Analysis: Court's course in next president's hands
By DAVID ESPO
Associated Press
June 13, 2008
WASHINGTON (AP) -- In a campaign dominated by the economy and the Iraq War, the Supreme Court's 5-4 ruling Thursday on detainees at Guantanamo marks a forceful reminder that John McCain promises one course and Barack Obama pledges another in picking future justices.
In the current controversy, McCain quickly expressed his disapproval of the opinion, while Obama issued a statement of support. It fell to outsiders to point out the broader implications in the race for the White House.
''With the replacement of a single justice from the majority ... today's four dissenters could become tomorrow's majority,'' said Nan Aron of the Alliance For Justice. The group supported the court's decision, which said detainees in the war on terror held at Guantanamo have the constitutional right to challenge their incarceration in the federal courts.
Security must exist ''in fidelity to freedom's first principles,'' wrote Justice Anthony Kennedy for a majority seeking to balance the nation's security needs with individual rights enshrined in the Constitution. He went on to criticize the Bush administration and Congress for yielding too much to the former at the expense of the latter.
Of the five justices who created a majority in the case of the Guantanamo detainees, Justice John Paul Stevens is 88, Ruth Bader Ginsburg is 75, and David Souter and Stephen Breyer are each 69. Kennedy is 71.
The generally younger dissenters were Chief Justice John Roberts, 53, and Justices Samuel Alito, 55, Clarence Thomas, 59 and Antonin Scalia, 72.
Since Supreme Court seats are lifetime appointments, vacancies do not always occur in the four years allotted to a presidential term. That makes any discussion about the impact of a campaign on the high court inherently speculative.
But hardly pointless.
In the last 80 years, Jimmy Carter, a one-term president, was the only chief executive who did not have an opportunity to make a Supreme Court appointment. George W. Bush has filled two seats, and in the process strengthened a conservative shift that began four decades ago with Richard Nixon, ran through the presidencies of Ronald Reagan and George H.W. Bush and managed to outlive Bill Clinton's two terms in office.
Based purely on the ages of the current justices, the nation's 44th president can reasonably expect to fill at least one vacancy.
By their votes in the Senate and their comments as candidates, Obama and McCain signal supporters of their intentions without saying they would apply the type of litmus test that might infringe on the independence of the judiciary.
Often, but not always, these comments are addressed largely to supporters and opponents of abortion rights.
''I would not appoint somebody who doesn't believe in the right to privacy,'' the underpinning to abortion rights, Obama said in a campaign debate in Las Vegas in November 2007. Pointing out that he once taught constitutional law, he added, ''Part of the role of the courts is that it is going to protect people who may be vulnerable in the political process, the outsider, the minority, those who are vulnerable, those who don't have a lot of clout.''
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