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Direction of high court hangs on election

WASHINGTON — As Election Day nears, Sens. John McCain and Barack Obama are sparring over the economy, taxes, health care and each other. But the next president of the United States may make his most lasting imprint on the U.S. Supreme Court.

With four of the nine justices in their 70s and one in his 80s, the next president likely will have the privilege of appointing at least one new justice to the court, experts say, if not two or three.

Because the most likely retirees lean left, McCain has the best chance of either candidate to significantly remake the court in his own view, by replacing liberals with conservatives.

By contrast, three of the four most conservative jurists are relatively young, and apparently in good health. The fourth, Antonin Scalia, 72, is unlikely to retire any time soon, either.

Though he has angered many conservatives through the years by taking contrary stances on the environment, campaign finance and medical research, McCain has pledged to choose judges in the mold of President Bush's appointees, Chief Justice John Roberts and Justice Samuel Alito Jr., who are favorites within the conservative movement.

"Whatever is going to happen with the economy is going to be affected by a lot more people and a lot more forces than the president," said Wendy Long, a former clerk to conservative Justice Clarence Thomas and chief counsel for the Judicial Confirmation Network, which advocates for the appointment of conservative judges.

"It's going to be affected by the markets, it's going to be affected by Congress and … by what private banks do, and individuals. But what happens to the court is going to be up to one man."

She added: "Whoever it is, Obama or McCain, is going to basically shape the court for most of this century and shape the interpretation of the Constitution."

Liberal activists agree. The court now is roughly split four to four, with Justice Anthony Kennedy, 72, a Ronald Reagan appointee, often casting the deciding vote. Replacing liberal Justices John Paul Stevens, 88, or Ruth Bader Ginsberg, 75, with a conservative, as McCain pledges to do, would push the court to the right.

Which is why, as the Judicial Confirmation Network runs ads in swing states urging support for McCain, the liberal People for the American Way is running ads in swing states for Obama.

Kathryn Kolbert, president of the group, says a whole host of policies hangs in the balance, including abortion, environmental regulations and the right of citizens to sue corporations.

"I think this election will have the most significant effect on the Supreme Court than any we've seen in 40 years, because the court is so divided, and it's on the brink of being taken over by conservative forces," Kolbert said.

• • •

Philosophically, the argument is how the Supreme Court should interpret the Constitution. McCain, Bush and other conservative leaders say they favor so-called strict constructionists, jurists who view the Constitution not as a living, changing document, but one that grants rights only specifically given by the Constitution.

Practically speaking, the biggest affront to this approach was the 1973 ruling Roe vs. Wade, which allowed legal abortion in all 50 states.

At issue was the high court's finding that the Constitution guarantees a right to privacy — and, by extension, a woman's right to seek an abortion. (Which is why McCain's running mate, Alaska Gov. Sarah Palin, raised eyebrows when she told CBS News anchor Katie Couric that she supports overturning Roe vs. Wade, yet also believes the Constitution guarantees the right to privacy.)

But this view has many other implications, including the government's ability to regulate business, the legal basis for affirmative action in hiring, and the prosecution of class-action suits.

McCain gave his most explicit nod to this philosophy in a speech in May at Wake Forest University in North Carolina, which is often quoted by conservative activists. "My nominees will understand that there are clear limits to the scope of judicial power, and clear limits to the scope of federal power," he said.

Those on the other side prefer a more open-ended approach to regulation, the courts, and civil and personal liberties. Obama has said he would appoint judges with empathy for others, and whose experiences have shaped their judicial philosophy. Give him the keys to the Supreme Court, conservatives warn, and say hello to national requirements for gay marriage, an end to restrictions on certain types of abortions, and an American business community ravaged by liability lawsuits.

Carl Tobias of the University of Richmond Law School in Virginia, an expert in federal judicial appointments, said in reality an Obama presidency most likely would ensure the status quo.

"All this talk about how Obama would make this a very liberal court or something is absurd," Tobias said. "If he is elected, the opportunities are just not going to be there, because I think he's going to be replacing people with relatively like-minded people."

In their own words | from the Oct. 15 debate

"I believe strongly that we should have nominees to the United States Supreme Court based on their qualifications rather than any litmus test. … I voted for Justice Breyer and Justice Ginsburg. Not because I agreed with their ideology, but because I thought they were qualified, and that elections have consequences when presidents are nominated. … I do not believe that someone who has supported Roe vs. Wade ... would be part of those qualifications."

John McCain

"Well, I think it's true that we shouldn't apply a strict litmus test, and the most important thing in any judge is their capacity to provide fairness and justice to the American people. And it is true that this is going to be, I think, one of the most consequential decisions of the next president. It is very likely that one of us will be making at least one and probably more than one appointments, and Roe vs. Wade probably hangs in the balance."

Barack Obama

The current lineup of justices

The left The middle The right

John Paul

Stevens, 88, appointed by President Gerald Ford, 1975

Ruth Bader Ginsberg,

75, appointed by President Bill Clinton, 1993

Steven Breyer, 70, appointed by President Bill Clinton, 1994

David Souter, 69, appointed by President George Bush, 1990

Anthony Kennedy,

72, appointed by President Ronald Reagan, 1988



Antonin Scalia, 72, appointed by President Ronald Reagan, 1986



Clarence Thomas, 60, appointed by the first President Bush, 1991

Samuel Alito Jr.,

58, appointed by President Bush, 2006



John Roberts, 53, chief justice, appointed by President Bush, 2005

Direction of high court hangs on election 11/01/08 [Last modified: Tuesday, November 4, 2008 10:08pm]

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