WSJ: Aging High Court Looms Large

[question everything]

Likely Judicial Vacancies Emerge as Issue as Election Approaches

By BOB DAVIS and ROBERT S. GREENBERGER
Staff Reporters of THE WALL STREET JOURNAL
September 3, 2004

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Mostly, though, Mr. Bush and Democratic nominee Sen. John Kerry have shadowboxed over the composition of the Supreme Court, using the issue to energize activists. That is largely because the left and right already know the issue well, and a heavy emphasis on the high court by either side risks scaring away undecided voters... Connie Mackey, top lobbyist for the conservative Family Research Council, calls the chance to remake the federal courts the issue "that binds all conservatives" to President Bush. Deep in the Bible Belt, Pastor Harold Brown of the Oak Hill Baptist Church in Pulaski County, Ky., says: "In the 1960s, they took prayer and Bible reading out of the schools; we don't want a repeat of that."

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In April, after Mr. Kerry wrapped up the Democratic nomination and was trying to raise money, he ran a TV ad warning that "George Bush will appoint antichoice, antiprivacy justices" and asking for campaign contributions. The Massachusetts senator earlier pledged he would appoint only justices who would back abortion rights. Heather Higginbottom, Mr. Kerry's deputy policy director, says the campaign is debating how much to focus on the Supreme Court issue. For his part, Mr. Bush concentrates on the confirmation battles for his nominees to lower federal courts. During the past three years, Senate Democrats, including Mr. Kerry and his running mate, North Carolina Sen. John Edwards, have filibustered 10 Bush nominees to federal district courts and appeals courts -- a tactic that previously had been reserved almost exclusively for the most bitter fights over Supreme Court nominations. President Bush ultimately placed two judges on the federal bench when Congress was out of session. As recess appointments, the two can serve only until the end of the year.

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Mr. Gray, the former White House counsel, also chairs the Committee for Justice, a conservative group formed to promote Mr. Bush's judicial nominees. He says a swing of one or two votes on the Supreme Court could have a big effect on such issues as abortion, public-school vouchers and gay marriage. Ralph Neas, president of the liberal activist group People for the American Way, would expand that list to include privacy rights and environmental regulation. "The future of the Supreme Court is the most important domestic issue this year," Mr. Neas says.

In 2000, the justices, in a 5-4 decision, overturned a Nebraska ban on so-called partial-birth abortion, a technique used to end late-term pregnancies, because the law didn't have exemptions to safeguard the mother's health. The vote, with Justice O'Connor playing her often pivotal role, has frustrated abortion foes, especially since two lower federal courts have cited the Supreme Court decision to knock down a newer federal law banning partial-birth abortion. Conservatives hope the court will be able to revisit the issue and produce another outcome if Mr. Bush has the chance to fill vacancies. The abortion issue "remains the sun, moon and stars of the focus on the Supreme Court," says Bradford Berenson, a former official in the current Bush White House counsel's office. Gay marriage also is a conservative focus. In a 6-3 vote two years ago, the Supreme Court threw out a Texas sodomy law, creating a furor on the religious right. In a scathing dissent, Justice Antonin Scalia warned that the court's action would open the doors to gay marriage. In July, the House, with strong backing from the administration, adopted the Marriage Protection Act, which would strip federal courts of jurisdiction over same-sex marriage cases. The Senate isn't likely to pass such legislation, but if it were to become law, it is bound to be challenged on constitutional grounds.



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Write to Bob Davis at [e-mail] and Robert S. Greenberger at [e-mail]

URL for this article:
http://online.wsj.com/article/0,,SB109416287201708527,00.html



A MATTER OF TIME
With a number of the Supreme Court justices advancing in age, the next president is likely to have a couple of vacancies to fill—maybe more:

JUSTICE AGE APPOINTED BY SERVED SINCE
William Rehnquist 79 Nixon 1972*
John Paul Stevens 84 Ford 1975
Sandra Day O'Connor 74 Reagan 1981
Antonin Scalia 68 Reagan 1986
Anthony Kennedy 68 Reagan 1988
David Souter 64 G.H.W. Bush 1990
Clarence Thomas 56 G.H.W. Bush 1991
Ruth Bader Ginsburg 71 Clinton 1993
Stephen Breyer 66 Clinton 1994
*Appointed chief justice by Ronald Reagan in 1986.

Source: U.S. Supreme Court