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latimes.com: More than just the oval office at stake

latimes.com WASHINGTON (Los Angeles Times) --The two major presidential candidates are giving the voters a sharp, clear choice on the future of the Supreme Court.

Texas Gov. George W. Bush says he would choose new justices in the mold of Antonin Scalia and Clarence Thomas. The court's two most conservative justices, they want to repeal a woman's right to abortion.

For his part, Vice President Al Gore says he would impose a litmus test and choose only justices who support abortion rights. He says his model justices are the late liberals Thurgood Marshall and William J. Brennan.

The contrast goes far beyond abortion, however. On issues ranging from the environment and gun control to the death penalty, affirmative action, religion and gay rights, the Republicans and Democrats pledge to appoint judges who would push the law in quite different directions.

Today, the high court opens its new term on a quiet note. But legal activists on the right and the left are pointing to Nov. 7--election day--and saying the Supreme Court is a crucial issue in the race for the White House.

"The court is the most important division between the two candidates," says conservative activist Gary Bauer, who ran unsuccessfully for the Republican presidential nomination. "When Gov. Bush mentioned Scalia and Thomas, it sent an unmistakable message to grass-roots conservatives he will do the right thing."

Bauer and his allies still are upset about President Bush's failure to do the "right thing" a decade ago. When Bush nominated David H. Souter to the high court, the New Hampshire judge was touted as a reliable conservative. Instead, he has proved to be surprisingly liberal.

"It was a terrible mistake," Bauer says.

Because of it, the 1973 Roe vs. Wade ruling on abortion still stands. In 1992, four conservative justices--including Scalia and Thomas--voted to repeal the abortion right, but Souter refused to join them in forming a five-member majority.

"All the culture war issues will be settled by the court," Bauer says, citing gay rights, school prayer and abortion as examples.

For much the same reason, Ralph G. Neas, president of the liberal group People for the American Way, is sounding the alarm about the prospect of another Bush presidency.

A trio of possibilities

If given a chance, Bush will do the bidding of the "religious right" when choosing new justices, Neas says. The next president might appoint two or three justices, he says, and "shape the court's direction for decades to come."

For now, however, the court has no vacancies, and it is by no means certain that any of the justices plans to retire soon.

Justice John Paul Stevens is a remarkably sprightly 80-year-old, and there is no sign that he will retire soon. Chief Justice William H. Rehnquist turned 76 on Sunday and, despite being slowed by back trouble, he remains lively and alert in the courtroom. Rehnquist may well retire if Bush is elected, but he is likely to be more reluctant to step down if Democrats hang on to the White House.

Next in seniority is Justice Sandra Day O'Connor, the moderate conservative who holds the decisive vote in the most important cases. At age 70, however, she is far from old for a Supreme Court justice.

Nonetheless, the man who is elected president next month could serve eight years in the White House. If so, he is likely to appoint several new justices and tilt the court right or left.

Much also may depend on the political makeup of the Senate, a powerful and often overlooked factor in judicial nominations.

A Senate controlled by the opposition party can limit a president's choices and, on occasion, reject them.

In 1986, civil rights activists and women's rights groups condemned President Reagan's choice of a conservative duo for the high court: Rehnquist to become chief justice and Scalia to be an associate justice. But the Republicans controlled the Senate, and Rehnquist won confirmation by a comfortable majority; Scalia was approved unanimously.

In that year's elections, however, the Democrats won control of the Senate. The next summer, the same civil rights and abortion rights groups attacked Reagan's nomination of Judge Robert H. Bork to the high court. The Democrats rallied to block Bork's nomination, and he was defeated.

When Bush took office in 1989, he too faced a Democratic Senate. For the Supreme Court, his legal advisors sought out "stealth conservatives"--judges who were seen as reliable on the right, but whose legal records were thin. On that basis, Bush chose Souter in 1990 to succeed Brennan, and Thomas in 1991 to succeed Marshall.

Candidates say little about court, the law

This year, the Republicans hold a four-seat majority in the Senate, and most political analysts expect that they will retain control--especially if Bush runs well nationwide.

If so, a President George W. Bush would have more freedom to select Supreme Court nominees than his father had.

A President Gore, on the other hand, might face trouble if he sought to name a staunch liberal in the Thurgood Marshall mold to the high court. Since 1995, the Republican-controlled Senate Judiciary Committee has blocked a series of President Clinton's judicial nominees on the grounds that they appear to be "liberal activists."

Beyond naming their favorite justices, neither Bush nor Gore has said much about the Supreme Court or the law. Their party platforms, however, lay out distinct positions on a range of issues.

Concerning the environment, for example, the Democrats and Republicans take contrasting approaches, which have been mirrored in court battles between liberal and conservative judges.

The Democrats say they will protect the environment by aggressively using the courts to combat polluters and pollution. The Republicans say they will protect property rights and shield businesses from overzealous environmental regulators.

This difference can be seen in the Clean Air Act case now before the Supreme Court. In 1997, the Clinton administration announced new air quality standards that would force about a 10% reduction in smog and soot nationwide. The American Trucking Assn. and other business groups challenged the rules in court.

Last year, a three-judge appeals court in Washington that included two Reagan appointees and one Clinton appointee struck down the regulations 2 to 1 on the grounds that the Environmental Protection Agency had exceeded its authority.

The Clinton administration appealed, and the case, Browner vs. American Trucking Assn., comes before the court for oral argument on Nov. 7, election day.

Scalia and Thomas have sought to rein in environmental regulation but have failed to attract a majority. In 1995, they sought to limit the Endangered Species Act by saying it did not give wildlife officials the power to protect the "habitat" of the spotted owl. Rather, the law only prevented the capturing or killing of spotted owls, they said. But by a 6-3 vote the court upheld the broader scope of the law (Babbitt vs. Sweet Home Chapter).

Last year, Scalia and Thomas sought to block citizens and environmentalists from suing polluters in federal court. Congress authorized these "citizens' suits" to enforce anti-pollution laws, but Scalia contended they are unconstitutional.

Religion in schools a close call

In South Carolina, environmental activists sued because a waste disposal plant was regularly discharging mercury into the North Tyger River, preventing them from fishing, swimming or canoeing in the polluted waters. Scalia said these are not true injuries, and therefore, the activists had no standing to bring the issue to court. But the court upheld the law on a 7-2 vote (Friends of the Earth vs. Laidlaw).

The court is closely split concerning the issue of religion in public schools. This divide is likely to be tested again as several states move to require the posting of the Ten Commandments in their schools.

The liberal justices--including the two Clinton appointees, Justices Ruth Bader Ginsburg and Stephen G. Breyer--say the Constitution demands a separation of church and state. Scalia and Thomas say the Christian religion is part of America's heritage and need not be excluded from the schools.

In June, Scalia, Thomas and Rehnquist sided with a Texas school district that had conducted a student election to choose one senior to deliver prayers at school events. As governor, Bush filed a legal brief supporting the prayers.

But a six-member majority disagreed and ruled that public schools cannot sponsor or encourage group prayers over a public address system (Santa Fe School District vs. Doe).

Concerning the death penalty--supported by Bush and Gore--all nine justices say capital punishment is constitutional. But the four liberal justices--Stevens, Souter, Ginsburg and Breyer--have been more willing to stop executions and to allow further appeals. If Gore replaced one of the conservatives with a liberal justice, the court probably would make it harder for states such as Texas to carry out executions.

Court likely to hear 2nd Amendment cases

The court also is closely split on affirmative action. By a 5-4 vote, the justices have said that the government cannot use race as a decisive factor in awarding contracts or drawing electoral boundaries. However, the court has yet to apply that rule to college admissions. In California and Texas, race-based admission policies have been abolished through voter initiatives and lower court rulings. The Supreme Court is likely to face the issue soon in a case arising from the University of Michigan.

The conservatives, led by Scalia and Thomas, have insisted that race-based affirmative action is unconstitutional, while the liberals, including Breyer and Ginsburg, have upheld affirmative action that benefits blacks and Latinos.

Looking ahead, the court will surely confront new cases concerning guns and gay rights.

In its long history, the Supreme Court has not squarely ruled on whether the 2nd Amendment creates an individual right to "bear arms." In 1939, it upheld a federal law restricting machine guns and spoke of the 2nd Amendment as focusing on state militias. However, a federal judge in Texas recently ruled that the "right to bear arms" protects individual gun owners, and the issue is expected to wind its way to the high court soon.

The Republican platform opposes "federal licensing of law-abiding gun owners and national gun registration as a violation of the 2nd Amendment." The Democrats say the Constitution permits regulation of guns, and their platform calls for a required "photo license I.D., a full background check and a gun safety test to buy a new handgun in America."

Similarly, the court has not ruled squarely on whether the Constitution's guarantee of equal treatment to all forbids discrimination based on sexual orientation.

The Democrats say they will "lead the fight to end discrimination based on sexual orientation" and enact "hate crimes" laws that impose extra punishment for bias crimes.

"We do not believe sexual preference should be given special legal protection or standing in law," the Republicans say.

Whoever chooses the next Supreme Court justices, his nominees are likely to have an effect on American law that extends well beyond his presidency.

Consider just one example: President Nixon's name usually is remembered for foreign policy achievements and the Watergate fiasco that drove him from office in 1974.

Yet a Nixon appointee has been chief justice of the United States for the last 31 years. Soon after taking office in 1969, Nixon appointed Warren E. Burger as chief justice, a post he held for 17 years. Two years later, Nixon named 47-year-old Justice Department lawyer William H. Rehnquist to the Supreme Court.


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Monday, October 2, 2000

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