Quotes of the Day

Why aren't we talking about the Supreme Court this election season? In 2000, both presidential candidates mentioned the High Court early and often. Seeking to assure social conservatives he was the right man for the job, George Bush complained about so-called "activist judges" and named his two favorite members of the court: Antonin Scalia and Clarence Thomas. On the other hand, Al Gore noted that with many of Court's members aging, the next president could appoint three or four justices, warning pro-choice voters that voting for Bush could result in the end of legalized abortion. Groups on both the right and left talked about how 2000 could be the most important election in years in terms of the judiciary.

But in 2004, the candidates have spoken rarely about the courts. In part, this is because terrorism, the war in the Iraq and the economy have dominated headlines and the attention of most voters. In fact, though, this year might actually be more important in terms of the judiciary than in 2000. The same justices many thought would retire four years ago are still there, and now a little bit older. And on the lower federal courts, which decide the 98% of cases that don't make it to the Supreme Court, Bush and Kerry appointees would approach issues in radically different ways.

Presidential elections have often helped determine when a justice would step down. For example, Justice Harry Blackmun, who wrote the Roe v. Wade decision that legalized abortion and Justice Byron White announced their retirements in early 1993, assured by the election of President Clinton they would be replaced by liberal justices. The next candidates to leave? Chief Justice William Rehnquist and Justices Sandra Day O'Connor and Paul Stevens are, respectively, 79, 74 and 84.

Some court observers believe Stevens, who is one of the court's four consistent liberal votes, would step down if Kerry won. Of course, many observers predicted Rehnquist or O'Connor, both Republicans, would retire after Bush won in 2000 and both remain on the Court. And all three remain very healthy. "One thing we have to recognize is that being a Supreme Court Justice is an unbeatable job, you're on the top of the legal world," said Sheldon Goldman, a political science professor at the University of Massachusetts. "The fact that you're going down in the history books, that counts for a great great deal. It's very rare to have a good person of good health leave the court."

If all three retired, the next president would have a huge impact on the future of the Court. If Bush wins and only Rehnquist retires, replacing one reliable conservative with another would do little to change the Court's composition. The same would hold true for the more liberal Stevens if Kerry won. But a retirement of O'Connor could lead to a seismic shift in the Court. O'Connor has been dubbed the most powerful woman in the world because of the swing vote she holds on the Court on many issues. She has supported the conservatives' overturning of many federal laws in which they felt Congress overstepped its bounds, but at the same time, she's cast votes with the liberal justices supporting affirmative action and abortion rights.

Though its impact on the Supreme Court far from certain, a Kerry or Bush victory would have tremendous impact on the lower federal courts. The Supreme Court hears fewer than 100 cases a year, so the vast majority of decisions in federal cases are determined by these other judges who are also picked by the president. In his two terms, Ronald Reagan appointed more than 300 judges, most of whom were reliable conservatives who have made rulings supporting limits on affirmative action and abortion, favoring business over labor and calling for a less sharp line between church and state. Clinton appointed far fewer justices than Reagan and studies on the voting records of his nominees suggest they have not been as strongly liberal as Reagan's were conservative. President Bush has appointed close to 200 judges already, and, if he wins, "the impact will be similar" to Reagan" says Sheldon Goldman, "really moving the courts in a very conservative direction."

While his aides say they don't apply litmus tests to nominees, the Bush appointees have reflected the party's base. Judicial nominations are important to social conservatives, who are adamant about picking justices who are pro-life and support more limited expansions of civil rights. In his stump speech, Bush frequently uses the term, "activist judges" a favorite of the religious right used to criticize liberal judges. Conservatives argue these judges create new rights, such as the Massachusetts Supreme Court that declared that gays should have the right to marry. And while social conservatives may think Bush hasn't talked enough about stopping gay marriage, his judicial nominations have not been a disappointment. A recent study by Kenneth Manning and Robert Carp, two political science professors, found that Bush's court picks were "the most conservative on record," slightly more conservative than Reagan's, especially on issues of civil liberties.

So far, the Kerry campaign has spent little time on the judiciary. The Democratic base focuses less on the courts, except for affirmative action and abortion. O'Connor has provided the fifth vote in favor of affirmation action, which effectively took that issue of the national political stage. On abortion, where liberal groups warn another victory for Bush could lead to the overturning of Roe v. Wade, the base hasn't pushed Kerry to take an aggressive stance.

When asked what kind of judges he would pick, Kerry seemed to signal he would go in a centrist direction, paraphrasing former Supreme Court Justice Potter Stewart in saying "A good justice is somebody that when you read their decisions you can't tell if they are Republican or Democratic or liberal or conservative, a Christian or a Jew, a Muslim, male or female. You just know you're reading a good judicial opinion." Still, Kerry's picks would likely favor labor over business in disputes, be less supportive of school vouchers and be backers of abortion rights and affirmative action.

Differences in judicial philosophy aside, Kerry and Bush are likely to continue one push Clinton started: a more diverse group of judges. In fact, legal experts suggest if any judge resigned from the Supreme Court, both Kerry and Bush would be strongly pushed to select a Hispanic justice.

• Perry Bacon Jr.
• Neither Presidential candidate talks much about the courts. But whoever wins will have a chance to profoundly shape the judicial system