Court may face radical change

The next president could reshape the Supreme Court like no other since Democrat Franklin D. Roosevelt

October 31, 2004|By Gail Gibson | Gail Gibson,SUN NATIONAL STAFF

The disclosure that Chief Justice William H. Rehnquist has thyroid cancer has thrown into sharp focus a potent campaign issue - the powerful impact the next president is likely to have on an aging and narrowly divided Supreme Court.

Rehnquist, the court's leading conservative figure for a generation, is expected to be back at work tomorrow morning after being hospitalized and undergoing surgery a week ago. But his return to the bench will be heavily weighted with questions about his prognosis and what it could mean for the future of the high court.

The next president could reshape the Supreme Court like no other since Democrat Franklin D. Roosevelt, who named nine justices during his 12 years in office. Because the current court is so closely split on so many high-profile issues, even a single vacancy could alter the legal landscape for decades.

"To the extent that a Democrat or Republican this election says, `Well, I really don't like either of these candidates,'" they still should care a great deal about whom the next president might appoint to the court, said Douglas W. Kmiec, a constitutional law expert at Pepperdine University who worked at the Justice Department under President Reagan and the first President Bush.

"The Constitution is a great document," he said. "But it's open to some interpretation, and who's doing the interpreting can make all the difference."

The membership of the nine-judge panel has not changed in a decade, the longest the court has gone without a new justice since the early 1800s. It is a group that has grown old together. Two of the justices are in their 80s, two more are over 70. Only one, 56-year-old Clarence Thomas, is under age 65.

Before Monday's announcement that Rehnquist, who turned 80 on Oct. 1, has thyroid cancer and had undergone a tracheotomy, three other justices also have faced cancer - John Paul Stevens, 84; Sandra Day O'Connor, 74; and Ruth Bader Ginsburg, 71.

All four frequently have been mentioned as possible candidates for retirement, mostly because of their age and questions about their health. Some court observers also have suggested that David H. Souter, 65, who has never disguised his dislike of Washington life, could step down as well in the near future.

"It's not an `if' they have an opening, it's `when' they have an opening," said Trevor Parry-Giles, a professor of political communication at the University of Maryland, College Park and the author of a book about rhetoric in the Supreme Court nomination process.

Despite the growing likelihood of sweeping change, the issue of the Supreme Court's future has been overshadowed in this year's heated presidential race by terrorism, the war in Iraq and the economy. Neither President George W. Bush nor his Democratic challenger John Kerry has said whom he might nominate or how he would pick someone.

Instead, debate over the court's future has been fueled mainly by interest groups that see advantage in using the issue to drive their base constituents to the polls.

Kerry raised it in a conference call with black church leaders Monday, invoking the disputed 2000 presidential election that ended with the Supreme Court swinging the election to Bush - something some Democrats fear could be repeated.

"We know that two or three justices will be retiring in the next years," Kerry told the church leaders. "The Supreme Court is at stake. Affirmative action was decided by one vote. The presidency of the United States was decided by one vote."

The candidates' most direct exchange on the court came during their second debate, in St. Louis, where an audience member asked Bush: "Mr. President, if there were a vacancy in the Supreme Court and you had the opportunity to fill that position today, who do you choose and why?"

Bush, who has pointed to conservatives Antonin Scalia and Thomas as favorites on the court, repeated his often-cited standard that he would put "strict constructionists" on the court. In his appointments to lower federal courts over the past four years, Bush has shown a steely determination to shift the courts to the right - nominating several outspoken conservatives, several of whom then faced brutal confirmation fights in the narrowly divided Senate.

"We've got plenty of lawmakers in Washington, D.C. Legislators make law; judges interpret the Constitution," Bush said. "And I suspect one of us will have a pick at the end of next year, next four years. And that's the kind of judge I'm going to put on there. No litmus test except for how they interpret the Constitution."

The president left some listeners puzzled by also pointing to the 1857 Dred Scott decision justifying slavery as an example of improper judicial activism that strayed from a strict reading of the language of the U.S. Constitution.

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