- The Washington Times - Tuesday, October 5, 2004

In terms of whom Americans elect president next month, few, if any, consequences will likely have a longer-term impact on the nation than the several appointments the winner will probably be making to the U.S. Supreme Court.

In 1980, for example, after it became apparent that Jimmy Carter would become the first president in U.S. history to serve at least one full four-year term without appointing a single justice to the Supreme Court, the issue of likely court vacancies during the next term was vigorously debated and analyzed. News accounts repeatedly reported the fact that the average age of the nine Supreme Court justices in 1980 was more than 67 years. Today, with Chief Justice William Rehnquist celebrating his 80th birthday last Friday, the average age of the nine justices is more than 70.

Not only will George W. Bush soon become only the second president to serve at least one full term without appointing a Supreme Court justice; his predecessor, Bill Clinton, who appointed two justices during the first two years of his first term, did not make any subsequent appointments. Thus, the 10 years and two months that have transpired since Justice Stephen Breyer took his oath of office in August 1994 represents the longest time span — since the early 1820s — during which the membership of the court has not changed. And back then, the court had only seven justices.

The interest in the court during the 1980 election was well-placed. President Reagan, who left office nearly 16 years ago, appointed three currently serving associate justices (Sandra Day O’Connor, Antonin Scalia and Anthony Kennedy) and elevated Mr. Rehnquist to chief justice. Indeed, Mr. Rehnquist was initially appointed to the court in 1971 by President Nixon, two years after he nominated Warren Burger as chief justice. Thus, while Mr. Nixon served only five-and-a-half years as president, he appointed to the court two justices who have cumulatively served as chief justice for more than 35 years and counting. It is also worth noting that President Andrew Jackson, with less than one year remaining in his second term, appointed Roger Taney as chief justice, a position he held for 28 years. Indeed, 21 years into his life term, Taney penned the 7-2 Dred Scott decision. “Coming when forces already were setting the stage for civil war,” observes “The Oxford Companion of the Supreme Court of the United States,” “Taney’s inflammatory opinion of the Court added enough fuel to the fire that it became unextinguishable.”

During the 2000 presidential campaign, Mr. Bush identified justices Scalia and Clarence Thomas, who firmly occupy the court’s conservative wing, as the two court members he most admired. Combined with the justices he has nominated to the federal appellate and district courts, Mr. Bush’s 2000 statement sends a clear signal regarding the kind of justice(s) he would consider for the Supreme Court. Concerning John Kerry’s likely court appointment(s), consider his status as the Senate’s most liberal member (according to National Journal) and the fact that his lifetime “liberal quotient” from Americans for Democratic Action (ADA) is higher than Ted Kennedy’s.

With a 20-year record like that, it isn’t a stretch to believe that Mr. Kerry would prefer the same kind of justices favored by fellow Massachusetts congressional member Barney Frank, a graduate of Harvard Law School, former Harvard lecturer and possessor of a lifetime ADA “liberal quotient” of 98.4 percent. If you like Mr. Frank’s politics, it’s safe to say, you’ll love Mr. Kerry’s Supreme Court appointment(s).

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