Even with changes, court's shift might only be marginal

WASHINGTON -- Despite talk of changes on the Supreme Court stirred up by the news that Chief Justice William Rehnquist has cancer, many court observers believe the sheer intensity of confirmation battles in the Senate in recent years would make it difficult for any president to put an ideological stamp on what is now a moderate-to-conservative court.

Barring an unexpected landslide, both parties will have enough clout in the Senate to block judicial nominations using filibuster rules. And people on both sides of the bitter confirmation divide say they hope that fact alone would motivate either President Bush or John F. Kerry to choose broadly acceptable Supreme Court nominees.

Nonetheless, the news of Rehnquist's treatment for thyroid cancer sent a tremor through a campaign in which judicial nominations -- the political vehicle to discuss such social issues as abortion, affirmative action, and gay marriage -- have so far taken a back seat to terrorism and the economy.

Some activists on both sides seized on Rehnquist's illness to warn of dire consequences if the other party got to choose his replacement. And some political observers predicted that changes on the Supreme Court would be a motivating tool to get some voters to the polls.

"The prospect of a court opening would have some effect on the vested interests -- and abortion is the biggest vested interest in any court fight," said Rick Davis, a Republican consultant working with Arizona Senator John McCain. "Prochoicers, who fear change on the court, will be motivated to go out and vote. The prolifers, who want a change on the court, would be more motivated to vote."

The next few years could easily mark a changing of the guard on a court that has been less of an ideological force than a tribunal dominated by moderates such as Sandra Day O'Connor, Anthony Kennedy, and Stephen Breyer, who wrestle with thorny issues and seek consensus.

There have been two decisions in recent years likely to stir debate for decades, however. One was the 5-to-4 vote to end the Florida recount and grant the presidency to George W. Bush. The other was the 2003 decision in Lawrence v. Texas to grant sweeping "due process" protections to gay people.

The Lawrence decision, by a 6-to-3 vote, provoked an angry dissent from the court's reigning conservative, Antonin Scalia, and has become a touchstone for voters opposed to judicial activism.

Otherwise, the court has been more likely to bite around the edges of controversial matters. It granted some procedural protections to "enemy combatants" at the military's Guantanamo Bay prison, but stopped short of providing full judicial review.

The court's affirmative action decisions in 2003 allowed consideration of race in university admissions, but ruled out quotas. A split court banned the death penalty for the mentally retarded. On business issues, the court has been more conservative, limiting the scope of the government's power to regulate interstate commerce for the first time in decades.

Meanwhile, the court has gone 10 years without an opening and is getting old. Eight of the nine justices are older than 65. The eldest -- liberal stalwart John Paul Stevens -- is 84.

Bush has not made an appointment, though he has signalled his desire to remake the judiciary by placing conservatives on lower courts.

About 200 Bush appointees have been confirmed, but Democrats in Congress invoked the filibuster rule to block seven of Bush's most prominent appointees to appellate judgeships.

Another one, former federal prosecutor Miguel Estrada, withdrew under fire, while Bush placed two others as recess appointments, meaning they can serve until January before facing confirmation.

In the second presidential debate, Bush elaborated on his vision of a Supreme Court justice: "I would pick somebody who would not allow their personal opinion to get in the way of the law. I would pick somebody who would strictly interpret the Constitution of the United States."

While some watchdog groups rate Bush's appointees as more conservative than Ronald Reagan's, the name most often mentioned as a Bush Supreme Court pick -- White House counsel Alberto Gonzales -- carries a reputation for moderation.

Michael J. Horowitz, a former Reagan administration counsel and senior fellow at the conservative Hudson Institute, said he believes Bush has not stressed judicial nominations enough in the campaign, particularly since the Massachusetts Supreme Judicial Court's decision to grant gay marriage provided an opening to question Kerry on whether he would appoint judges who would rule the same way.

"The whole issue of courts and democratic government has been presented as a political gift to Bush by four judges of the Massachusetts supreme court," Horowitz said.

Kerry has not mentioned possible Supreme Court justices, but has gone further than some past Democratic presidential contenders in promising to appoint those who would uphold abortion rights.

"Will we have equal opportunity? Will women's rights be protected? Will we have equal pay for women, which is going backwards? Will a woman's right to choose be protected?" asked Kerry in the second debate. "These are constitutional rights, and I want to make sure we have judges who interpret the Constitution of the United States according to the law."

But Kerry, too, has drawn fire from supporters who believe he hasn't stressed the dangers of the right-wing judicial agenda often enough.

Ralph Neas, president of the watchdog group People for the American Way, said Democrats would be foolish to rely on the Senate to block conservative Bush nominees, especially when the next president could have many picks.

"There's a tremendous risk in saying, 'Don't worry about the court because the Senate would block another Scalia,' " said Neas, noting that Scalia won a near-unanimous confirmation while highlighting his pride in being the first Italian-American nominee.

Still, the nominating process has gotten far more contentious in the two decades since Scalia was confirmed: During the Clinton administration, Republican senators refused hold committee hearings on nominees they disliked, and during the Bush years, Senate Democrats have launched filibusters that require a super-majority of 60 votes to end.

Such tactics have "poisoned the atmosphere up there but also given senators two powerful weapons to block presidential appointees," said William P. Marshall, who served as deputy counsel in the Clinton White House.

And even Horowitz, of the Hudson Institute, said he believes the prospect of a losing confirmation battle would auger against strongly ideological choices.

"Critical choices" articles examining the candidates' stands on health care, the economy, fiscal policy, civil liberties, energy and the environment, gay marriage, Social Security, the war on terror, foreign affairs, nuclear proliferation, and Iraq can be viewed at www.boston.com/politics.