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Next president gets to reshape judiciary

THE BALTIMORE SUN

WASHINGTON - The Supreme Court, due back in session early next month, will barely be settled into the routine of a new term before it gets a glimpse into what its future could be.

Five weeks after the term opens, the nation's voters go to the polls to pick a new president - a chief executive who could have a historic opportunity to shape the court for some time to come.

The two candidates, if given the chance to name new justices, almost surely would pick very different nominees. Republican George W. Bush and Democrat Al Gore have sharply contrasting visions of what a future Supreme Court should look like.

"This election year," proclaims People for the American Way, a liberal advocacy group, "could well decide whether the court will facilitate greater equality or turn back the clock on the social justice gains of the past 50 years."

Counters the Family Research Council, a conservative advocacy group, "In the 2000 elections, Americans can choose to elect a president and senators who will faithfully appoint judges who aren't closet legislators."

Bush has suggested that he most admires the court's two most conservative members, Antonin Scalia and Clarence Thomas. Gore has mentioned no names publicly, but he has given no indication that he would change President Clinton's practice of naming moderate to liberal jurists.

With the court closely divided along ideological lines, on issues including abortion, affirmative action and school prayer, one or two new justices could make a major difference in the court rulings.

No seat on that court is vacant, and no one outside the court knows for sure when an opening will occur. As of now, that seems likely no earlier than next spring or summer. Statistical probabilities of a vacancy, rather than the plans of any justice to depart, appear to be fueling speculation.

The court has gone six years and one month without a vacancy - the longest stretch in 177 years.

The last three presidents have named seven associate justices and a chief justice: President Clinton, two; President George Bush, two; and President Ronald Reagan, three, in addition to elevating Justice William H. Rehnquist to chief justice.

But even without immediate chances to name a justice, the next president will get an early opportunity to start shaping the lower federal courts. There are 63 vacancies on the federal courts: 42 in the basic trial courts called District Courts, and 21 in the federal courts of appeal. Immediately after Inauguration Day in January, the new president can start choosing judges for those slots.

The federal judiciary below the Supreme Court comprises 834 seats - one of the largest batches of potential appointments for any president, since vacancies occur regularly.

Overall, Clinton has named 374 federal judges at all levels, George Bush 195, and Reagan 389. Before Reagan, President Jimmy Carter had no chance to name a Supreme Court justice, but he did pick 265 judges to sit on lower federal courts.

Although most presidents try to make the most of their appointment power to move the law in a direction they favor, in this year's campaign it appears that neither Bush nor Gore is treating the future of the courts - especially the Supreme Court - as a major campaign issue.

Each has spoken about it, but not at length, and neither has raised it to the priority level occupied by such issues as education and prescription drug coverage.

If that is something of a void, politically active advocacy groups are strenuously working to fill it, attempting to get the candidates to focus on the issue, and to persuade the voting public that the outcome of this election may be decisive for the Supreme Court's future.

For example, the National Abortion Rights and Reproductive Action League, a liberal group that is sure to have access and influence in a Gore administration, as it has in the Clinton administration, has been running ads with the headline, "It's the Supreme Court, Stupid" as if that were the dominant issue before the voters.

Across the ideological divide, the Family Research Council, whose conservative views are likely to get a sympathetic hearing in a Bush administration, has just launched its "Courting Justice Campaign," promoting the choice of judges who would be "free from the forces of power politics and personal views."

The National Legal Center for the Public Interest, a conservative advocacy organization, says that "there is perhaps no more tempting truism than the notion that the results in November will fundamentally reshape American jurisprudence at the highest level."

But the group raises a few cautionary notes. It points out that, whatever a president thinks a Supreme Court nominee is likely to do, there could be disappointments. It cites President Dwight Eisenhower's dissatisfaction with the strong liberalism of two of his appointees, Chief Justice Earl Warren and Justice William J. Brennan Jr.

President Bush experienced something of the same phenomenon: his choice of Justice David H. Souter, thought to be a conservative, unintentionally placed on the court a solid member of the most liberal bloc.

The National Legal Center also says that, even if a judge does turn out to be conservative, the chances are that the very idea of being a conservative means that the judge will not lightly overturn past rulings, even if uncomfortable with them.

Finally, that organization says, the present court is "not as precipitously balanced as some might expect."

There was a great deal of consensus, it suggests, even in the contentious term of the court that ended in June with such sharply divided rulings as those on abortion, school prayer, homosexuals and aid to parochial schools.

Much of the speculation about the next president's opportunity to fill Supreme Court vacancies centers on three justices: Chief Justice Rehnquist, who turns 76 on Oct. 1, and Justices Sandra Day O'Connor, 70, and John Paul Stevens, 80.

The fact that none of them has given even a hint of choosing to retire has done nothing to end the speculation. So far as is known, neither Bush nor Gore has focused on lists of potential justices. But speculation is rife about what they might do.

It is commonly assumed, by outside observers of the court, that if O'Connor were to retire, the next president would have no realistic option politically but to name another woman; otherwise, the court would be left with a single female justice, Ruth Bader Ginsburg.

If Bush is elected, it is assumed that he would turn to the most ideologically conservative appeals court - the 4th U.S. Circuit Court that sits in Richmond - for future justices. One of its conservatives is Judge Karen J. Williams, 49, who was put on that court in 1992 by candidate Bush's father.

If Gore is elected, he is likely to consider an experienced female judge from his home state of Tennessee, Martha Craig Daugherty, 58, named by Clinton to the 6th U.S. Circuit Court of Appeals in Cincinnati after serving on the Tennessee Supreme Court.

Also mentioned as a possible Gore nominee is Judith W. Rogers, 61, put on the U.S. Circuit Court of Appeals in Washington, D.C., by Clinton after she had served as chief judge on the District of Columbia's highest local court.

Those speculating about other nominees by Bush or Gore believe that each would seek to become the first president to name a Hispanic justice - if that nominee won't replace a female justice.

Bush could elevate Alberto R. Gonzales, a former member of Bush's Cabinet, who he placed on the Texas Supreme Court. Gonzales, 45, has been a judge for less than a year, and that could diminish his chances of an early appointment.

For Gore, the usual speculation is that he would turn to Jose A. Cabranes, 60, now on the 2nd U.S. Circuit Court of Appeals in New York City; Clinton named him to that position.

Gore, some observers have suggested, also would consider a court nominee achieving another "first": a disabled person.David S. Tatel, 58, named by Clinton to the federal appeals court in Washington, D.C., is a widely respected judge who is blind.

There are more names circulating about potential Bush nominees than likely Gore selections.

Among others who have made it onto lists of possible Bush choices are three conservative judges in the 4th Circuit Court - Chief Judge J. Harvie Wilkinson III, 55, a Reagan appointee, and two George Bush appointees, J. Michael Luttig, 46, and a Baltimorean, Paul V. Niemeyer, 59.

Outside the 4th Circuit Court, another potential Bush nominee is a friend, Jerry E. Smith, 53, a former Houston lawyer and now a conservative judge on the 5th U.S. Circuit Court of Appeals.

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