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Supreme Court's Direction Hinges on Who Wins '08 Race

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By Robert Barnes
Washington Post Staff Writer
Monday, October 6, 2008

There were not many conspicuous tributes to the legacy of President Bush at last month's Republican National Convention, but there was at least one.

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It was a campaign button with the words "Thanks, W" across the top and photos of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. beneath the letters.

Conservative legal activists view the two men as remarkable successes in Bush's quest to move the court to the right, and that is part of the reason that, as the court begins its work anew today, public attention is focused less on the cases at hand than on the court's future.

It is a future entirely dependent on whether Sen. John McCain or Sen. Barack Obama prevails in November.

"A President Obama or a President McCain will likely be handed an opportunity to affect the makeup of the Supreme Court that is unprecedented in our history," said Wendy Long, chief counsel for the Judicial Confirmation Network, which was active in generating public support for the confirmations of Roberts and Alito.

Obama, supported by a strongly Democratic Senate, could be presented with three openings during his first term, said Walter Dellinger, a prolific Supreme Court practitioner who was acting solicitor general in the Clinton administration.

He said it likely that Justices John Paul Stevens, 88, Ruth Bader Ginsburg, 75, and David H. Souter, 69, would step down in the next four years if Obama were elected.

"President Obama is going to be able, I think, to name whoever he wishes to the court and have that person confirmed," Dellinger said last week during a discussion at the Institute of Bill of Rights Law at William and Mary Law School.

But whether that would alter the court's basic dynamic is hardly clear.

The court is roughly balanced on important constitutional issues, with four consistent conservatives, four liberals and, in the middle, Justice Anthony M. Kennedy, who leans right on many issues but often joins liberals on some of the court's most controversial decisions.

Replacing liberals Stevens, Ginsburg and Souter with similar-minded justices would infuse the left wing of the court with younger leadership but leave the basic balance intact.

"What you really want to do in reshaping the court is change the median justice," said John McGinnis, a constitutional law expert and professor at Northwestern University. "That changes a lot more votes in the long run than just exchanging one liberal for another or one conservative for another."


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