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Years after Presidents Ronald Reagan and George Bush left office, their legacies were maintained by the third branch of government — the judiciary. Take the issue of racial preferences. Over 12 years, neither man could forge consensus for an executive order, much less congressional legislation. But the judges they appointed began striking down preferences, and, eight years later, they still do. The pendulum of jurisprudence swings slowly but surely. The new president inherits a judicial pendulum almost precisely at midpoint. Bill Clinton named roughly half of the federal judiciary. The U.S. Supreme Court is divided 5 to 4 on nearly all contentious issues (except abortion). The new president’s appointments to the Supreme Court and lower courts will swing the balance. If the Supreme Court sustains multiple vacancies, that balance could shift for a generation. The key issues? The Court is closely divided on racial preferences in government contracting, employment, desegregation, and voting rights; on religious establishment issues; on criminal law cases; on issues relating to the scope of congressional authority under the commerce clause (the putative source of most domestic congressional power); on the respective spheres of federal and state power; and on private property rights, among other issues. One example: The constitutionality of school choice will be decided by the Court in the near future. The lower courts make a huge difference, too, because few cases ever reach the high court. My study found that judges appointed by Clinton in his first term were markedly more liberal than their predecessors in civil rights, criminal law, and torts cases. Examples abound: � A 2-to-1 panel of the 4th Circuit Court of Appeals in Richmond, Va., overturned a district court opinion, finally putting an end to the Charlotte school desegregation case. � A Clinton district court judge in San Francisco enjoined the operation of Proposition 209, the California initiative that abolished racial preferences, although his decision was subsequently overturned. � Clinton judges have overturned or reduced criminal convictions based on racial statistics and sociology-based assumptions. So the stakes are huge. But the road to a legacy is complicated by the narrow divide in the U.S. Senate. The Judiciary Committee will lose conservative stalwarts John Ashcroft of Missouri and Spencer Abraham of Michigan. Even if the Republicans have a majority, Pennsylvania senator Arlen Specter often votes with Democrats. Republican control of the Senate prompted Bill Clinton to take few political risks with judicial nominations. Typically, committee chairman Orrin Hatch of Utah would signal whether nominees would face a fight, and Clinton refrained from naming controversial candidates. That type of accommodation will probably suit the next president as well. But even without high-profile fights, the new nominees make a difference. “Moderate” Democratic judges tend to be noticeably more liberal than “moderate” Republican ones. Like the president, senators also have only a limited amount of political capital to expend on judicial nominations. The fact is that the overwhelming majority of judicial nominees will be confirmed, regardless of who controls the Senate. That means that the next president should focus closely and heavily on judicial nominations. Well-qualified nominees with mainstream views are nearly always confirmed. Even high-profile confirmation battles can be worthwhile: Clarence Thomas won confirmation by only a few votes, and he will be influencing the Court’s direction for many years. And the battle in the court of public opinion, if effectively waged, can deepen support for the principles the president holds dear. Both sides also have deep bench strength (not to make a pun): highly qualified, experienced jurists who are ripe for promotion. It is difficult for the Senate to reject the nomination of someone who is highly qualified. The Bork nomination is the rare exception that proves the rule. The judiciary is the crown jewel of this election contest. The new president has 66 judicial vacancies awaiting him — 24 on federal courts of appeals and 42 in district courts — and many more to come. If the new president wants to make a lasting legacy, he needs to roll up his sleeves, get to work, and prepare to invest significant capital on judicial nominations. Clint Bolick is director of litigation for the Institute of Justice in Washington, D.C.

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