Next president could reshape U.S. Supreme Court

One of the most momentous and least-discussed topics in the presidential campaign is the likely departure in the next four years of as many as three of the more liberal justices on a closely divided U.S. Supreme Court.When the subject of judicial appointments was raised during the last debate, Democrat Barack Obama observed that Roe vs. Wade, the 1973 Supreme Court ruling that legalized abortion, "probably hangs in the balance" on the outcome of the election.Obama, who supports the ruling, and Republican John McCain, who wants it overturned, then took pains to deny that they would use the case as a "litmus test" in choosing a future justice -- denials that their own words appear to contradict.As McCain put it, he doesn't believe anyone who backs Roe vs. Wade "would be part of those qualifications" he will require for judicial nominees, such as "a history of strict adherence to the Constitution." Obama, for his part, has said he favors nominees who support the constitutional right of privacy, the legal underpinning of the 1973 ruling.But abortion is only one of many issues in which the court's moderate-to-liberal bloc of four justices has joined with the moderately conservative Justice Anthony Kennedy to form a precarious majority -- one that would probably be undone by a McCain appointee.For starters, there was the 5-4 ruling in June that allowed prisoners at the U.S. naval base at Guantanamo Bay, Cuba, to challenge their confinement in federal court, a decision that McCain called "one of the worst" in U.S. history.In other close decisions, the court has allowed consideration of racial minority status in college admissions, barred executions of juveniles and the mentally retarded, applied environmental laws to global warming, upheld congressional authority to limit campaign contributions, overturned laws against gay sex and restricted religious displays on public property.In each of those cases, the majority included Justices John Paul Stevens, 88; Ruth Bader Ginsburg, who is 75 and in uncertain health; and David Souter, 69, widely reported to be considering retirement.The departure of any of them after a McCain victory would undoubtedly lead to an intense battle over confirmation of a successor in a Senate that is likely to remain under Democratic control.The election "will determine whether the Supreme Court becomes substantially more conservative or stays ideologically the same," said Erwin Chemerinsky, the law school dean at UC Irvine.Recent history suggests that even a solidly Democratic Senate wouldn't stand up to a determined Republican president on Supreme Court nominations, Chemerinsky said. He noted that the Senate, under Democratic majorities, approved conservative Justices Clarence Thomas and Samuel Alito without resorting to filibusters that might have thwarted confirmation.On the other hand, the most outspokenly conservative nominee of the last few decades, Robert Bork, was denied confirmation by a Democratic-controlled Senate in 1987, leading President Ronald Reagan to settle on the more centrist Kennedy. Obama's vice presidential running mate, Delaware Sen. Joe Biden, chaired the Senate Judiciary Committee during the Bork and Thomas hearings.Obama, as president, would probably have little chance to change the court's direction in the short term, as the more conservative justices -- Chief Justice John Roberts, 53, and Justices Alito, 58, Thomas, 60, and Antonin Scalia and Kennedy, both 72 -- have given no hint of any retirement plans. Nor has Justice Stephen Breyer, 70, who usually votes with the more liberal bloc.Obama and McCain have also disagreed on the proper standards for picking judges.Obama, a former constitutional law professor, said last year that he would look for candidates with "the heart, the empathy, to recognize what it's like to be a teenage mom. The empathy to understand what it's like to be poor, or African American, or gay, or disabled, or old."McCain and his supporters say Obama's approach to judicial selection is wrongheaded and would result in jurists who elevate their personal preferences above the Constitution."I'm troubled by Senator Obama's comments that he would look for judges who would look to their heart and sense of fairness in deciding cases instead of looking to the law," said Rachel Brand, a former assistant attorney general in the current Bush administration who is part of McCain's loose-knit "justice advisory committee.""There's something fundamentally undemocratic about that. The people decide what the law is. Judges should apply it."McCain speaks in similar terms. In a speech at Wake Forest University in May, he denounced judges who "rule on policy questions that should be decided democratically" and show "little regard for the authority of the president, the Congress and the states," and "even less interest in the will of the people."He has identified Roberts and Alito as his models for future appointments. Obama voted against both of them.Although Obama is clearly more liberal than McCain, his positions on court-related issues have been somewhat centrist during the campaign.Like McCain, he criticized the court's decision this year to bar death sentences for child rapists, and praised the landmark ruling recognizing a constitutional right to own guns. Obama's judicial advisers include Harvard law Professor Laurence Tribe, a noted liberal who endorses a right of gun ownership, and the University of Chicago's Cass Sunstein.E-mail Bob Egelko at begelko(at)sfchronicle.com.(Distributed by Scripps Howard News Service, www.scrippsnews.com.)