Next president will shape Supreme Court

Monday, October 20, 2008


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One of the most momentous and least-discussed topics in the presidential campaign is the likely departure in the next four years of as many as three of the more liberal justices on a closely divided U.S. Supreme Court.

When the subject of judicial appointments was raised during Wednesday's debate, Democrat Barack Obama observed that Roe vs. Wade, the 1973 Supreme Court ruling that legalized abortion, "probably hangs in the balance" on the outcome of the election.

Obama, who supports the ruling, and Republican John McCain, who wants it overturned, then took pains to deny that they would use the case as a "litmus test" in choosing a future justice - denials that their own words appear to contradict.

As McCain put it, he doesn't believe anyone who backs Roe vs. Wade "would be part of those qualifications" he will require for judicial nominees, such as "a history of strict adherence to the Constitution." Obama, for his part, has said he favors nominees who support the constitutional right of privacy, the legal underpinning of the 1973 ruling.

But abortion is only one of many issues in which the court's moderate-to-liberal bloc of four justices has joined with the moderately conservative Justice Anthony Kennedy to form a precarious majority - one that would probably be undone by a McCain appointee.

Detainee ruling

For starters, there was the 5-4 ruling in June that allowed prisoners at the U.S. naval base at Guantanamo Bay, Cuba, to challenge their confinement in federal court, a decision that McCain called "one of the worst" in U.S. history.

In other close decisions, the court has allowed consideration of racial minority status in college admissions, barred executions of juveniles and the mentally retarded, applied environmental laws to global warming, upheld congressional authority to limit campaign contributions, overturned laws against gay sex and restricted religious displays on public property.

In each of those cases, the majority included Justices John Paul Stevens, 88; Ruth Bader Ginsburg, who is 75 and in uncertain health; and David Souter, 69, widely reported to be considering retirement.

The departure of any of them after a McCain victory would undoubtedly lead to an intense battle over confirmation of a successor in a Senate that is likely to remain under Democratic control.

The election "will determine whether the Supreme Court becomes substantially more conservative or stays ideologically the same," said Erwin Chemerinsky, the law school dean at UC Irvine.

Filibusters unlikely

Recent history suggests that even a solidly Democratic Senate wouldn't stand up to a determined Republican president on Supreme Court nominations, Chemerinsky said. He noted that Democrats held a majority when the Senate confirmed Justice Clarence Thomas in 1991, and did not resort to a filibuster that might have thwarted confirmation of Justice Samuel Alito in 2006.

On the other hand, the most outspokenly conservative nominee of the last few decades, Robert Bork, was denied confirmation by a Democratic-controlled Senate in 1987, leading President Ronald Reagan to settle on the more centrist Kennedy. Obama's vice presidential running mate, Delaware Sen. Joe Biden, chaired the Senate Judiciary Committee during the Bork and Thomas hearings.

Obama, as president, would probably have little chance to change the court's direction in the short term, as the more conservative justices - Chief Justice John Roberts, 53, and Justices Alito, 58, Thomas, 60, and Antonin Scalia and Kennedy, both 72 - have given no hint of any retirement plans. Nor has Justice Stephen Breyer, 70, who usually votes with the more liberal bloc.

Obama's more immediate impact would be on the lower courts, where the federal judiciary does most of its nuts-and-bolts work.

As of last month, Republican appointees on the federal courts outnumbered Democratic appointees 477-342, with a 7-2 majority on the Supreme Court and majorities on 10 of the 13 appellate circuits.

The federal trial and appeals courts are "a tremendous opportunity for any president who wants to make judicial appointments a priority," said Goodwin Liu, a UC Berkeley law professor. Republican presidents, he said, "have been much better at that."

Different standards

Obama and McCain have disagreed on the proper standards for picking judges.

Obama, a former constitutional law professor, said last year that he would look for candidates with "the heart, the empathy, to recognize what it's like to be a teenage mom. The empathy to understand what it's like to be poor, or African American, or gay, or disabled, or old."

He returned to that theme in Wednesday's debate, recalling the case of Lilly Ledbetter, whose suit charging that she had been paid less than a man for equal work was thrown out by the Supreme Court in May 2007. The court said Ledbetter had failed to sue within the required 180 days of when she was first paid less, even though she didn't learn of the disparity for almost 20 years.

Legislation to overturn the ruling has been blocked by Senate Republicans. Obama supports that bill, and McCain opposes it.

"I think that it's important for judges to understand that if a woman is out there trying to raise a family ... and is being treated unfairly, then the court has to stand up, if nobody else will," Obama said during the debate.

'Trial lawyer's dream'

McCain promptly dismissed the bill as "a trial lawyer's dream." More fundamentally, he and his supporters say Obama's approach to judicial selection is wrongheaded and would result in jurists who elevate their personal preferences above the Constitution.

"I'm troubled by Sen. Obama's comments that he would look for judges who would look to their heart and sense of fairness in deciding cases instead of looking to the law," said Rachel Brand, a former assistant attorney general in the current Bush administration who is part of McCain's loose-knit Justice Advisory Committee.

"There's something fundamentally undemocratic about that. The people decide what the law is. Judges should apply it."

McCain speaks in similar terms. In a speech at Wake Forest University in May, he denounced judges who "rule on policy questions that should be decided democratically" and show "little regard for the authority of the president, the Congress and the states," and "even less interest in the will of the people."

He has identified Roberts and Alito as his models for future appointments. Obama voted against both of them.

Conservative distrust

Some conservatives remain wary of McCain, however, for his participation in a bipartisan agreement among 14 senators in 2005 in which the Republicans dropped plans to push for a ban on Senate filibusters against judicial nominees. In exchange, the Democrats ended their blockade of three of Bush's most conservative appeals court candidates and have curtailed their filibusters.

"McCain is a little more moderate than the center of his party," said Eugene Volokh, a UCLA law professor and McCain supporter.

Although Obama is clearly more liberal than McCain, his positions on court-related issues have been relatively centrist during the campaign.

Like McCain, he criticized the court's decision this year to bar death sentences for child rapists, and praised the landmark ruling recognizing a constitutional right to own guns.

Obama's judicial advisers include Harvard law Professor Laurence Tribe, a noted liberal who endorses a right of gun ownership, and the University of Chicago's Cass Sunstein, a self-described "minimalist" who believes judges should move in small increments when shaping legal doctrine.

Legal commentator Edward Lazarus, a Los Angeles attorney and former Supreme Court clerk, said Obama appears to be "someone who has progressive instincts on legal issues ... but at the same time someone who is concerned about excessive judicial discretion, judges overriding views of elected legislators."

Obama said Wednesday that Supreme Court appointments would be "one of the most consequential decisions of the next president." But UC Berkeley's Liu said judicial selection might have a tough time competing for a new president's attention in a period of war abroad and economic convulsions at home.

"I don't think Obama himself would have enough bandwidth to make this a signature issue," Liu said. "But it's a good vice presidential project, and who better (for the task) than Joe Biden?"

What's at stake

U.S. Supreme Court rulings on issues that could be affected by the next president's judicial appointments:

Abortion: The 1973 Roe vs. Wade ruling that declared a constitutional right to abortion, and a 5-4 ruling in 1992 reaffirming that right but allowing restrictions that do not impose an "undue burden" on women's access to abortion.

Prisoners: A 5-4 ruling in 2008 that allowed foreign prisoners held as enemy combatants at the U.S. naval base at Guantanamo Bay in Cuba to challenge their confinement in federal court.

Race: A 5-4 ruling in 2003 allowing public colleges to consider an applicant's race as one factor in admissions to promote campus diversity.

Capital punishment: Rulings outlawing the death penalty for the mentally retarded in 2002, for youths under 18 in 2005 and for child rapists in 2008.

Global warming: A 5-4 ruling in 2007 finding that carbon dioxide and other greenhouse gases emitted by cars and trucks are pollutants covered by the Clean Air Act, and requiring the Environmental Protection Agency to regulate their emissions unless it produces scientific evidence for not doing so.

Campaign contributions: A 5-4 ruling in 2003 upholding a law co-sponsored by Sen. John McCain that banned soft money - large contributions from corporations, unions and individuals to political parties for federal elections.

Gays: A 6-3 ruling in 2003 that overturned state sodomy laws and held that gays and lesbians have a constitutional right to sex.

Religion: A 5-4 ruling in 2005 that prohibited two Kentucky courthouses from displaying copies of the Ten Commandments on their walls.

E-mail Bob Egelko at begelko@sfchronicle.com.

This article appeared on page A - 1 of the San Francisco Chronicle

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