News & Politics

Bush v. Kerry

George Bush or John Kerry Will Be Able to Remake the Supreme Court in His Image. Here's How the Two Very Different Courts Might Look.

This presidential election will affect the economy and America's role in the world. But most important, it will shape the future of the Supreme Court of the United States. No new justice has been appointed since President Clinton named Stephen Breyer in 1994. That ten years is the longest period in history in which the Supreme Court has remained constant.

Change almost certainly will come in the next presidential term. Even for an institution whose members are known for longevity–Oliver Wendell Holmes lived to 93–current justices are aging. Chief Justice Rehnquist is 79. John Paul Stevens turns 84 this month. Two other justices, Sandra Day O'Connor and Ruth Bader Ginsberg, have had health problems. And the combative Antonin Scalia–who, as the recently released papers of Justice Harry Blackmun reveal, has never been comfortable on the Supreme Court–seems more and more likely to depart. That leaves only four justices likely to remain for a decade or more–Breyer, David Souter, Anthony Kennedy, and Clarence Thomas.

Whoever occupies the Oval Office after January 20, 2005, will determine the court's direction for the next generation. That said, predicting what effect a particular president might have isn't easy.

The cable-news predictions will be simple: A liberal Democrat will appoint liberal justices, whereas a relected President Bush will push the court in a more conservative direction. The only thing working against that argument is history.

The most dominant conservative justice of the 20th century was appointed by our most liberal president, Franklin Delano Roosevelt. Felix Frankfurter has become the paragon of modern conservative judicial thought.

Democratic president Harry Truman appointed four justices. All of them would be considered conservative these days, especially Texan Tom Clark, but Sherman Minton, Fred Vinson, and Harold Burton as well.

Credit–or blame–for the liberal revolution on the Supreme Court goes to Republican president Dwight Eisenhower, who appointed Earl Warren and William Brennan Jr. With the help of another Eisenhower nominee, Potter Stewart, they transformed the modern court into a powerful instrument for social change.

John Kennedy appointed Byron White, a staunch opponent of the Roe v. Wade decision. President Nixon appointed Harry Blackmun, who not only authored Roe but became an ardent opponent of the death penalty.

Republican Gerald Ford named liberal Justice Stevens, and Republican George Bush named David Souter to replace Brennan. Souter has now filled Brennan's role as a reliable supporter of liberal causes.

It is widely believed that Bush's first Court appointment, if he is reelected, will be chief White House counsel Alberto Gonzalez. And if Scalia should leave the Court, Bush is said to be looking at Samuel Alito Jr., a New Jersey federal judge known in legal circles as "Scalia lite."

If Gonzalez doesn't become the first Hispanic to serve on the Court, Bush is likely to turn to another Texan of Spanish descent, Emilio Garza, an opponent of abortion who was named to the federal bench by the President's father in 1991.

At least three Northern Virginia residents surely would be considered–former Whitewater prosecutor Kenneth Starr, Solicitor General Ted Olson, and J. Michael Luttig, a federal judge on the Fourth Circuit.

At 63, Olson might be too old to be nominated to the court. Olson certainly would endorse Luttig, who delivered the eulogy for Olson's wife, Barbara, after she was killed on the plane that hit the Pentagon on September 11, 2001.

Another local candidate would be Ken Starr protégé John Roberts, who recently won confirmation to the US Court of Appeals for the DC Circuit, a traditional steppingstone to the Supreme Court.

If John Kerry is elected president, Justice Scalia might have second thoughts about leaving. But Kerry still would likely have at least two appointments. It's likely that Republicans will maintain control of the US Senate, which must confirm Supreme Court nominees. This is bad news for the liberals' number-one hope, Laurence Tribe.

Tribe is a close friend of Kerry's top adviser, Robert Shrum. And Shrum would like nothing more than to elect a president who would name Tribe, 62, to the Court.

If Kerry looks for a younger man, he might turn to Wilmer, Cutler & Pickering partner Seth Waxman, who served as Solicitor General in the Clinton administration, as did another candidate, North Carolina native Walter Dellinger.

To replace O'Connor, Kerry might consider replacing one Sandra with another. Federal appeals-court judge Sandra L. Lynch of Boston is Kerry's hometown favorite and would be on any shortlist. Appointed by President Clinton in 1994 to replace Stephen Breyer, Lynch was supported at the time by both Kerry and his colleague Edward Kennedy.

Other possible Kerry appointees are appeals-court judge David Tatel and Yale professor and former Harry Blackmun clerk Harold Koh. A moderate choice for the bench could be former Patton Boggs partner Merrick Garland, a Democrat considered confirmable by a Republican Senate.

Should a Kerry victory help the Democrats win back control of the Senate, the possibilities grow even more interesting. They might include a sitting senator whose own presidential ambitions might be dashed by a Kerry victory. Hillary Clinton's friends long have said that if the former law-school professor could pick one job in Washington, it wouldn't be president; it would be Chief Justice of the US Supreme Court.