- The Washington Times - Thursday, October 26, 2000

To appreciate how important a role the next president might play in shaping the U.S. Supreme Court, perhaps for decades to come, consider a few facts.

Consider first the kinds of judges each presidential candidate prefers. George W. Bush, the Republican nominee, has said the two Supreme Court justices he most admires are Antonin Scalia and Clarence Thomas two of the three justices comprising the Supreme Court's conservative wing. Vice President Al Gore has identified the late Thurgood Marshall and the late William Brennan as the justices he most admired. Both were among the most liberal jurists of the liberal Warren Court.

Consider next the judicial philosophies each candidate embraces. Mr. Bush said he would appoint "strict constructionists" who will "strictly interpret the Constitution and will not use the bench to write social policy." Mr. Bush would push the Supreme Court in a more conservative direction, where the government's power is circumscribed in the tradition of America's Founders. On the other hand, in Mr. Gore's view, "[T]he Constitution ought to be interpreted as a document that grows with our country and our history." In the tradition of Messrs. Marshall and Brennan, these are unmistakable code words for an expansion of judicial power for liberal policy ends.

Consider now the fact that the real balance of power on today's Supreme Court is wielded neither by the three-member, conservative wing nor by the four-member, liberal wing. The decisive area between those wings is occupied today by the Supreme Court's two swing voters, centrists Sandra Day O'Connor (70) and Anthony Kennedy (64). Thus, the views of a unified liberal wing prevail whenever one of the two swing votes sides with it. Both the proliferation of narrow votes and the nearly evenly divided liberal and conservative wings mean that a single appointment can significantly change the balance.

Before the Supreme Court could overturn Roe vs. Wade, it would take the appointment of two pro-life justices to replace two pro-choice jurists and their successful confirmation in what would undoubtedly be among the most explosive battles in U.S. Senate history. Moreover, even if Roe vs. Wade were overturned, it must be noted that abortion would not, ipso facto, become illegal across the country. Instead, the issue would revert to the states. Beyond abortion, many of the other culture war issues, including gay rights, school prayer and the role of religion in society, hang in the balance.

Consider one final fact: The long-term influence a president exerts on the Supreme Court can literally be multigenerational. Richard Nixon appointed Chief Justice Warren Burger in 1969. In 1971, Mr. Nixon also appointed as an associate justice Mr. Rehnquist, who succeeded Mr. Burger as chief justice in 1986. Thus, for the past 31 years and for the foreseeable future, the chief justice of the U.S. Supreme Court has been a man who took his seat on the Supreme Court during an administration that ended more than a quarter century ago. That is the awesome power that potentially will be wielded by one of the two candidates for president of the United States.

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