The biggest impact from the 2008 presidential race will be in the judiciary
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No comments [ Add Comment ]By Doug Gibson
Commentary
D
uring his hapless 2000 presidential bid, Utah Sen. Orrin Hatch -- the other GOP Mormon presidential hopeful -- tried to make the judiciary his main campaign issue. He warned Iowa voters that who wins the White House gets to pick hundreds of judges, including Supreme Court justices.
Although fewer than 1,000 Iowans voted for Hatch in 2000, he was correct on the judges. Had Al Gore or John Kerry been president, there would not be Supreme Court Chief Justice John Roberts and Justice Samuel Alito. A Democratic president would have picked liberal Supreme Court nominees. Partial-birth abortion would have remained legal. Some affirmative action-based quota systems would remain in place.
By narrow decisions, the Roberts Court has moved the court right. In most high-profile cases, moderate Justice Anthony Kennedy has voted with conservatives Roberts, Alito, Clarence Thomas and Antonin Scalia. Liberals Ruth Bader-Ginsburg, John Paul Stevens, David Souter and Stephen Breyer often find themselves outvoted 5-4.
Examples include this week, where the conservative majority triumphed in a decision that will prevent more class-action lawsuits against companies. Just recently, conservative justices appeared skeptical of a complaint -- backed mostly by liberals -- that it is unconstitutional to require voter IDs at polls. The conservative court also appears likely to uphold lethal injection as constitutional.
If President Bush is to have a legacy, it will be in the judiciary. Besides Roberts and Alito, he has named almost 300 judges to the federal courts. Thanks to Bush's seven years, 60 percent of the appeals court judges are Republican picks.
The result is a judiciary more hesitant to use judicial power. Democratic judges are more likely to use the bench to exert power. This is why we often see a federal judge -- appointed by a Democrat -- declaring an administration's war on terrorism tactic unconstitutional, followed by a majority Republican-appointed appeals court reversing the federal judge.
But the ideological battle over the courts is not over. Many of these GOP judges are from President Reagan and the first President Bush. The next president will have a lot of Republican-appointed retiring judges to replace. This is the key issue in 2008.
Conservatives who may be disappointed if John McCain, Rudy Giuliani or Mike Huckabee get the GOP nomination should remember that if elected, both have pledged to nominate conservative judges to the bench. The three major Democratic Party candidates have made it clear their nominees will be liberals.
The impact will be big. Consider the abortion issue. If, as many now suspect, Chief Justice Roberts would vote to overturn Roe v. Wade, that leaves the 1973 abortion decision with a narrow 5-4 majority with Kennedy breaking the tie. Two of the liberal justices, Stevens and Ginsburg, are 87 and 74. It's likely the next president will replace these two. A Republican president would appoint justices likely to reverse Roe, and send the issue back where it belongs, to the states.
A Democratic president would appoint a justice who would not only solidify Roe, but would restore partial-birth abortion, should a President Clinton or Obama get to replace Scalia, Kennedy or Thomas.
And it isn't just about abortion. Other issues that split the high court include the death penalty, gun-control laws, how to fight the war on terror, the environment, immigration, debates over energy sources, global warming and perhaps more affirmative-action cases.
Conservatives have been burned in the past by Republican high-court nominees. Remember that Justice Souter was the first President Bush's bright idea. However, his son's two picks have been outstanding conservative legal minds with high intellect and the fortitude to remain consistent in their beliefs.
There's more than just a little difference between the Democrats and the Republicans when it comes to this fall's vote. The next president will have lots of opportunity to shape the courts far longer than most of us will live.
Gibson is the Standard-Examiner's assistant editorial page editor. E-mail him at dgibson@standard.net.
