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ROBERT SIEGEL, host:

From NPR News, this is All Things Considered. I'm Robert Siegel.

MCHELE NORRIS, host:

And I'm Michele Norris. John McCain is running hard away from President Bush, but there's one aspect of the Bush legacy that the Republican nominee embraces with enthusiasm. That is the appointment of two conservative Supreme Court justices.

SIEGEL: Those appointments tipped the court's balance of power on many issues, and those justices will be making decisions for years long after George Bush goes back to Texas. The next president is likely to be appointing one, two, possibly three new Supreme Court justices. NPR legal affairs correspondent Nina Totenberg is going to peer into the future in two stories. Today, the court and John McCain.

NINA TOTENBERG: To put it bluntly, unless some younger member of the conservative majority unexpectedly retires or dies, conservatives will retain the upper hand on most, though not all issues before the U.S. Supreme Court. The difference is that, if John McCain is elected, conservatives will solidify their control for another generation, and the court will likely become yet more conservative. If Barack Obama is elected, the conservative majority will likely remain, but at a precarious five to four.

That's because the court's most conservative members are, for the most part, it's youngest, while it's liberal justices are among its oldest. Bottom line, it's 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. So, replacing them with liberals wouldn't make any difference, at least in terms of generic vote-counting.

But if a conservative president were to replace these so-called liberal justices with conservatives, it would strengthen the conservative majority to six to three or seven to two. 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 like this

(Soundbite of the 'Judicial Confirmation Network' ad)

Unidentified Man: 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.

TOTENBERG: Not to be outdone are liberal groups like People for the American Way.

(Soundbite of People for the American Way ad)

Unidentified Woman: 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. But when the company appealed to the U.S. Supreme Court, a new justice nominated by George W. Bush and supported by Senator John McCain wrote the opinion that denied her equal pay.

TOTENBERG: 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, he talked about the success of our constitutional system of checks and balances.

Senator JOHN MCCAIN (Republican, Arizona, 2008 Republican Presidential Nominee): There is one, 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. For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never, never intended to be heard in courts or decided by judges.

TOTENBERG: He pointed to the death penalty, property rights, and by inference, privacy, contraception, and abortion decisions.

Sen. MCCAIN: 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.

TOTENBERG: McCain uses many of the code word phrases that conservative politicians used first and liberals later adopted. Thus, a judge who reaches a decision you don't 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, that judge is called an activist by whichever side disagrees. McCain takes aim at Obama's rhetoric about naming qualified individuals with the sense of compassion.

Sen. MCCAIN: Somehow, by Senator Obama's standard, even Judge Roberts didn't measure up and neither did Justice Samuel Alito. Apparently, nobody quite fits the bill 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.

TOTENBERG: That's a reference to Obama's votes against both Roberts and Alito on the grounds that he thought their constitutional views too conservative. Tomorrow, we'll take a look at Obama's approach to selecting Supreme Courts justices and just who is on each candidate's list. Nina Totenberg, NPR News Washington.

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