A Supreme decision

October 18, 2004|By Cynthia Tucker

ATLANTA - The presidential candidates have sparred over the war on terror, jobs and tax cuts. Each man has run advertisements disparaging the other's fitness for office.

But President Bush and Sen. John Kerry have barely begun to discuss what may be the most important issue of the campaign: the fate of the U.S. Supreme Court.

While many voters may believe Iraq is the most important issue, Mr. Bush and Mr. Kerry don't hold out dramatically different plans for handling the U.S. occupation. But the two men do offer acutely different descriptions of the sort of justices they would appoint. And one of those two sharply divergent visions will affect the nation for the next generation and beyond.

In the final debate Wednesday, Mr. Kerry was forthright, saying that he would not appoint judges who would overturn the 1973 decision in Roe v. Wade, which declared that women have the right to decide for themselves whether to carry a pregnancy to term. That rules out right-wing appointees in a Kerry administration.

Mr. Bush has already disclosed his idea of the perfect justices: Clarence Thomas and Antonin Scalia. Indeed, in his new biography of Thomas, Atlanta Journal-Constitution reporter Ken Foskett suggests even more to come. Regarding a well-received speech Mr. Thomas made in February 2001 to the conservative American Enterprise Institute, Mr. Foskett writes: "Thomas went home that night a winner. ... There was even talk of Thomas succeeding [William H.] Rehnquist as chief justice."

That's troubling. Mr. Thomas and Mr. Scalia oppose every progressive idea, every enhancement of civil rights and every expansion of individual rights that come before the court. If a Scalia-Thomas view of the U.S. Constitution had prevailed on the nation's highest court in the 1950s, black Americans would still be drinking from separate water fountains and sitting at the back of the bus.

In a speech last year defending the scaling back of individual rights during wartime, Mr. Scalia said: "The Constitution just sets minimums. Most of the rights that you enjoy go way beyond what the Constitution requires." That's scary stuff.

But Mr. Thomas may be scarier. Conservatives have coined the phrase "activist judge" to disparage jurists whose rulings they don't agree with. But as Mr. Scalia described Mr. Thomas to Mr. Foskett, Mr. Thomas is about as "activist" as it gets - the Supreme Court justice most likely to overturn precedents established by prior courts.

"He doesn't believe in stare decisis [let the decision stand], period," Mr. Scalia told Mr. Foskett. "If a constitutional line of authority is wrong, he would say let's get it right. I wouldn't do that."

A Thomas court might start a crusade against modern-day constitutional rights, overturning everything from the right of all criminal defendants to have a lawyer to the right of women to have access to contraceptives.

The next president could appoint as many as four justices to the nation's highest court. John Paul Stevens and Chief Justice Rehnquist are now octogenarians. Sandra Day O'Connor and Ruth Bader Ginsburg are both cancer survivors in their 70s. But given that so many important decisions of late have been decided by 5-4 margins, the next president need appoint only two to tilt the court persuasively toward his ideology. If he appoints two 40-ish justices, he will change the court for a very long time.

To use a phrase Mr. Bush has employed with great relish lately, the president can run, but he can't hide from his ideological romance with right-wing jurists.

If he gets a second term, he would try to ram through the Senate an activist court poised to turn back the clock on the individual rights Americans take for granted.

Cynthia Tucker is editorial page editor for The Atlanta Journal-Constitution. Her column appears Mondays in The Sun.

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