Courts on Political Stage

Both Democrat Al Gore and Republican George W. Bush have pointedly campaigned this year on their views of the federal courts, including the Supreme Court, with profoundly divergent implications for American law and policy. Voters may be listening more intently than usual, for at least three good reasons.

First, three Supreme Court justices, Chief Justice William H. Rehnquist and Associate Justices Sandra Day O’Connor and John Paul Stevens, are age 70 or older and could retire in the next four years. With 20 of the court’s 73 signed decisions in the term just ended decided by 5-4 majorities, the appointment of new justices could swing the court decisively--to the right, left or center--on issues such as criminal justice, abortion, school prayer gun control, the environment and the state-federal relationship.

Also, if the past is a guide, the next president can also expect to appoint a quarter or more of the 655 seats for district court judges and the 179 appeals court judgeships. These appointments represent another chance to shape federal law for years. With the Supreme Court deciding fewer cases in recent years, the 13 courts of appeal are more often deciding the law in their own regions.

Finally, bitter partisan wrangling over many of President Clinton’s court nominees has gridlocked judicial confirmations for much of his administration, heightening concern about the fate of the next president’s nominees.

Although, as one pollster has noted, more Americans can name the Three Stooges than three Supreme Court justices, voters are telling pollsters that they will consider Gore’s and Bush’s different views on the Supreme Court when they mark their ballots.

Both men have said relatively little about just whom they would appoint to the federal bench, especially compared with their detailed plans to reform education or fix Medicare. That’s appropriate. Judges appointed as political payback or because they are expected to rule a certain way would undermine an independent judiciary. But each man’s statements give voters strong clues about what they would do in office.

As Texas governor, Bush has named five of the nine sitting justices on that state’s supreme court. By most accounts, the men and women he picked are moderate conservatives and consensus builders. Yet, asked during the primary campaign which Supreme Court justice he most respects, Bush named Antonin Scalia and Clarence Thomas, the staunchest conservatives and the flamethrowers of the court. These are troubling choices. Both men are fierce opponents of abortion rights. Scalia, whose vitriolic prose is often directed toward his colleagues, wrote the high court’s decision invalidating a portion of the Brady handgun control law, and Thomas, appointed by Bush’s father, cast deciding votes to make it harder for minorities to prove they were victims of job discrimination. Not long after he joined the court, Thomas argued in a dissenting opinion that beating a shackled prisoner was not “cruel and unusual punishment.”

Are these positions that Bush himself supports? In some instances, yes; in others, we don’t know. Although Bush opposes abortion in most instances, he has said he would not impose an anti-abortion “litmus test” on his Supreme Court nominees. Yet he has characterized Roe vs. Wade, the 1973 decision legalizing abortion, as “a reach.” “It overstepped constitutional bounds, as far as I’m concerned.”

Bush has said he wants federal judges who “will strictly interpret the Constitution” and not legislate from the bench. What, then, does he think about the current court’s conservative majority--Scalia and Thomas leading the way--which has struck down more federal laws in the past five years than the so-called activist liberal court voided in its heyday?

Vice President Gore, playing up the differences between himself and Bush, often repeats his support for laws protecting the environment, abortion, gun control, affirmative action and greater tolerance for gays and lesbians--positions from which Bush distances himself. Gore has identified the late Thurgood Marshall, who championed civil rights laws as an advocate and during his 24 years on the high court, as the Supreme Court justice he most admires. The vice president says he would appoint justices who regard the Constitution as a “living document that should be interpreted to reflect our nation’s growth and evolution.” Gore also says his judges would be “strong defenders of civil and individual rights, and represent America’s full diversity.”

The election of the next president is not a decision about just the next four or eight years but rather one that may reverberate for decades to come. The federal courts will face pressing questions about the scope of the 2nd Amendment’s language on guns, the reach of federal environmental regulation, the ability of states to restrict abortion or other medical procedures and a host of other high-voltage issues.

The next president should be committed to appointing judges who will advance civil rights, privacy and environmental protection, issues for which Gore is explicit in his support.

The president should seek out men and women with broad legal experience, but also individuals sensitive to the enormous complexity of human experience. The federal courts are no place for jurists who cling to preconceived notions or a formulaic judicial philosophy. The goal of the next president should be to choose judges who appreciate the law’s majestic power to improve people’s daily lives.