updated 9/27/2004 3:04:17 PM ET 2004-09-27T19:04:17

The next president’s most enduring legacy may be in an area little mentioned in the campaign so far: the federal courts, where rulings on such hot-button issues as abortion, gay marriage and the death penalty could have lasting impact.

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With an aging Supreme Court, it’s likely that over the next four years either President Bush or Democrat John Kerry will choose one or more new justices, along with scores or even hundreds of federal appeals court and trial judges.

Courts can have the crucial last word on important and contentious issues, as recent rulings on affirmative action and presidential war powers attest. But chances are most voters won’t hear specifics about the kind of judges either candidate favors.

“As a campaign issue I think it’s been almost invisible,” said Supreme Court historian David Garrow.

That’s a departure from the 2000 campaign, when both Bush and Democratic nominee Al Gore pointed to particular Supreme Court justices they admired and partisans on both sides spoke with certainty about an expected Supreme Court retirement.

Four years later, not one Supreme Court justice has left the bench. That makes it even more likely there will be an opening sometime soon, law professors and activists said.

10 terms without a vacancy
Next month the current court begins its 10th term without a vacancy. Only one justice, Clarence Thomas, is younger than 65. Speculation about retirements has focused on Chief Justice William H. Rehnquist, who will turn 80 in October, and Justices John Paul Stevens, 84, and Sandra Day O’Connor, 74.

“It’s not that people were crying wolf last time, it’s just that it didn’t play out the way we expected,” said Duke University constitutional law professor Erwin Chemerinsky.

The candidates may be wary of predicting any vacancies this time, and other more immediate issues are crowding out larger discussion of the court and judges, scholars said.

Bush did mention the issue in his acceptance speech at the Republican convention, criticizing judges he contends have gone too far in rulings declaring gay marriage legal and a ban on certain abortions unconstitutional.

“I support the protection of marriage against activist judges,” the president said, “and I will continue to appoint federal judges who know the difference between personal opinion and the strict interpretation of the law.”

For his part, Kerry promises on his campaign Web site that as president he would try to “reverse damage done to civil rights laws by right-wing judges” and would “only appoint judges with a record of enforcing the nation’s civil rights and anti-discrimination laws.”

If Bush wins a second term, he could be on his way to naming more federal trial and appeals judges than either of the last two-term presidents. Bill Clinton appointed 367 judges, including two Supreme Court justices, and Ronald Reagan chose 357 judges, including three Supreme Court justices. Reagan also elevated Rehnquist from associate to chief justice.

With 201 judges appointed so far, Bush is already ahead of the 187 his father chose during his one-term presidency — though many of the current president’s nominees have had to weather a rocky confirmation process in the highly partisan Senate.

Importance of Supreme Court vacancies
Picking a Supreme Court justice would be a bigger prize.

Supreme Court justices, like other federal judges, can remain on the job decades after the president who chose them. They serve for life or until they choose to retire.

Rehnquist is the longest-serving member of the high court, chosen 32 years ago by Richard Nixon. Stevens is still there 29 years after he was Gerald Ford’s lone Supreme Court pick.

The nine-member high court is divided basically into three camps — conservative, middle-of-the-road and moderately liberal — and frequently lines up 5-4 on the most difficult cases. Depending on who is counting, the court is one vote or two away from overturning Roe v. Wade, the 3-decade-old ruling that affirmed the legality of abortion.

In an AP-Ipsos poll taken last week, 56 percent of those surveyed said they wanted the president to nominate a Supreme Court justice with conservative political views if a vacancy occurs; 37 percent said they preferred a justice with liberal views.

Both sides in the presidential campaign have raised the ideological issue among their own strongest supporters. A recent Democratic fund-raising letter on behalf of Democrats, for example, warned of the dangers of re-electing Bush.

“Are you ready for Chief Justice Antonin Scalia?” the letter said. Scalia and fellow conservative Thomas are the justices Bush cited in 2000 as models for future picks.

Voters should be aware of the importance of Supreme Court vacancies, said Elliot Mincberg, legal director of People for the American Way, a liberal group that has opposed several of Bush’s lower-court picks.

“It’s not the next four years that is the issue,” Mincberg said. “It’s the next 20, 30 or 40 and what people’s rights and liberties are going to look like.”

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