The Lasting Legacy of a Supreme Court Nomination

A Supreme Court nomination, as George Bush has made clear, can be a president's greatest and most lasting legacy. It took bruising battles, but Bush brought real change to the court, which he turned to the right with his successful nominations of John Roberts and Samuel Alito.

The next president, whether it's John McCain or Barack Obama, can undo many of Bush's programs and policies. But he won't be in a position to change the Supreme Court until a justice or two decides it's time to go -- and even then, it depends on which justice retires and who is tapped (and confirmed) as the replacement.

On the eve of this historic election, it seems likely a President McCain or President Obama would get a shot at creating a legacy of his own. At least one justice is expected to retire over the next four years, and possibly up to three. Five justices, after all, are 70 or older. John Paul Stevens is 88.

That means that as much as Bush pointed the court in a more conservative direction -- on abortion rights restrictions, on racial preferences, on religious liberty -- the next president could achieve even more dramatic change. With the court closely divided by one vote on those and other controversial issues, the next president could have a profound impact on its direction with a single nomination.

On that point, both sides agree. Outside advocacy groups on the right and left are pouring time and money into the issue, seeking to rally supporters and attract independent voters by highlighting how dramatically the next president could shape the court -- and American life -- for a generation.

"There is no single issue on which the next president, by himself, will have any greater impact than the Supreme Court," said Wendy Long, counsel to the conservative Judicial Confirmation Network, which has been running television advertisements in key battleground states.

"The future of the Supreme Court and probably the law as we know it over the next 40 years are at stake," Kathryn Kolbert, president of the liberal group People for the American Way, said at a recent forum.

The court now is split between four solid judicial conservatives (Roberts, Alito and Justices Antonin Scalia and Clarence Thomas) and four liberals (Stevens and Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer). Moderate conservative Anthony Kennedy is the new "swing vote." He usually sides with conservatives, but on some issues, such as the death penalty and the scope of presidential power, he votes with the liberals.

With that kind of lineup, one new justice could shift the balance of power. But most court watchers believe McCain, not Obama, could make the most pronounced shift in the court, at least in the short-term.

That's because the three most likely contenders for retirement are all liberal: Stevens, who will be 92 at the end of the next administration; Ruth Bader Ginsburg, who is 75; and David Souter, who has reportedly told friends he'd like to return home to his native New Hampshire.

Replacing them with a conservative would minimize Kennedy's role as the swing vote and turn the court further to the right on key issues like race, the environment, religion, abortion, the death penalty and the war on terror.

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