At 71, Ruth Bader Ginsburg is a relative youngster on the Supreme Court. Just look at some of her colleagues: Chief Justice William Rehnquist is 79, John Paul Stevens is 84 and Sandra Day O' Connor is 74.
Could they be thinking about retirement? Many court observers think so, which means that the next president — whether George W. Bush or John Kerry — may have the opportunity to replace almost half the Supreme Court, not to mention hundreds of lower federal-court judges. Those new judges will then spend the next few decades defining and redefining the shape of the law in almost every significant area of life: abortion, civil rights, religious expression, workers' rights, affirmative action, environmental regulation, gay marriage, free speech, property rights, the war on terror and on and on.
So it's no surprise that both Bush and Kerry spend a lot of time talking about the types of judges they would appoint if elected. Last week, for example, the candidates used a ruling by a federal judge in San Francisco as an opportunity to weigh in on the subject. After District Judge Phyllis Hamilton (a Clinton appointee) declared the Partial-Birth Abortion Ban Act, which prohibits a certain late-term abortion procedure, an unconstitutional infringement on a woman's abortion rights, the Bush campaign announced, "Today's tragic ruling upholding partial-birth abortion shows why America needs judges who will interpret the law and not legislate from the bench." Kerry' s spokesperson Stephanie Cutter shot back, "When John Kerry is president, he will appoint judges that are committed to upholding the Constitution, not pursuing an ideological agenda." While those statements may sound oddly similar, the judges the two candidates would choose, if elected, are likely to differ substantially.
In all likelihood, judges appointed by Bush in the next four years would be similar to the judges appointed in the last four: socially conservative; protective of private property, individual liberty, and law enforcement; and opposed to abortion, affirmative action and intrusive federal regulation. Not everyone, of course, has been happy with Bush' s nominees to date. The Kerry campaign describes them as "radical right-wing judges" and Kerry has joined other Senate Democrats in preventing the confirmation of several of the most conservative ones.
Kerry' s judicial nominees, on the other hand, are likely to support abortion rights, extended civil-rights protections, affirmative action and environmental regulation; they're also likely to safeguard rights for workers, the poor and criminal defendants. Whether or not those positions sound appealing, Republicans argue that Kerry's judges will "legislate from the bench," that is, actively insert themselves into contentious issues — as the Massachusetts Supreme Court did by requiring the state to recognize gay marriages — rather than leaving the matters up to elected representatives.
Keeping both candidates in line on future judicial nominations are a variety of interest groups, ranging from the National Organization for Women on the left, to Concerned Women for America on the right. These groups closely monitor judicial nominees and frown on any judge who does not toe their ideological line. Kerry recently learned this the hard way, after making an offhand remark to a reporter that he might be open to nominating judges who were pro-life. That slip was too much for abortion-rights groups, and Kerry was forced to backtrack, saying that he was merely talking about the lower federal courts, not the Supreme Court.
What these groups understand is that the election in November is not just about choosing a president for four years: It is about choosing hundreds of like-minded judges for the next 20, if not longer, during a time in which the Supreme Court, and the federal courts in general, are almost evenly divided. Last year, for example, the Supreme Court upheld the University of Michigan's affirmative-action policy by a 5-4 vote. In 2000, the court struck down a Nebraska state ban on partial-birth abortion in another 5-4 vote (Judge Hamilton's decision last week concerned a nationwide ban on the same procedure, modified in an attempt to accommodate the earlier Supreme Court decision). Another 5-4 decision from that year was a little case called Bush v. Gore, which halted the Florida recount in the 2000 election. Just one new vote on the Supreme Court could have made the difference in all three cases — four new votes could swing the balance for a generation.
Or maybe two generations. After all, Chief Justice Rehnquist was appointed by Richard Nixon almost 32 years ago. He has outlasted six presidents and the Soviet Union, and his term has spanned the entire recording career of Aerosmith. In other words, a justice appointed by the next president may still be on the Supreme Court — making laws in all sorts of currently unforeseen areas — until 2040.