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Two issues have dominated the presidential campaign between President George W. Bush and Senator John Kerry: the current war on terror and decades-old service during Vietnam. As a result, one issue has gone virtually unaddressed, at least in the media: What sort of jurist would the respective candidates nominate to the U.S. Supreme Court? As the court reconvenes today, now is a good time to pause and consider the question. The question may not be as important as those concerning the war on terror and the integrity of the person ultimately charged with waging that war, but it is of profound importance nonetheless. After all, the Supreme Court’s decisions affect not only the powers of the president himself but also the rights and liberties of the American people. Moreover, the person elected president in November almost certainly will have the opportunity to appoint several members to the nation’s highest court. Liberals decry the current court’s conservative record. For example, law Professor Herman Schwartz published a recent book designed to illustrate-to his dismay-that “Ronald Reagan’s efforts to reshape the American judiciary have succeeded.” Conservative law Professor Douglas Kmiec insists, in contrast, that President Reagan would be proud that “Faithfulness to the original understanding of the Constitution is now an acceptable methodology, as is a reaffirmation of federalism and separation of powers.” Voters have been on notice since the 2000 campaign that George W. Bush would nominate even more conservatives to the high court: He repeatedly stated during that campaign that he would appoint jurists in the mold of Antonin Scalia and Clarence Thomas. His nominations to the lower federal courts during the past four years, and his willingness to go to the mat for most of his nominees, suggest that he means what he says. Voters appear less aware of the type of jurist a President Kerry would appoint. However, he has made some public statements on the matter during the current campaign and he also has cast votes in the Senate for and against other presidents’ nominees. What Kerry’s record shows Kerry’s most detailed comments about the Supreme Court appointment process occurred during an October 2003 speech to the National Council of Negro Women. He maintained that President Bush’s “goal is to use the nomination process to score political points with right-wing extremists” and that if the president is reelected it could mean the “end” of affirmative action; the “end” of a woman’s right to choose; a “return” to the criminalization of homosexuality; a “threat” to the federal government’s ability to protect the environment; a “license to John Ashcroft to trample” the right to privacy; a “weakening” of workers’ rights; and a “threat” to the rights of the disabled, the elderly, and African Americans. Kerry, on the other hand, pledged to appoint justices “who understand that the battle against racial discrimination continues, who know working people deserve protections on the job, who recognize that our natural environment is a trust we hold for our children, and who have an unshakable commitment to a woman’s right to choose.” In the Senate, Kerry has voted to confirm Antonin Scalia, Anthony Kennedy, Ruth Bader Ginsburg and Stephen Breyer. He has voted to reject William Rehnquist (as chief justice), David Souter and Clarence Thomas. The senator’s votes to confirm Ginsburg and Breyer shouldn’t be surprising: Both were nominated by fellow Democrat Bill Clinton. Kerry explained at the time why he was voting to confirm Reagan’s nominations of Scalia and Kennedy: He believed that Scalia was “a legal scholar of distinction, of principle, and of integrity,” and that Kennedy was “a thoughtful, moderate jurist who is within the mainstream of American judicial thought.” The Senator stated that his votes against Souter and Thomas were based primarily on their respective unwillingness to answer questions that were important to him (such as the scope of the right to privacy). His explanation for his vote against Rehnquist’s elevation to the chief justiceship was less diplomatic. Most notably, he insisted that Rehnquist’s views were “so far outside the mainstream of legal thought that he is irredeemably handicapped in his ability to effectively fulfill the essential role of a Chief Justice as a builder of consensus on the Court.” If President Bush is defeated in his bid for re-election he will become only the fifth president in U.S. history not to have appointed a justice to the Supreme Court. If he is re-elected, and if he is as willing to go to the mat for a Supreme Court nominee as he has been for his nominees to the lower federal courts, he likely will nominate a jurist in the conservative mold of Scalia and Thomas (as he has said he would). The sort of nomination that a President Kerry would make is less certain. He voted to confirm two justices-Scalia and Kennedy-he might have been expected to reject, while he voted to reject one nominee-Souter-he might have been expected to support. Whether Kerry’s record on Supreme Court nominations is a product of an open and independent mind or another example of his alleged indecisiveness will be up to the voters to decide-if, that is, the issue is brought sufficiently to their attention. Scott D. Gerber is an associate professor of law at Ohio Northern University. His books include First Principals: The Jurisprudence of Clarence Thomas (NYU Press).

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