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Voters 'elect' high court when picking a president


WASHINGTON -- Strong supporters of civil rights are wringing their hands over the most recent Supreme Court decision barring race as the "predominant factor" in legislative district drawing and other rulings viewed as anti-civil rights. Many are lamenting that "we told you so."

A key vote in all these decisions has been that of Associate Justice Clarence Thomas, appointed by President George Bush on the transparently improbable basis that he was the "best qualified" person available. Equally transparent was Bush's denial that the fact that Thomas was black had anything to do with his choice to replace the retiring Justice Thurgood Marshall.

Thomas' reputation and judicial record as a staunch conservative on issues of race made him an ideal political choice for Bush, seeking always to ingratiate himself with the Republican right wing. The appointment generated immediate predictions among liberals and especially black liberals that Thomas would vote consistently against their interests. That prediction has indisputably been borne out by Thomas' early record on the court.

When Democratic presidential nominee Michael Dukakis was waging his losing campaign against then-Vice President Bush in 1988, he sought diligently to make the future of the Supreme Court a voting issue.

Dukakis warned that a Bush presidency would push the court even farther to the right than it had already moved under President Ronald Reagan. But voters clearly gave greater weight to other things, such as how silly Dukakis looked driving around in an Army tank while wearing a battle helmet.

To be sure, there were other, serious matters that determined the outcome of that election. Most notable were the voters' desire to continue the Reagan era in the person of his loyal vice president and effective Bush campaign attacks on Dukakis' liberalism and patriotism.

Bush's nomination of Thomas triggered liberal and black opposition, culminating in the stormy Senate confirmation hearings over allegations of sexual harassment against the nominee. But the bottom-line issue was Thomas' rock-ribbed conservatism. By this time, it was too late for voters who were upset over the appointment to do much about it except call or telegraph their senators.

At this point, Dukakis had every right to say "I told you so." He was inarguably right in noting that the matter of any Supreme Court appointments in the next administration would be among the most important decisions the next president would make, and therefore voters should take it into serious consideration in casting their votes.

Dukakis was not the first presidential nominee to raise the issue of the future of the Supreme Court in his campaign. President Jimmy Carter in his 1980 campaign and Vice President Walter Mondale in 1984 sought to arouse voters with warnings about the rightward direction of the court in Reagan's hands, but again to no avail. Who sits on the Supreme Court simply has not been something that most voters weigh in voting for president, except perhaps among blacks.

The same is true about the choice of a vice president. Candidates who believe they have made a superior selection of their own running mate often try to elevate the identity of the vice president to a prime voting issue. But there is little evidence that it is a governing factor in how voters cast their ballots.

In 1968, for example, Sen. Ed Muskie, the Democratic vice presidential nominee, was rated much more favorably in the polls than GOP nominee Spiro Agnew, but the Republican ticket of Nixon-Agnew won anyway. In 1988, having the much-maligned Dan Quayle as his running mate didn't keep Bush out of the White House.

This is so in spite of ample evidence of the importance of such a choice in a society in which so many vice presidents have been raised to the presidency by death or other circumstance.

While voters know who the running mates are in a presidential election, it's true that it can't be predicted with certainty who will be selected for the Supreme Court by a future president. But educated guesses can be made. Voters who now deplore the direction of the Supreme Court should ask themselves whether they considered the likely impact on the court's makeup when they cast their last few votes for president.

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