Supreme Court likely to be altered under McCain or Obama

WASHINGTON - The candidates haven't spoken much about it, but American life could be dramatically affected by the next president's picks for justices for the U.S. Supreme Court and federal appellate courts.

With the Supreme Court split with four liberals, four conservatives, and a single swing vote, it's likely that at least two liberals would retire on the next president's watch.

Up for grabs could be reinterpretations of affirmative action, presidential powers, religious and civil liberties, environmental regulation and perhaps the hottest-button social issue the court could soon face: Roe v. Wade, the landmark 1973 Supreme Court decision that legalized abortion.

"The stakes really are as large as they could be," said Jeffrey Rosen, professor of law with the George Washington University Law School.

Once cleared by Senate confirmation, Supreme Court and appellate court judges may serve for life. That means someone who takes a seat on the federal bench in their early 50's could well hold forth for three decades or more.

Ideologically, the Supreme Court is evenly stacked. Four justices - Antonin Scalia, Clarence Thomas, Samuel Alito and Chief Justice John Roberts - tend to take a conservative view of the law. Four others - John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer - are just as reliably liberal.

Anthony Kennedy hews to the center, often casting the tie-breaking opinion.

With one eye on the actuarial table, students of the high court see high stakes in the presidential race. The next administration is likely to see the retirement of two liberal judges - Stevens, 88 and Ginsburg, 75.

Breyer is 70 and Kennedy, 72.

Among conservatives: Roberts is 53 and just three years on the job. Alito is 58. Scalia is 72 and Thomas is 60.

Democratic nominee Barack Obama has made clear that he would favor replacing Stevens or Ginsburg with like-minded nominees, which would essentially maintain the current court balance of influence.

If they were replaced with the kind of conservative judges some analysts think John McCain could favor, the result could be a decided shift in the way cases are decided, with a sharp tilt to the right, said Rosen, author of "The Supreme Court: The Personalities and Rivalries that Defined America."

Beyond the Supreme Court justices, presidents typically nominate scores of judges to the lower appellate courts, which can have an even larger impact on the lives of Americans.

"They're extremely important," said Rosen. "The Supreme Court hears about 80 cases a year, so most disputes in the United States are resolved at the appellate level."

Here is a look at how McCain and Obama view the judicial appointments process:

McCain

Key Positions

- Opposes what he calls the "judicial activism" of justices he feels "overreach and usurp power" by substituting political ideology for legal judgments and legislating from the bench.

- Faults current Senate confirmation process as "a gauntlet of abuse" and urges the body to defer to presidential choice.

- Seeks nominees in the mold of Roberts, Alito and the late Chief Justice William Rehnquist, with "a demonstrated fidelity to the Constitution."

- Calls for judicial self-restraint, so the judiciary serves its role as a check on legislative and executive power, and not a source of abuse of power.

- Advocates instead for "clear and rigorous Constitutional reasoning" from the bench.

Record

McCain voted to confirm former President Bill Clinton's two Supreme Court nominees - Ruth Bader Ginsburg in 1993 and Stephen Breyer the following year. "The nominees were qualified, and it would have been petty, and partisan, and disingenuous to insist otherwise," he said recently. He voted to confirm Justice Samuel Alito in 2006. And the year before, he voted to confirm Chief Justice Roberts, who he has called "brilliant, fair-minded and learned in the law."

In His Words

"I have my own standards of judicial ability, experience, philosophy and temperament. And Chief Justice Roberts and Justice Samuel Alito meet those standards in every respect. They would serve as the model for my own nominees if that responsibility falls to me." (Speech at Wake Forest University May 6, 2008)

OBAMA

Key Positions

- A graduate of the Harvard Law School and first African-American president of the Harvard Law Review, Obama has practiced civil rights law in Chicago and has taught constitutional law at the University of Chicago Law School.

- Opposes what he calls "judicial lawmaking" by activist judges.

- His running mate, Sen. Joe Biden, D-Del., is a former chairman of the Senate Judiciary Committee.

- Believes Supreme Court justices must look to "one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy" in deciding a small but important number of difficult cases.

- Has said that examination of a nominee's "philosophy, ideology and record" is fair game for Senate review.

Record

One of 22 Democrats who voted against the confirmation of Chief Justice Roberts in 2005. Obama said that, as a federal judge, Roberts had a record of being "dismissive" of efforts to end racial and gender discrimination. He was one of 41 Democrats, and one independent, who voted against the confirmation of Justice Samuel Alito in 2006. He said that, as a federal judge, Alito "consistently sides on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding American's individual rights."

In His Words

"What you're looking for is somebody who's going to apply the law where it's clear. Now, there's going to be 5 percent of cases, or 1 percent of cases, where the law isn't clear. And the judge then has to bring in his or her own perspectives, his ethics, his or her moral bearings." (CNN interview May 8)