Path: bloom-picayune.mit.edu!snorkelwacker.mit.edu!americast.com!americast.com!americast-post Newsgroups: americast.twt.news From: americast-post@AmeriCast.Com Organization: American Cybercasting Approved: americast-post@AmeriCast.com Subject: Election could shake up court Date: Mon, 26 Oct 92 14:37:03 EST Message-ID: \SE A;DECISION '92: THE COURTS \HD Election could shake up court \SH Winner may name four justices \SR First of a five-part series \BY Nancy E. Roman \CR THE WASHINGTON TIMES This is the first of a five-part series examining key issues in the presidential race. Imagine New York Gov. Mario Cuomo - brow furrowed, wearing a dark robe and sitting at the left hand of Justice David Souter - one seat away from Justice Antonin Scalia. That's where he would sit if Bill Clinton wins Nov. 3 and follows through on a pledge to appoint as a Supreme Court justice the New York Democrat, who opposes the death penalty and advocates abortion rights. Whoever wins the White House is almost certain to appoint one Supreme Court justice, and experts say the new president could choose as many as four. Justice Harry Blackmun, 83, is likely to retire at the end of the term if Mr. Clinton becomes president and sometime during the next four years if President Bush wins. Justice Byron White is interested in retiring, and Justices John Paul Stevens and Sandra Day O'Connor have been ill. The two Clinton appointments most often mentioned are Mr. Cuomo and Laurence Tribe, a professor at Harvard Law School. The number of justices who step down will determine, of course, how many seats the president will fill. But the degree to which the court's overall philosophy shifts depends in part on the ideology of those who depart. If Mr. Clinton as president were to replace liberal Justices Blackmun and Stevens, the philosophical profile of the court would be largely unchanged. A "liberal" philosophy allows for a broader interpretation of the Constitution, while a "conservative" view follows what it sees as the objectives the framers of the document had in mind. "If . . . you permit Clinton to shape the court for the next 20 years, it would be dramatic," said Ralph Adam Fine, a judge on the Wisconsin Court of Appeals. "If you give Scalia and [Chief Justice William] Rehnquist people who will back them up and people who resonate on their frequency, you will see a strong conservative court." There is, however, an ace up the liberal sleeve. While 60 percent of the nation's 837 federal judges were appointed by President Reagan or Mr. Bush, Democrats have delayed filling 119 vacancies. "Democrats in the Senate have been keeping those vacancies hostage, anticipating that Clinton is going to be elected," said Thomas Jipping, vice president of the Free Congress Foundation and a conservative point man on judicial appointments. Some say federal judges nationwide have significant input into the maintenance or establishment of liberal or conservative philosophies. As the high court takes fewer cases, lower federal courts increasingly have the last legal comment in such areas as affirmative action, antitrust and labor law. The Senate confirms federal judicial nominees, including Supreme Court justices. Sen. Joseph R. Biden, Delaware Democrat and chairman of the Senate Judiciary Commitee, has complained that conservatives have sought to achieve policy changes through the judiciary that they could not accomplish through the political process. Mr. Biden has "served notice" he would "reject" future nominees who did not represent a more "moderate" balance, as he defines it. Mr. Clinton, using a standard that congressional Democrats have frequently accused Republican administrations of, said earlier this year that he favored a "litmus test" for Supreme Court nominees to assure their votes on issues including abortion. The Democratic nominee later modified that position, saying only that he would appoint to the court people who support the Bill of Rights. Liberals often are criticized for overreaching the Constitution to find rights they wish the framers had included. Conservatives are criticized for being narrow in their interpretation and too quick to override liberal precedents. Last term there were a few decisions in which conservatives on the court held the majority by a single vote. For example, in U.S. vs. Williams, the court said in a 5-4 decision that federal judges may not throw out an indictment because prosecutors withheld from a grand jury evidence suggesting a defendant was not guilty. Perhaps more memorable were the 5-4 decisions that swung the other way: In Lee vs. Weisman, the court ruled that invocations and benedictions may not be delivered by members of the clergy as part of public graduation ceremonies; in Casey vs. Planned Parenthood of Pennsylvania, the court upheld a woman's right to abortion while giving states leeway to restrict the procedure. "The point is that a single vote could change any of these," Mr. Jipping said. "Looking ahead to a Clinton presidency, I look at the constituents and the interest groups to whom Bill Clinton has sold his soul and whose agenda can only be implemented through the courts." Mr. Jipping pointed to efforts by homosexual groups to convince the courts that laws prohibiting discrimination offer the same statutory protection to sexual orientation that they offer race and gender. But Georgetown University law professor Mark Tushnet argued that the impact of one or two new justices will be marginal in terms of overall decisions. Assume Justices Blackmun and White retire during the next term, leaving one conservative vacancy and one liberal one, he said. If Bill Clinton were to fill those slots, Democrats would have a net gain of one seat. "Since the court is substantially conservative, prospective retirements are not likely to change that, except on the margins," Mr. Tushnet said. "Even if Clinton were to appoint Mario Cuomo, it is hard to see a large number of cases swinging differently." Alan Slobodin of the Washington Legal Foundation said a Tribe nomination would present problems for the Democrats because the law professor is perceived as not only a constitutional scholar, but also a legal activist. "It's hard for me to think of who could be a more controversial nominee," he said. "Cuomo would be controversial, but he doesn't have the same kind of paper trail." Mr. Tribe has written and spoken on a number of controversial issues, and he led the charge against Supreme Court nominee Robert Bork. In an article in the October issue of Vanity Fair, Alan Dershowitz, a fellow Harvard professor, said Mr. Tribe "is in danger of becoming the Bork of the left." So, in the end, Mr. Clinton may opt for lesser-known personalities - people with similar but less public philosophies. "It's the flip side of what Bush tried to do with his own appointments," said Mr. Slobodin, referring to the nomination of Justice Souter. According to those interviewed, the names on the Clinton short list include D.C. Delegate Eleanor Holmes Norton; Marian Wright Edelman, president of the Children's Defense Fund; District Judge Jose A. Cabranes; and Appeals Court Judges Harry T. Edwards, Amalya Lyle Kearse, Richard Arnold, Ruth Bader Ginsburg and Patricia M. Wald. If Mr. Bush is re-elected, it would be hard for him to send conservative nominees to the bench, Mr. Jipping said. Democrats could emerge from the election with as many as 60 to 63 seats in the Senate, so judicial nominations would be particularly vulnerable to partisan politics. U.S. Solicitor General Kenneth Starr would have the best chance among the most frequently suggested Republican nominees, Mr. Jipping said. "They know him, and that could stand him in good stead in the kind of government that we will find ourselves in politically." Independent presidential candidate Ross Perot has not addressed the issue of judicial appointments. ****BOX ON THE HIGH COURT? Interviews with legal scholars and the comments of the candidates and those close to their campaigns suggest the following are possible contenders for nomination to the Supreme Court. BILL CLINTON: * Mario Cuomo, governor of New York. * Laurence Tribe, Harvard University, law professor. * D.C. Del. Rep. Eleanor Holmes Norton. * Marian Wright Edelman, head of the Children's Defense Fund and long-time associate of Hillary Clinton. * Jose A. Cabranes, judge, U.S. District Court, Connecticut, appointed by President Carter in 1979. * Harry T. Edwards, judge, U.S. Court of Appeals, District of Columbia Circuit, appointed by President Carter in 1980. * Amalya Lyle Kearse, judge, 2nd Circuit U.S. Court of Appeals, appointed by President Carter in 1980. * Richard Arnold, judge, 8th Circuit U.S. Court of Appeals, appointed by President Carter in 1980. * Ruth Bader Ginsburg, judge, U.S. Court of Appeals, District of Columbia Circuit, appointed by President Carter in 1980. * Patricia M. Wald, judge, U.S. Court of Appeals, District of Columbia, appointed by President Carter in 1979. PRESIDENT BUSH: * Kenneth Starr, U.S. solicitor general. * Frank H. Easterbrook, judge, 7th Circuit U.S. Court of Appeals, appointed by President Reagan in 1984. * Alex Kozinski, judge, 9th Circuit Court of Appeals, appointed by President Reagan in 1982. * Pasco M. Bowman, judge, 8th Circuit U.S. Court of Appeals, appointed by President Reagan in 1983. This article is copyright 1992 The Washington Times. Redistribution to other sites is not permitted except by arrangement with American Cybercasting Corporation. For more information, send-email to usa@AmeriCast.COM