Americans Are Electing a Supreme Court Too

His cancer surgery over the weekend reminds us that Chief Justice William Rehnquist, appointed to the Supreme Court by President Nixon, is not going to be on the court forever.

Neither is John Paul Stevens--a Ford appointee and, like Rehnquist, a World War II veteran. Nor is the third most senior justice, Sandra Day O'Connor, who has now served through six presidential terms.

Their successors will control national policy on the most sensitive and profound political questions of our day--abortion, race, religion and gay marriage. And that means that the most important domestic issue confronting a President Bush or a President Kerry will be his appointments to the Supreme Court.

The court's current lineup hasn't changed since 1994--the longest period without a new justice since the Marshall court of the early 1800s. In the last century, by my calculations, justices on average retired when they were 71 years old after about 14 years on the court.

In 2005, Rehnquist will be 81 and will have served on the court for 33 years. Stevens will be 85 and will have served for 30 years. O'Connor will be 75 and will have served for 24 years. Others are not far behind: Justice Ruth Bader Ginsburg, a Clinton appointee, will be 72, with 12 years' service. Justice Antonin Scalia and Justice Anthony Kennedy will be 69, with 19 and 17 years respectively. Only Justice Clarence Thomas will be below the age of 65.

Even one new justice could profoundly affect a court that is closely divided on important social issues. And two new justices could shift national policy dramatically.

Slim 5-4 majorities stand behind the decisions that have struck down prohibitions on partial-birth abortion, approved affirmative action programs in colleges and universities, allowed the use of vouchers at private religious schools and restricted use of the death penalty.

Only a one-vote margin has supported restricting Congress' regulatory power in favor of the states, which affects anti-discrimination, criminal and environmental laws.

A 5-4 majority last term agreed that the nation was at war after the Sept. 11 attacks and that the president and Congress could authorize the detention of "enemy combatants" in the war on terror.

A 6-3 margin defends the basic right to abortion first recognized in Roe vs. Wade and the expansion of gay rights in Lawrence vs. Texas that has spurred efforts for a constitutional amendment to prohibit same-sex marriage.

With a closely divided Senate a certainty, Supreme Court confirmation hearings in the next four years could make the outrages of the Robert Bork and Clarence Thomas hearings look tame. And the filibuster, used by Democrats to block Bush's lower-court nominees, may be only the beginning of procedural shenanigans.

Just how bloody a battle might be, however, depends on which justice resigns and which candidate wins. A Bush nominee replacing the reliably conservative Rehnquist wouldn't change the court's status quo or draw a massive fight. If John Kerry wins, however, his choice to replace Rehnquist would mean major change and, most likely, a knock-down, drag-out struggle.

A more politicized nomination and confirmation process is the Supreme Court's own doing. Over the last half-century, it has arrogated power--weakening the role of states and even Congress--when it comes to many political and moral questions. The only way for interest groups and citizens to change policy on abortion, affirmative action or gay rights is to change the justices on the Supreme Court.

Despite bruising confirmation proceedings, however, history shows that it is the president who still makes the decisive choice when it comes to the court. In the last century, the Senate has confirmed 89 percent of the president's nominees to the Supreme Court. Twelve of the last 14 nominees have taken their seats on the court.

Both candidates are well aware of the stakes, and both are certainly readying nominees. Kerry has said he would nominate a jurist who would protect abortion rights. According to the New York Times, Bush told donors that he expected to replace one justice shortly after his reelection and that he might be replacing as many as four in a second term. His role models for nominees, he has said, are Scalia and Thomas.

But either candidate could be surprised. Republican President Eisenhower chose Chief Justice Earl Warren and Justice William Brennan, whose late-blooming activist tendencies caused him to consider their appointments the biggest mistakes of his presidency. The first President Bush appointed David H. Souter, who has evolved toward the liberal end of the spectrum.

John Yoo is a visiting scholar at AEI.

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