For divided high court, two potential legacies

One candidate taught constitutional law and tapped a former Senate Judiciary Committee chairman as his running mate. The other once helped ease tensions in the Senate over judicial nominations, and has teamed up with a woman whose passionate opposition to abortion has energized conservative Republicans.

The differing experiences between the candidates are an intriguing backdrop to questions about how they would handle lifetime appointments to the Supreme Court, which is split on social policy issues ranging from reproductive rights to the scope of executive power.

On the Democratic side, presidential nominee Barack Obama is a lawyer and former University of Chicago law professor. His running mate, Joe Biden, also a lawyer, led the Senate Judiciary Committee — which vets high court nominees — for eight years.

The Republican side pairs presidential nominee John McCain — a senator who three years ago took the lead in resolving a dispute over President Bush's nominations to federal courts — with Alaska Gov. Sarah Palin. She is a vocal critic of abortion rights whose selection was embraced by conservative Republicans who have made moving the Supreme Court to the right a priority.

During a fall campaign dominated by the economic crisis, debate over two wars and arguments over who is more fit for office, discussion of how the next president will handle Supreme Court nominations largely has been overshadowed. Even so, the differing experiences of Obama, McCain and their running mates offer clues as to how the candidates might approach vacancies on the bench.

The appointment of life-tenured judges can be an administration's most consequential legacy, as Obama and McCain observed in last week's debate. Five of the nine Supreme Court justices are age 70 or older, so a new president might have to make multiple appointments.

Because the court is tightly split over issues such as abortion rights, race-based policies and the handling of Guantanamo Bay detainees, even a change of one justice could alter the law across the nation for decades to come.

Republican presidents have tended in recent decades to appoint men in their 40s and 50s, including Justice Clarence Thomas, who was 43 at the time of his appointment, Chief Justice John Roberts, who was 50, and Justice Samuel Alito, who was 55.

"People don't realize how much is at stake," says Walter Dellinger, who as U.S. solicitor general under President Clinton was the government's top lawyer before the court from 1996-97.

"It is highly likely there will be (up to) three vacancies in the next president's first term," says Theodore Olson, U.S. solicitor general from 2001-04. "Justices serve on average 25 years. That's six presidential terms. They make life or death decisions."

Olson, a chairman of McCain's legal team, successfully argued Bush v. Gore, in which the conservative-led Supreme Court resolved the 2000 Florida election dispute and gave Republican George W. Bush the White House.

Just whom either candidate would choose for the high court is impossible to know. Based on their backgrounds and outlooks, Obama and Biden likely would be centrally involved in the selection process. Obama says he wants a justice who will "stand up" for the disadvantaged.

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