John McCain is running hard and fast from President Bush, but there is one aspect of the Bush legacy that the Republican nominee embraces with enthusiasm: Bush's appointment of two conservative Supreme Court justices.
Those appointments tipped the court's balance of power on many issues and are widely viewed as the president's most enduring legacy. While the economy and the war have dominated the debate in this presidential election, the next president's choice of one, two or even more Supreme Court justices is likely to have a profound effect on the nation.
To put it bluntly, unless some younger member of the conservative court majority unexpectedly retires or dies, conservatives will retain the upper hand on most, though not all, of the issues before the U.S. Supreme Court.
The difference is that if McCain is elected, conservatives will solidify their control for another generation, and the court will very likely become more conservative.
If Barack Obama is elected, the conservative majority will most likely remain, but at a precarious 5-to-4 margin. That's because the court's most conservative members are, for the most part, its youngest, while its liberal justices are among its oldest.
The bottom line is that it is widely expected that there will be at least two vacancies in the next few years, but the justices most likely to leave — 88-year-old John Paul Stevens and 69-year-old David Souter — are from the court's liberal wing. Replacing them with liberals would not make any difference, at least in terms of generic vote-counting.
But if a conservative president were to replace those so-called liberal justices with conservatives, it would strengthen the conservative majority to 6 to 3 or 7 to 2. Conservatives would no longer need the vote of Justice Anthony Kennedy, who occasionally abandons them for the liberals; and conservative opinions would not have to be trimmed back to accommodate Kennedy.
In the political world, social conservatives have been very suspicious of McCain, but not suspicious enough to desert him. Thus, conservative groups like the Judicial Confirmation Network are running ads that say "choosing the right justices is critical to America."
"We don't know who Barack Obama would choose, but we know this: He chose as one of his first financial backers a slumlord now convicted on 16 counts of corruption. Obama chose as an associate a man who helped to bomb the Pentagon," the Judicial Confirmation Network ad says.
Not to be outdone are liberal groups like People For the American Way.
"For years, Lily Ledbetter was paid far less than the men in her factory for doing the same work, and she proved it in court," goes its ad. "But when the company appealed to the U.S. Supreme Court, a new justice nominated by George W. Bush and supported by Sen. John McCain wrote the opinion that denied her equal pay."
McCain has tried to allay suspicions among social conservatives by adopting their rhetoric and pledging to appoint justices in the mold of Bush appointees John Roberts and Samuel Alito. In a speech at Wake Forest University in North Carolina, McCain talked about the success of the constitutional system of checks and balances.
"There is one great exception in our day, however, and that is the common and systematic abuse of our federal courts by the people we entrust with judicial power," McCain said. "For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges."
McCain pointed to decisions on the death penalty, property rights and, by inference, privacy, contraception and abortion.
"One act of raw judicial power invites others, and the result, over many years, has been a series of judicial opinions and edicts wandering farther and farther from the clear meanings of the Constitution and from the clear limits of judicial power that the Constitution defines."
McCain uses many of the code words — phrases that conservative politicians used first and that liberals later adopted. Thus, a judge who reaches a decision you do not like is an "activist." A judge who strikes down a duly enacted law — whether it be limiting abortion on the one hand, or campaign contributions on the other — is called an activist — by whichever side disagrees.
McCain takes aim at Obama's rhetoric about naming qualified individuals who have a sense of compassion.
"Somehow, by Sen. Obama's standard, even Judge Roberts didn't measure up and neither did Justice Samuel Alito. Apparently, nobody quite fits the bill, except for an elite group of activist judges, lawyers and law professors who think they know wisdom when they see it — and they see it only in each other," McCain said.
That's a reference to Obama's votes against both Roberts and Alito on the grounds that he thought their constitutional views were too conservative.
On Thursday, we will look at Obama's approach to selecting Supreme Court justices, and just who is on each candidate's list.