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Law professor Michael Dorf on Supreme Court appointments and the next president

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(CNN) -- Michael Dorf, law professor and vice dean of Columbia Law School, joined Law Chat on Wednesday, July 26, to discuss Supreme Court appointments and the next president. Law Chat is presented by FindLaw. CNN provided a typist for Dorf. The following is an edited transcript of the chat:

Chat Moderator: How would you describe the present climate in the Supreme Court, particularly the balance between the way the justices tend to lean on issues?

Michael Dorf: The court is divided into roughly three camps. There are three solid conservatives: Chief Justice William Rehnquist, Associate Justice Antonin Scalia, and Associate Justice Clarence Thomas. There are four moderate-to-liberals: Associate Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer. And then there are the swing votes: Associate Justices Sandra Day O'Connor and Anthony Kennedy. O'Connor and Kennedy tend to vote with the conservatives in cases involving state-federal conflicts. They favor the states over Congress. But O'Connor and Kennedy often vote with the moderate-to-liberals on questions of individual rights.

Question from Nanette: Is the tilt of the court unprecedented? Or does it remain a pendulum?

Michael Dorf: The court has been quite divided at many times in the past. Sometimes these divisions last for years. Other times they resolve themselves. Right now, the federalism cases (pitting the interests of the states and Congress against each other) provide a good example.

The four liberal-to-moderate justices have made it clear that if they get one more vote they will undo the recent decisions favoring the states as against the federal government. Other decisions that were once divisive -- like Miranda v. Arizona -- have come to be accepted over the years. Thus, last month, Chief Justice Rehnquist -- no fan of criminal suspects -- wrote a decision reaffirming Miranda over the dissents of only justices Scalia and Thomas.

Earlier in the century, the court was closely divided for many years over the ability of government to regulate property and contract rights. For many years the court struck down minimum wage laws, child labor laws and the like, over the dissents of such notable figures as Justice Oliver Wendell Holmes and Justice Louis Brandeis. Eventually, the dissenters' views triumphed, and the law has remained stable ever since.

Question from Jobbo: Do you expect any retirements if Texas Gov. George W. Bush is elected president?

Michael Dorf: It's impossible to predict with any precision. All we can do is look at the actuarial tables. Chief Justice Rehnquist is 75, Justice Stevens is 80, and Justice O'Connor is 70, but has had health problems over the last decade. These are the three names most frequently mentioned when people talk of retirements. In addition, Justice Ginsburg had surgery for cancer last year. She appears to have made a complete recovery, however.

There is also the question of whether a justice like Rehnquist might choose to retire specifically to give a Republican president the opportunity to appoint his successor.

Question from RadioFlyr: Does the Supreme Court seem to determine cases with a priority to adapting to a changing society or does there seem to be a trend to return to constitutional fundamentals? Or are the fundamentals being adapted to conform to changes in society?

Michael Dorf: That is itself a fundamental question on which the justices differ. Justices Thomas and Scalia often describe themselves as "originalists," by which they mean that in interpreting the Constitution, they try to figure out what was meant when adopted.

The rest of the justices, however, believe that strict originalism is impossible, and unwise in any event. For example, when the 14th Amendment was adopted in 1868, it was widely believed that "equal protection" permitted racial segregation in public schools. When the Supreme Court ruled unanimously to the contrary in 1954 in Brown v. Board of Education, it was quite clear that it could not "turn back the clock" to 1868.

Thus, the court often tries to adapt the Constitution to changes in society. Of course, it has to be careful in doing so, because the justices are appointed for life and in that sense unaccountable. The hard question for justices who rightly eschew the strict originalist position is how to strike a balance between the evolving needs of the society and the court's own institutional limitations.

Question from eagle: Were you surprised by the Kennedy move in the Nebraska abortion case?

Michael Dorf: Somewhat. In the interest of full disclosure, I should say that I was one of Justice Kennedy's law clerks. I was not surprised to see him express substantial sympathy with the pro-life position. I think that he has a strong belief that abortion is usually immoral. When he co-authored Planned Parenthood v. Casey in 1992, partially reaffirming Roe v. Wade, he did so in a way that, he thought, left the states more room to regulate abortion than they had under Roe. Although I think that the Breyer opinion is more faithful to the Casey test, I don't think Kennedy's interpretation of that test in Stenberg v. Carhart, the Nebraska case, was unreasonable. The basic disagreement was over how much deference to give to state legislatures.

Question from Who: Who would Vice President Gore be likely to appoint as a Supreme Court justice if he is elected president?

Michael Dorf:In several official statements, Vice President Gore has said that he admires Thurgood Marshall. However, it's unrealistic to think that Gore would pick justices in the mold of Marshall.

For one thing, there are few staunch liberals of that sort around these days. For another thing, Gore is himself much more conservative than Marshall. I think Gore holds Marshall as a personal hero but would likely pick moderates in the mold of the Clinton appointees -- Ginsburg and Breyer.

Here's my choice for a Gore justice: Judge David Tatel of the D.C. Circuit, sometimes called the second highest court in the country. Judge Tatel is a Clinton appointee, gets along well with his colleagues, and is widely respected for his intellect. But there are any number of good appeals court judges out there in the Ginsburg-Breyer mode -- most of them appointed to the lower federal courts by Clinton. Then there's always the possibility that Gore could follow the old tradition of picking a law professor. I have my own short list, but so far no one has asked for it.

Question from What: If Bush is elected, who is the most reliably conservative but also confirmable candidate out there? Frank Easterbrook?

Michael Dorf: Bush would likely pick either Judge Michael Luttig or Judge James H. Wilkinson III. The most prominent conservative judges are Richard Posner, Frank Easterbrook, and Alex Kozinski. They were all appointed by President Reagan to the federal appeals courts, and they have all had distinguished careers. However, they have too much "baggage."

Unfortunately, we appear to live in an era in which distinguishing oneself is a disqualification for higher office. In this sense, we were extremely lucky that David Souter -- a superb justice -- turned out that way. Although people who knew him could have predicted this result, he was quite unknown outside of New Hampshire when President Bush picked him.

Question from Scott_Palmer_4_President_2000: What do you mean by baggage?

Michael Dorf: By "baggage" I mean a substantial body of controversial work. Take Judge Richard Allen Posner for example. He is without a doubt the most distinguished federal appeals court judge we now have. He is also extremely prolific and sometimes says controversial things.

For example, many years ago he wrote a piece that seemed to condone baby selling. I think there are legitimate reasons why one might not want Judge Posner on the Supreme Court. However, the alternative to a well-known figure is someone whose views are completely unknown.

Question from denise: Is there any possibility if Gov. Bush were elected that Robert Bork or Kenneth Starr's name would reappear?

Michael Dorf: I don't think it's at all likely. Judge Bork is now probably too old for consideration. Likewise, picking Bork or Starr would be seen as picking a fight with the Democrats. A President Bush would have to value such a fight much more than actual influence over the court to do such a thing.

Chat Moderator: Do you have any final thoughts for us today?

Michael Dorf: My final thought is this: In discussion of the likely impact of the presidential election on the Supreme Court, discussion is often limited to one or two issues, like abortion and affirmative action.

In fact, the biggest battles on the court these days involve the balance of power between the states and the federal government. There are also issues on the horizon -- like Internet privacy -- as to which today's ideological struggles may prove completely irrelevant.

History is a useful guide here. President Franklin Roosevelt selected justices based on the idea that they would uphold the New Deal. Those justices ended up addressing unforeseen questions of civil rights for over a generation. This doesn't mean that the Supreme Court is unimportant as an election issue. It does mean that one is at best playing the odds.


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