal minds and judges who believed they should interpret the law, not make it," the Texas governor said, referring to the justices he appointed to the state Supreme Court.

But the candidates' stated expectations of three or four chances to make court history casts them in the role of greedy relatives maneuvering over the last will and testament before their wealthy patriarch is dead.

Similar predictions of Supreme Court vacancies during the 1996 presidential campaign proved wrong. No Supreme Court justice has quit since 1994, when Justice Harry Blackmun retired. To fill the vacancy, President Clinton named Justice Stephen G. Breyer.

The six-year stability in the present court lineup broke a record set in 1851. Despite ills and moderately advanced age, the current bench, with an average age of 66, is unusually young in Supreme Court years.

And there is no guarantee that those justices who oppose the next president's politics won't try to outlast him and nullify his chance to offset the current ideological split on the bench.

"I think none of the justices would easily elect to leave if his or her seat was going to be filled by a president likely to appoint a new justice with a substantially different perspective on major policy issues," said Philip A. Lacovara, a New York litigator who specializes in Supreme Court cases.

But the staying power of the next president instead of the justices may be the determining factor.

"If you say that the president elected in November will be re-elected next time, you then are more realistically saying this election is likely to shape … the course of the court for years to come," said Mr. Lacovara, who argued cases as a deputy solicitor general and in his current role at Mayer, Brown and Platt.

Shaping the court

The extent to which the next president can shape the court depends on which justices leave vacancies. If it is a justice of the same ideological stripe as the next president, then there will likely be little change in the balance of the court. And any nominee, of course, has to be confirmed by the Senate.

Chief Justice William H. Rehnquist, along with Justices Antonin Scalia and Clarence Thomas, tend to be consistently in agreement in the most conservative interpretation of the Constitution. Justices Stevens, Souter and Ruth Bader Ginsberg are at the opposite end of that spectrum. And Justices Sandra Day O'Connor and Anthony M. Kennedy, and to a lesser extent, Justice Breyer, are likely to provide swing votes on any given issue.

"You can't always tell which way an appointment might go, but there is no reason to underestimate the significance of Supreme Court appointments," said Steven Shapiro, national litigation director for the American Civil Liberties Union.

"Clearly, Supreme Court nominations are among the most important constitutional responsibilities any president might have," Mr. Shapiro said.

Both candidates agree the Supreme Court should add a Hispanic justice.

And both candidates find ways to say they'd hold fast to opposing principles on issues like partial-birth abortion. Both have managed to tiptoe through semantic traps about a "litmus test" on Roe vs. Wade or other hot buttons like affirmative action, gun rights and the constitutional protection of homosexuality.

When the issue of the Supreme Court came up in the presidential debate Oct. 3, the candidates stuck close to their previous statements on the subject.

"The voters will know I'll put competent judges on the bench, people who will strictly interpret the Constitution and will not use the bench to write social policy," said Mr. Bush.

Mr. Gore said: "In my view, the Constitution ought to be interpreted as a document that grows with our country and our history… . And I would appoint people who have a philosophy that I think would make it quite likely that they would uphold Roe vs. Wade."

An election issue

The issue of court appointments gets few headlines, but voters rank it high.

Supreme Court selection was termed "the single most important consideration" for 8 percent of those polled by NBC News and the Wall Street Journal, while Newsweek pollsters found 36 percent of respondents feel it is "very important."

In an effort to capitalize on that sentiment, a number of liberal interest groups have mounted advertising and public relations campaigns to target Mr. Bush on the court-appointment issue.

"Our whole way of life is at stake," Barbra Streisand said at a $5 million Hollywood fund-raiser. "I shudder at how a more conservative court can put at risk all we hold dear."

And on the other side, former U.S. Circuit Judge Robert Bork, who quit the appeals bench after failing to win Senate confirmation to the high court in 1987, affirms the importance of future court appointments.

"The Supreme Court is more often liberal, undisciplined and imperialistic than it is restrained, but it is capable of being moved in either direction by the next president's choice of justices," he said.

There is no question whom Judge Bork sides with he says Mr. Gore's opposition to any limits on abortion is so absolute that the vice president even defends a condemned murderess' prerogative to have her fetus executed with her.

"On abortion issues, Kate Michelman would in effect be the Supreme Court," Judge Bork wrote in National Review, predicting the influence on Mr. Gore of the president of the National Abortion Rights Action League.

Still, on the issue of abortion, both candidates deny harboring a litmus test for judges.

Mr. Gore says, "I am confident that without using a single case as a litmus test that there are ways to understand whether or not a potential nominee has an interpretation of the Constitution that is consistent with mine."

Mr. Bush states, "There will be no litmus test except for whether or not the judges will strictly interpret the Constitution."

But not everyone agrees that "litmus tests" are bad.

"It's the word liberals use to cower conservatives into doing what they ought not to do. A litmus test is just another word for a deeply held principle," Gary Bauer said while he was seeking the GOP nomination.

'In the mold'

Bush opponents, such as the advocacy group People for the American Way, have targeted the Texas governor on the grounds he would select judges "in the mold" of Justice Scalia. Mr. Bush injected Justice Scalia's name while answering a television interviewer's question about which justice he "really respects." But Mr. Bush cautioned that Justice Scalia could not be a model.

"I don't think you're going to find many people to be actually similar to him. He's an unusual man," Mr. Bush told Tim Russert on NBC's "Meet the Press." He said his choices would be "compatible from a philosophical perspective."

The attack began Jan. 21, a day after the Christian Science Monitor paraphrased the television comments this way: "George W. Bush has said he would seek out justices in the same mold as Antonin Scalia and Clarence Thomas."

That phrase, "in the same mold," was quickly picked up by PAW President Ralph Neas in speeches and in the group's "Right Wing Watch."

"If any of you are considering backing George W. Bush," Mr. Neas said on Jan. 21, "let me urge you to consider the impact of his pledge to appoint three or four new justices in the mold of Antonin Scalia and Clarence Thomas. Freedom of expression, separation of church and state, civil rights, and gay rights we'd be turning back the clock 40 or 60 years."

Labor unions, columnists and the Gore campaign followed suit.

"Gore's opponent has indicated his preference for appointments in the mold of Justices Scalia and Thomas," Gore campaign spokesman Chris Lehane said.

In the Oct. 3 presidential debate, Mr. Bush stated: "I don't believe in liberal, activist judges. I believe in strict constructionists. And those are the kind of judges I will appoint."

Mr. Gore responded: "When the phrase 'strict constructionist' is used, and when the names of Scalia and Thomas are used as benchmarks for who would be appointed, those are code words and nobody should mistake this for saying that the [Texas] governor would appoint people who would overturn Roe vs. Wade."

No similar assault on Mr. Gore has resulted from him for espousing the "living Constitution" philosophy of Justice Brennan, whose views strongly upset constitutional conservatives, or for saying his idol among justices is Justice Thurgood Marshall, a civil-rights advocate before his appointment in 1967 and a symbol of that movement until his death.

Mr. Bush says he opposes "the attempt to label and denigrate certain justices."

"We've been steadfast in not politicizing the Supreme Court as my opponent and my opponents' supporters have done," he said.

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