Next president could determine mood of highest court

Published 12:00 am Saturday, October 28, 2000

It may well be the next president’s lasting legacy. Yet the U.S. Supreme Court — the ultimate legal authority in America — is rarely a determining factor in most voters’ decisions. And even lawyers argue about whether it should be.

Legal scholars and political pundits concede that the next president will likely appoint at least two justices to the U.S. Supreme Court.

And, given the strong possibility of reelection, he could appoint as many as four.

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Two of the court’s nine members are likely to step down soon: Chief Justice William H. Rehnquist, who turned 76 this month, and Justice John Paul Stevens, who turned 80 this year. Justices Sandra Day O’Connor and Ruth Bader Ginsberg, who are 70 and 67 respectively, are likely candidates to step down within the next eight years.

That means either George W. Bush, the GOP candidate, or Al Gore, the Democratic candidate, could have the opportunity to appoint up to four of the nine members on the court.

And the ability of those individuals’ rulings to influence law — the court has split 5-4 on major issues ranging from affirmative action to abortion to federalism — makes the power to appoint them the equivalent of a political brass ring.

&uot;It’s the prized power of the president,&uot; Ridgecrest attorney Guy Lain said of the ability to appoint justices to lifelong tenure on the nation’s highest court.

And the candidates are well aware of that power. Bush has indicated he would appoint conservative judges who would seek to overturn such controversial rulings as the abortion rights decision, Roe v. Wade.

Gore, on the other hand, has indicated he would seek more liberal-minded justices who would continue to support Roe v. Wade and a woman’s right to have an abortion.

&uot;It certainly is the lasting legacy of the president, because the justices serve long after the the president has left office,&uot; said Joseph Parker, professor of political science at the University of Southern Mississippi.

While some experts see the political orientation of the Supreme Court to be like a pendulum — swinging from liberal to conservative depending on appointments — Parker said it is not that extreme. It is, instead, a matter of varying degrees, and each appointment nudges the balance one degree toward liberalism or conservativism.

A swinging pendulum

The question, though, is whether or not the president could actually swing the timbre of the court to a conservative or liberal one — whether by degrees or in larger steps.

&uot;Normally, presidents engage in very close scrutiny when choosing their justice who shares their interpretation of the Constitution and law,&uot; Parker said.

Yet a system of checks and balances — including American Bar Association’s ratings of potential judicial candidates and the U.S. Senate Judiciary Committee’s confirmation authority — can balance that president’s push for political appointments.

&uot;You really can’t get away with appointing people who don’t have superior qualifications,&uot; said Walter Brown, Natchez city attorney.

And, because of those superior qualifications, most of the justices become independent thinkers once on the bench. &uot;Most justices … regardless of who appointed them … generally come down on in the mainstream and are often very moderate in nature,&uot; Brown said.

Two recent exceptions, he noted, are the &uot;political appointment&uot; Clarence Thomas, an overt conservative, and Antonin Scalia, a conservative who also is &uot;widely recognized as a learned scholar,&uot; &160;Brown said.

As a result of that independent thinking, presidents are sometimes surprised by their appointments, just as Republican George Bush was by one of his two appointments, David Souter, whom&160;Parker said usually aligns with the liberals.

&uot;Sometimes, they go the other way,&uot; said Joe Zuccaro, a former state Supreme Court justice living in Natchez. &uot;They just don’t remain the same.&uot;

Zuccaro said it is common for judges at any level to change their views once they are on the bench, because of the different perspective on law that a judicial position provides.

&uot;By and large, once appointments are made (the justices’ rulings) don’t necessarily reflect the president who appointed that person,&uot; Brown said.

A ‘moderate’ reality

But that reality doesn’t always translate to the voters, who see the president as having the authority to appoint like-minded justices to the bench — and who have differing views on the power of that appointment.

&uot;A Republican president or a Democratic president, they’re both going to pick somebody who thinks like they do,&uot; said Anna Laura Smith of Natchez.

Which is just what Bill Lambert wants the president to do. While Lambert said the Supreme Court appointments are not at the top of his list of concerns going into the Nov. 7 election, he does think about it.

&uot;I wouldn’t say it’s very far down on the list because I’m a conservative,&uot; he said. And, &uot;if we have a conservative court, school prayer will come back up without a doubt.&uot;

Yet, according to Brown, Lambert may be an exception in the electorate.

&uot;I don’t think to the average man or woman, when they go to vote, that’s a major issue,&uot; Brown said. &uot;And I don’t think it should be because most of these appointments are mainstream.&uot;