The news that a Supreme Court justice is being treated for cancer should remind voters of a president's power to shape the high court.
Published October 26, 2004
No important issue gets less attention during a typical presidential race than the question of the Supreme Court's future. The power to appoint one or more justices to the court can give a president continuing influence over the country's direction long after his own term ends. Yet the subject usually is overshadowed by more transitory issues in the heat of a presidential campaign.
The timing of the news that Chief Justice William Rehnquist is being treated for thyroid cancer should call attention to the Supreme Court's future in the final days of the 2004 campaign. Court officials say Rehnquist, 80, expects to be back at work next week when the justices begin their fall term. But even before his cancer treatments were revealed, Rehnquist was rumored to be considering retirement.
History and the actuarial tables suggest that the next president probably will have at least one court vacancy to fill. The court's makeup has not changed in 10 years, an extraordinary period of stability. At least three other justices have been treated for cancer, and all of the justices except for Clarence Thomas are at least 65 years old.
President Bush says he would have no litmus tests in considering Supreme Court nominees, but his past words and actions are revealing. His lower-court nominees have tended to be relatively young right-wing ideologues, and he says his favorite current justices are Thomas and Antonin Scalia, who were young ideologues when they were appointed to the court. Bush also has never nominated a lower-court judge with a record of direct support for Roe vs. Wade , and some of his recent comments have been interpreted as signals to social conservatives that he would like to see the court reverse that landmark abortion ruling.
Democrat John Kerry's views on possible Supreme Court appointments have received less scrutiny. Kerry says he would not nominate a judge who might unravel Roe, but that narrow issue should not overshadow broader questions about the personal and philosophical qualities a President Kerry would look for in a new justice.
Rehnquist, who joined the court in 1972, continues to shape public policy three decades after the president who appointed him was impeached. The outcome of this presidential election could well determine the direction the Supreme Court takes over the next 30 years.
