A Crucial But Largely Ignored 2004 Campaign Issue:
The Next President Is Likely to Appoint At Least Three Supreme Court Justices

By JOHN W. DEAN
Friday, Sep. 24, 2004

Supreme Court nominations are among the most influential decisions a President can make: No other choices have longer (or, possibly, larger) impact on the workings of government, and the laws of the land.

Yet surprisingly little has been said during the 2004 presidential race about this matter. Of course, the issue is still being discussed in the back rooms of the Capitol - but it has not played a public role.

True, Bush regularly talks about appointing Justices who warm the heart of his political base when campaigning. Yet Kerry has made little mention of his views on the issue - and so the candidates' clash, on this issue, has not made news.

In the 1968 presidential campaign, Richard Nixon made his promised appointment of "strict constructionists" to the high Court a central issue of his campaign. Similarly, Ronald Reagan made judicial appointments an issue in 1982 and 1986. And in 2000, George W. Bush did so even more aggressively when he talked of using his nominations overturning the Supreme Court's 6-3, 1973 ruling, in Roe v. Wade, that there is a constitutional right to abortion.

Why hasn't the matter of the selection of justices been a more openly debated issue in this campaign? In theory, at least, it ought to be - for as I will explain, the next President probably will fill three - or more -- vacancies on the Supreme Court.

Then why isn't it? Some commentary has suggested the war in Iraq and the war on terrorism have overshadowed the issue. Yet Nixon forced the same issue to the front and center at the height of the deeply divisive Vietnam War. So it can be done.

I believe much more practical political reasons - which I discuss below -- have kept this issue just below the surface of this campaign. There, it simply gurgles like molten political lava, ready to erupt.

Why Three or More Supreme Court Openings Are Likely

To begin, let me explain why I predict the next President may have three -- or more -- Supreme Court vacancies to fill.

There has not been a vacancy on the high Court since 1994 - and since then, we have had the longest run of nine justices sitting together in the past 150 years. That run is very likely soon to be interrupted.

Second, many of the current Justices have reached the age where they may be contemplating retirement - or suffering health problems that might prompt them to retire, even against their preference. In order of their appointments to the Court, here are the birth years of the current members: William Rehnquist (1924), John Paul Stevens (1920), Sandra Day O'Connor (1930), Antonin Scalia (1936), Anthony Kennedy (1936), Clarence Thomas (1948), Ruth Bader Ginsburg (1933), and Stephen Breyer (1938). O'Connor and Ginsburg have reportedly fully recovered from their bouts with cancer, but little else is know about the health of the Justices.

Third, it has long been thought that Rehnquist and O'Connor would like to retire, and that they have been watching election returns to find the best time to do so. Rehnquist is in favor of overruling Roe; but O'Connor voted against it in the 1992 decision in Planned Parenthood v. Casey.

If President Bush wins reelection, it is widely assumed they will depart. But if John Kerry wins, it is not clear if they would leave the Court. O'Connor has been a swing vote, so her seat will be bitterly contested, when it is open, with Republicans seeking a sure conservative vote and Democrats seeking another swing vote (or better).

Probably the most sensitive vote belongs to the oldest member of the Court, who voted with the majority on Roe v. Wade -- Justice John Paul Stevens, who is 84. While Stevens was nominated by President Ford (indeed, he was Ford's only nomination), he votes with the moderate block of the Court.

In the hopes of overturn Roe, the conservatives covet the chance to replace Stevens. (Replacing Stevens and O'Connor, for example, with anti-Roe justices, would give conservatives the 5-4 majority they would need to overrule Roe.)

Regardless of who wins in November, given the importance to the bases of both parties, a major battle is brewing for these seats. It is not going to be pretty.

If Bush is reelected, Chief Justice Rehnquist will likely follow the lead of his predecessor Chief Justice Burger, and play a behind-the-scenes role with the President and his White House - helping them with strategy as to how to keep the Court conservative.

If Kerry wins, however, Rehnquist (a highly political person) will doubtless offer the President only a formal letter of resignation, should he decide to depart.

Underselling a Key Issue: The Democrats Are No Demagogues

With so much at stake, why has the Supreme Court issue merely simmered in this election year? One reason, I believe, is that the Democrats have proven to be poor demagogues, unlike their opposition.

By way of comparison, imagine that a moderate group of five justices of the U.S. Supreme Court had selected Al Gore to be president of the United States last December 2000. Can anyone doubt that conservative Republicans would have been ranting, and attacking both the Court and the legitimacy of that presidency for the past four years?

The Republicans, had they lost this way, would have made the 2000 election the central focus of the 2004 election. But the Democratic Party, once a party of flame-throated cantankerous conservatives, no longer is very adept at the squeaky-wheel politics of incivility.

For decades, Southern conservative Democrats attacked anyone or any governmental entity that insisted on equality for African-Americans. When they lost in their efforts to keep the South racially divided, these social conservatives and radicals (and their successors) joined the Republican Party. There, they have continued to impose their special brand of Southern charm on those with whom they disagree.

Democrats today have lost that bullying and blustering talent. Indeed, Democratic Senator Zell Miller, the last of the breed, loaned himself to Republicans this year.

Filibusters Have Tempered the Supreme Court Issue for Democrats

Another reason the Supreme Court issue has not been as prominent as it ought to be is that Senate Democrats have given the Democratic base clear signs that -- come what may -- they will not tolerate tipping the balance of the Court to the solid right. For this reason, Democrats - and Democratic voters -- may feel they need not dwell on the Supreme Court issue now.

But if that is the reasoning, it is foolish: The power to oppose nominations is a far cry from the power to nominate. With a Kerry presidency, the Democrats could not only try to avert worst-case scenarios, but could profoundly shape the Court.

So far, all that is clear is that worst-case scenarios for the Court are very unlikely to occur. For the past four years, the U.S. Senate has become something of a war zone for judicial nominations to the lower federal courts. Such nominations are sometimes crucial in that they will provide a fast track for the nominee to be appointed to the Supreme Court. But here, they were also crucial in that they allowed the Democrats to draw a line in the sand.

When President Bush nominated conservative judges that the Democrats found to be too conservative, they because surprisingly combative and blocked seven such nominees with the treat of (or use of) a filibuster. This aggressive, repeated use of the filibuster was unprecedented. The Democrats were adopting the sort of parliamentary tactics that their Southern predecessors had once so effectively employed to block civil rights legislation. And these seven skirmishes only hint at the growing tension within the Senate of the coming fight for high Court seats.

Which is all well and good. But simply because Supreme Court nominations - from either side of the aisle - will be hard-fought, doesn't mean we should ignore their profound importance.

Kerry's Choice Not to Raise the Supreme Court Issue: Ultimately Wise

In the end, the campaign season silence on the Supreme Court issue may largely be John Kerry's choice: He has chosen not to engage Bush on this issue.

I can only surmise what the reason may be. Bush is not a lawyer, and apparently sees his Court appointments and packing the judiciary with all the right wingers he can get confirmed as merely another political opportunity. But Kerry is a lawyer -- with a sophisticated understanding of the role of the federal courts, in general, and the Supreme Court, in particular. Perhaps he sees the dangers in playing politics with the judiciary, and has consciously chosen to avoid doing so.

In January 1986, when it became clear that the Reagan White House was seeking to tilt the federal judiciary to the right, Kerry spoke at a national conference of criminal prosecutors and defense lawyers. Though his speech addressed the right to counsel, Kerry also expressed worry over Reagan's court-packing efforts - which he deemed a "threat [that] endangers the fundamental integrity of our judiciary, and thus the quality of our entire system of justice."

"[Politicizing the courts] risks undermining the respect that we have always maintained for our judiciary, and even the balance of powers as set forth in our Constitution," he told the conference. And he added, more specifically, "This threat is that of the appointment of a judiciary which is not independent, but narrowly ideological, through the systematic targeting of any judicial nominee who does not meet the rigid requirements of litmus tests imposed by the far right."

Kerry's campaign rapid response blog has said more than he has on the stump. Yet he has made passing references.

During the Iowa primary contest, Jeffrey Toobin, the legal affairs reporter for The New Yorker, noted that Kerry had told another reporter that "he would appoint only judges who supported Roe v. Wade." Kerry added, "If some people want to call it a [litmus] test, they can all it a test."

Toobin says that Kerry told him, "I would only appoint judges who wouldn't reinterpret settled law. Roe is settled law. I don't think overturning Roe is a close kind of case. I'm not willing to go back on it."

Not surprisingly, the Bush campaign accuses Kerry of flip-flopping on litmus tests for judicial nominees, citing the speech I quoted earlier. The Bush campaign reads the speech, not unreasonably, as expressing Kerry's opposition to litmus tests for nominees. In fact, he only said he was opposed to right-wing litmus tests, not pro-choice tests.

Nonetheless, the Bush camp cites an April 2003 Boston Globe article stating that Kerry told a group of female Democrats "that if elected he would nominate to the high court only supporters of abortion rights under its Roe v. Wade decision."

This flip-flop issue seems a bit phony. Kerry has long been pro-choice notwithstanding the fact he is a practicing Catholic. He resolved this conflict between his religious beliefs and political position decades ago, in his public and private lives. It seems only to be expected that he would appoint only pro-choice Justices - especially given the reality that Republicans will tend to do the opposite.

In the end, I think Kerry is probably wise to avoid focusing on this issue. Public opinion polls show this issue resonates only with a small number of voters. And both parties have sent clear messages to the core groups who are concerned regarding their candidate's position.

Kerry as Depoliticizer? He Might Try, But Don't Count on It.

Interestingly, Kerry has also said in the past that he would not oppose appointing a lower court judge who had anti-abortion beliefs a problem -- since lower federal court judges must follow the Supreme Court.

As one seasoned legal affairs reporter for the Pittsburgh Post-Gazette, Michael McGough, points out, Kerry's position -- of the high courts versus the lower courts -- was once the norm in the Senate and White House. Moreover, to return to this position "could depoliticize somewhat a judicial selection process that has been slowed and soured by partisanship."

Very true. But Republicans thrive by feeding their bases these inflammatory issues. So don't expect such a depoliticization soon.


John W. Dean, a FindLaw columnist, is a former counsel to the president.

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