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Bush Impact on Supreme Court Unclear


One of the results of the November 2 national elections in the United States is that the conservative Republican Party retained control of the White House and increased its majorities in Congress. But it is unclear what impact the election will have on the third branch of government, the Supreme Court. President Bush's conservative supporters are confident that during the President's second four-year term, the high court will make a decided shift to the right.

A more conservative-minded Supreme Court could reverse what many Americans regard as the nation's moral decline: a legacy, they believe, of a liberal court that has legalized abortion and maintained a strict separation between church and state.

Michael Greve is a legal scholar at the American Enterprise Institute, a think tank in Washington, D.C. He says that in the recent election, voter concern about "moral values" - as indicated by post-election surveys, and the success of referendums banning gay marriage - should send a clear signal to the high court.

"11 states had amendments, state constitutional amendments, on homosexual marriage precisely because they were afraid of the courts," he noted. "The social conservatives got the President elected."

But will the U.S. Supreme Court issue new rulings on key social issues because of the election results? Sheldon Goldman is a professor of political science at the University of Massachusetts at Amherst:

"No. No. I think if the public opinion polls were overwhelmingly opposed to abortion, maybe they might start to rethink that," said Mr. Goldman. "Or at least one or more might start to rethink that. But on the basis of people saying in exit polls, 'I voted for Bush because of moral values,' that's not going to change a justice's vote."

But what's clearly changing on the high court is that at least some of the justices, who are appointed for life, are getting too old. Three have had cancer. Chief Justice William Rehnquist was recently diagnosed with a serious form of thyroid cancer.

David Garrow, an expert on the high court at Emory University in Atlanta, Georgia," says "since in the United States there is unfortunately no mandatory retirement age for Supreme Court justices, it's become quite common to have justices not only in their late 70s, but in their mid 80s. Now in the United States, no one would run for President in their 80s, but we have a quite regular situation here now, where indeed the court is peopled almost exclusively by justices over 65 or in many cases, over age 70 or 75," he explained.

Only Justice Clarence Thomas is younger than 65. Analysts of the Supreme Court believe that as a result of age and ill health, as many as three justices are likely to resign in the next four years. That would give President Bush an extraordinary opportunity to replace each of them with like-minded conservatives. Will he seize the chance?

Again, Mr. Garrow of Emory University says "it's not necessarily the case that President Bush and his political advisers really want to achieve what they say they want to achieve," he added. "Abortion is the most dramatic example of this. Any politically savvy adviser realizes that while President bush presents himself as a very strong religiously-based opponent of abortion, that nonetheless, should the Supreme Court overturn constitutional protection of a woman's right to an abortion, that the political backlash of such a decision would be huge."

Other analysts believe conservative nominees to the Court might not win Senate approval, even in a Republican-controlled Senate, because Democrats are expected to filibuster, or stall, the vote indefinitely and Republicans do not have the 60 votes needed to break a filibuster.

Sheldon Goldman of the University of Massachusetts says we've seen this political drama before: conservatives get euphoric about a conservative elected President but in the end, they fail to rollback a liberal court.

"Ronald Reagan won a landslide in 1984," he noted. "Ronald Reagan made no secret of his views anti-abortion, moral values, the whole litany. That was a landslide. This is not a landslide that we've had now. That [in 1984] was a landslide. He first nominated Antonin Scalia. Scalia got through. Then he nominated [Robert] Bork. It was very different because it was the issue of Roe v. Wade [openly opposed by Bork]."

Still, Michael Greve of the American Enterprise Institute notes that President Bush has indicated he favors nominating justices with a strict constructionist view of the Constitution, a judicial philosophy generally regarded as anti-abortion. Mr. Bush has said he favors a justice in the mold of the high court's strongest conservatives, Antonin Scalia and Clarence Thomas.

At this stage, it is unclear what President Bush is willing to risk to re-shape the Supreme Court -- a protracted battle in the Senate, or accusations that he is dividing the country over issues like abortion. What is clear is that unless his nominations move the Court to the right, President Bush risks losing the support of the religious and social conservatives who helped him win another four years in the White House.

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