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Election could decide future of the federal courts

  • Story Highlights
  • Newly elected president could have shot at nominating three or four justices
  • Attorney: "The Supreme Court is very important to the base of both parties"
  • Activists launching ads supporting nominee based on social viewpoints
  • Increased view of justices as pushing ideological views concerns both parties
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From Bill Mears
CNN Supreme Court Producer
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WASHINGTON (CNN) -- Republican Sen. John McCain likes fellow conservative justices John Roberts and Samuel Alito. Democratic Sen. Barack Obama does not think much of Clarence Thomas.

The new president could have the opportunity to name three or four justices to the Supreme Court.

The new president could have the opportunity to name three or four justices to the Supreme Court.

That may seem like an oversimplified summary of what the two major candidates for president think about the federal judiciary, but the impact of the upcoming election on the Supreme Court, and thereby the country itself, could be felt for decades to come.

With the high court beginning its new term Monday, the stakes in the presidential election a month later loom large for voters who care about hot-button issues that judges decide, including abortion, school prayer and gay rights.

The future occupant of the White House could have the opportunity to name perhaps three or four justices, which could either solidify an ideologically split bench or dramatically move it further right. Explore five key cases the court will hear this fall »

"I think as the election approaches, the Supreme Court will take on more prominence as an election issue," said Edward Lazarus, author of an inside account of the high court, "Closed Chambers." "The court will always be viewed as a political institution to some extent because we are a deeply political nation that translates those political issues into law."

And that has activists on both sides of the debate excited and nervous about who will occupy the White House come January. The progressive People for the American Way has launched new political ads criticizing McCain's views on preventing gender discrimination in the workplace. Video Watch a religious monument case the court will hear this fall »

"Tell John McCain we need judges who will protect fair pay for women," the ad urges, "and won't play politics with our paychecks."

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"I am petrified about what's at stake here," said Kathryn Kolbert, president of People for the American Way. "The right wing has been imposing their ideology in a 30-year battle since the days of Ronald Reagan to make the federal judiciary politically and ideologically aligned with their views."

On the other side, the conservative Judicial Confirmation Network has launched a million-dollar campaign warning of a Democratic presidency.

"Choosing the right justices is critical for America," the ad states. "We don't know who Barack Obama would choose, but we know this: He chose as one of his first financial backers a slum lord now convicted on 16 counts of corruption." Video Watch how the high court could come a campaign issue »

"Everything is at stake in this election when it comes to the Supreme Court," said Wendy Long, chief counsel of the Judicial Confirmation Network. "It's been kind of a sleeper issue with so many other issues coming to the forefront. But this train is leaving the station, and it's a very fast and powerful train, and once the election's over, it's going to be gone."

The ad is referring to Tony Rezko, a real estate developer who has contributed to the campaigns of many Democrats, including Obama. Rezko has pleaded not guilty to federal charges of conspiracy, influence peddling and demanding kickbacks from companies seeking Illinois state business. Obama has vowed to give up all funds connected to Rezko and has not been accused of any legal wrongdoing in connection with the case.

Both groups have splashy Web sites and have made urgent appeals in recent months for financial support to their base of believers.

The challenge for these activist groups is convincing the average American voter of the stakes, particularly those who do not hold strong views on many social issues. Video Watch how an obscenity case will be argued before the high court »

"The Supreme Court is very important to the base of both parties," said Thomas Goldstein, a private Washington attorney who has argued many case before the justices. "Conservatives really want to reshape it. Liberals are very worried about [the] direction it's going. What hasn't happened is that it hasn't broken through to the general public, which is really much more concerned with gas prices and the war in Iraq than what's going on here in Washington in the Supreme Court."

That has not stopped lawyers themselves from making their voices and their interests heard where it counts, in the pocketbook.

Five law firms are among the the top 20 contributors to Obama's campaign in the 2008 election cycle, according to a Center for Responsive Politics survey of federal campaign records. Three law offices were included in McCain's top 20 donors. That includes money not from the companies themselves, but from their political action committees (or PACs), individual employees, or their immediate families.

Those law firms represent a range of clients with a stake in what federal courts decide: from corporations to issue advocacy groups. Video Watch whether a woman who lost her arm can sue a drug company »

Perhaps intentionally, the high court itself has not scheduled any hot-button cases before Election Day. A ruling by the justices in June striking down Washington, D.C.'s, ban on handgun ownership was cheered by conservatives, and was mentioned at the time by both Obama and McCain. But the issue has not produced much political mileage since.

The candidates themselves and the groups that support them have chosen to focus not so much on how controversial issues would be decided, but who will decide them. McCain has made his admiration for conservative Chief Justice Roberts and Justice Antonin Scalia a regular part of his stump speeches. Obama's comments in August that Thomas was not "strong enough a jurist or legal thinker at the time" of his 1991 nomination to sit on the high court set off a firestorm of conservative criticism.

The Democratic nominee also said about Thomas: "I profoundly disagree with his interpretations of a lot of the Constitution."

Recent national surveys show that Americans think who the president nominates to the Supreme Court is generally important to them, but election day exit polling finds the courts, and the social issues they rule on, rarely resonate with voters the way the economy, health care and education do. National candidates thus have generally been wary in the past of making the courts a consistent focus of their campaigns.

President Bush's somewhat cryptic support in 2000 and 2004 of Scalia and Thomas -- whom he called "strict constructionists" of the Constitution -- translated into the elevation of fellow conservatives Roberts and Alito, pleasing the president's base.

Many court watchers think any vacancy in the high court over the next four years would probably involve three left-leaning justices. John Paul Stevens is 88, but appears to be in good health, and court sources say he has no intention of retiring. Ruth Bader Ginsburg is 75 and has had past health problems, but she too has told friends she enjoys serving on the court. And David Souter, who turned 69 last month, has made no secret of his disdain of the Washington life and would be happier in his New Hampshire homestead. But his colleagues and friends say that while he is an extremely private man who does not reveal much personally, he has given no indication of leaving the bench anytime soon.

"The importance of the speculation is that all three of them are on the court's list of possible retirements," Goldstein said. "Nobody on the right is really thinking of leaving."


The days when the independent, nonpartisan federal judiciary was viewed by politicians as off the table during elections are long gone. The fact that the courts are now a political football outrages many people, but others say such a strategy is inevitable in a hyperactive information culture.

"The kinds of issues it [the Supreme Court] decides are political in nature in many cases," Lazarus said. "The problems come when the court itself is viewed as partisan. A significant segment of the people doesn't think the court stands above politics to render essentially neutral judgments, but are pushing the ideological agenda of one side or another. Over the long term, that could be damaging to the court."

All About U.S. Supreme CourtJohn McCainBarack Obama

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