Supreme Court appointees hold real power in the US

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The Independent US

Both are chasing the undecided centre ground in this most closely contested election in four decades. On a host of foreign and domestic policy issues, it's a job to distinguish between them. Yet in one crucial area George W Bush and Al Gore offer a stark, fundamental choice whose repercussions could last a generation: the future shape of the Supreme Court.

Both are chasing the undecided centre ground in this most closely contested election in four decades. On a host of foreign and domestic policy issues, it's a job to distinguish between them. Yet in one crucial area George W Bush and Al Gore offer a stark, fundamental choice whose repercussions could last a generation: the future shape of the Supreme Court.

Technically, the court's function is to protect the constitution; but in a litigious country which tends to settle its differences through the judicial system, its decisions can in practice have more impact than almost any congressional legislation. The great battles of post-war America on desegregation and civil rights, abortion and affirmative action have been decided by the nine black-robed justices of the Supreme Court.

And in these times of peace, when the US government is more often than not divided and the limitations on a president's domestic powers are so evident, that reality is truer than ever. Short of war and peace, almost the most important decisions the president can take are his appointments to the Supreme Court, whose impact will persist years, even decades, after he himself has left office.

Some presidents, such as Jimmy Carter, never get to make a single one. However, actuarial luck means that either Bush or Gore could find himself choosing four justices who, once approved by the Senate, may stay in office as long as they are sound of mind and body.

On the campaign trail, the candidates may argue as if they alone will shape the future of America's education, healthcare and taxes. The truth is that on the first of those issues, 95 per cent of public spending is determined at state level; and on the other two the White House may propose but it is Congress which disposes. The choice is rarely between left and right, but between compromise and deadlock.

But the victor on 7 November could have the opportunity to remake the court - and that represents real power for the president. A Bush win would make the present conservative majority virtually watertight, and open the way for a curtailment of affirmative action, gay rights and the powers of the federal government.

Gore appointments, however, could create the first moderate-liberal court in a generation, whose consensus might persist long after the Republicans have recaptured the White House.

A Democrat may have held the White House for the past eight years. But the prevailing majority bloc on the court remains conservative, made up by William Rehnquist, the Chief Justice first appointed to the High Court in 1972 by Richard Nixon, and four appointees of Ronald Reagan and George Bush Sr, Republicans both.

If he wins next Tuesday, Mr Gore may well take a bolder tack than President Clinton, whose two nominees, Ruth Bader Ginsburg and Stephen Breyer, have been mainstream moderate liberals. The vice-President's avowed judicial hero is Thurgood Marshall, the first black justice and a legend of the civil rights movement. A Gore-moulded court would be more innovative and interventionist on many issues, ranging from individual rights to the environment.

A Republican victory would send more conservatives to join Antonin Scalia, Sandra Day O'Connor, Anthony Kennedy and Clarence Thomas. Asked to name the member of the court he most admires, Mr Bush invariably names Justice Scalia, the intellectual force behind the conservative bloc, and a likely Chief Justice to replace the 76-year-old Rehnquist should he step down soon.

But the next to resign could be from the minority liberal-moderate wing. Justice John Paul Stevens is 80, above the median retirement age of 78, while Justice Ginsburg has recently been in uncertain health. "Three or four new justices like Scalia and Thomas," says Ralph Neas of the People for the American Way liberal advocacy group, "and we'd be turning the clock back 40 to 60 years." That may be an exaggeration, as may be fears for the fate of Roe vs Wade, the 1973 ruling upholding abortion rights. (In fact only the three core conservatives - Thomas, Scalia and Rehnquist - would do away with it completely.) But even a shift of one vote to the right could see the court rolling back affirmative action and limiting federal government power. Mr Bush insists any appointee must be "constructionist" - ie a jurist who sticks to the letter of the law and eschews all temptation "to legislate from the bench".

About the only thing the two presidential camps agree on is that one of their first appointees will be a Hispanic - one of the few available remaining "firsts" now that blacks and women have taken seats on the court.

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