Focus: The Judiciary and the 2004 Election

The role of the President of the United States consists of two distinct functions first, that of Head of State and secondly, that as guardian of the Constitution through judicial appointments. And that is a matter we wish to address in this column. The Supreme Court is not a creation of the Congress but is called for by the US Constitution and it is key to our system of Constitutional government. Before the Republic was a half-century old, Alexis de Tocqueville wrote, "scarcely any political question arises...that is not resolved sooner or later into a judicial question." The truth of that statement has been established. Matters of the judiciary may not loom as large in the minds to some voters, as the War on Terror or the economy. But the decisions of the U.S. Supreme Court have far reaching implications with respect to the life of every American. And the makeup of the Court may very well depend on who is elected president in November. That gives, whoever is elected President, tremendous influence -- influence far beyond the next four or eight years in office. Point to consider, the future direction of the US Supreme Court and constitutional law may very well be at stake in the November balloting.

An unprecedented 10 years have elapsed since the last vacancy was filled by former President Clinton's appointment of Stephen Breyer. And the winner of the 2004 presidential election will likely appoint from one to three or more new justices. This point alone is enough to give pause to every voter. Recently, MAB and RLH entered into dialog on this subject. The result of that discourse is the subject of this column.

R.L.H.: Power attracts, and the Supreme Court's power has risen enormously since its origins in 1789. The justices enjoy life tenure under Article III of the Constitution, but most have left the bench at a certain point in their life when age or health or other interests makes its calling. However, resignations and retirements have become less frequent, a tacit recognition of the mushroomed Supreme Court esteem and prominence in constitutional law. Nine seats have been occupied for nearly a decade.

M.A.B.: Nearly a record has been established. You have to go back more than 180 years to find the only other time when the highest court retained the same members for more than 10 years. However, sometime after January 20th, its seems possible and quite probable that several seats will become vacant. The campaign and most ardent supporters of President Bush and Sen. John Kerry are keenly aware that Chief Justice William H. Rehnquist, 79, and Justices John Paul Stevens 84, and Sandra Day O'Connor, 74-are widely expected to step down during the next presidential term. In fact, some say that as many as four of the nine justices may retire in the next four years with Ruth Bader Ginburg at age 71.

R.L. H.: The stakes are high. Several decisions in the Court's 2003-2004 term were decided by 5-4 or 6-3 votes. The Court has been divided on a number of high profile issues, issues which matter in the life of every man, woman and child in the United States now and for several generations to come.

M.A.B.: Exactly. The next Court is likely, at some point, to take up a federal law that prohibits certain abortions. In June, a San Francisco federal judge ruled that the Partial Birth Abortion Ban Act is an unconstitutional infringement of a woman's right to have an abortion. That, very likely, will come before the high court as well as a decision cornering the constitutionally of same sex marriage. And then there is the use of "in God we trust" in the Pledge of Allegiance which may very well be addressed along with Presidential war powers, church-state relations, the death penalty, the powers of police and prosecutors, and treatment of suspected terrorists.

R.L.H.: When reviewing recent decisions of the Court, judicial philosophy of the justices seems to explain nine-tenths of justice's votes. It seems that time and custom have come to accept three discrete brands as legitimate. The first searches for the original meaning of the Constitution. The second, for a political compromise between contesting interpretations. The third searches for a construction that corresponds with contemporary standards of decency that flourish among intellectuals.

M.A.B.: Good point. At present, it seems that Chief Justice Rehnquist and Associate Justices Scalia and Clarence Thomas espouse the first brand. Justices O'Connor and Anthony Kennedy the second and Justices Stevens, David Souter, Ginnsburg and David Breyer the third.

R.L. H.: You mentioned that it is probable that within the next four years, vacancies may emerge on Supreme Court. This will mean that the President of the United States will make the appointment to fill each possible vacancy with the advice and consent of the Senate to each appointment. Therefore, whoever is President and whoever controls the Senate is of prime importance.

M.A.B.: For the past four years, the U. S, Senate has become something of a war zone for judicial nominations to the lower federal district courts. Such nominations are sometimes crucial in that they provide a track for the nominee to be appointed to the Supreme Court. In fact, President Bush nominated several judges that some liberals in the Senate found to be too conservative. And therefore the Senate blocked seven such nominees with the threat of or use of a filibuster. In fact, the nomination of each of the seven never got out the Judicial Committee and therefore the full Senate never had an opportunity to even vote on any of the seven.

R.L.H.: President Bush has already made it abundantly clear that through his appointments to the federal district and circuit courts that he is committed to an independent judiciary. In fact, the President has pledged to make "original meaning" appointments to the judiciary. Through his actions and statements, he would uphold the rule of law and a strict interpretation of the Constitution rather than use the bench to write social policy.

M.A.B.: And Sen. Kerry has stated in his "Call to Service : My Vision for a Better America" he said "I don't like the idea of a litmus tests for judicial nominees." But then, on the other hand, at the University of Plymouth he stated: " I'm not going to appoint anyone to the Supreme Court who does not support the right of privacy and a woman's right to choose and if you want to call it a litmus test, go ahead and call it that." As a matter of fact, Sen. Kerry reinforced that position by the pledge in writing, "As a Senator, I will filibuster any Supreme Court nominee who would turn back the clock on the right of any woman to choose."

BOTH: In sum, the 2004 presidential election as well as that of the Senate, may proved to be pivotal to the life of this American generation and of generations to come. As we see it, it is prerequisite of any representative democracy that the three branches of governance must have degrees of independence as articulated in the US Constitution. But this fundamental principle must be balanced with another almost antithetical, but nevertheless essential principle of accountability. If we as a people choose our leaders, then it is apodictic that we can hold them to account to those matters so essential to the well being of the people of this representative democracy, and Tuesday, November 2, 2004 is just such a day. That is how we see it FROM OUR PERSPECTIVE.