WASHINGTON – The outcome of tomorrow’s presidential election could affect the nation’s judicial system well into the next century.

Legal experts believe that as many as three Supreme Court justices, including Chief Justice William Rehnquist, could retire in the next four years, allowing the next president to give an ideological tilt to the nation’s highest court.

“The impact of the president lasts far beyond the president’s term of office,” said Sheldon Goldman, professor of political science at the University of Massachusetts at Amherst.

As the 20th century nears its end, the high court is expected to consider anew such hot-button issues as abortion, the right to die, affirmative action and voting equality.

But it also may have to delve into “uncharted territory,” said Paul Rothstein, law professor at Georgetown University, and rule on cases involving the Internet, advanced computer technology, and even space exploration.

“It’s a tremendous opportunity for the new president to influence not only the Supreme Court, but the direction of this country for 30 or more years to come,” Rothstein said.

Legal scholars say the current court cannot be categorized as conservative or liberal.

Its conservative voting bloc consists of three justices, Rehnquist, Antonin Scalia and Clarence Thomas, all appointed by Republican presidents.

They are often, but not always, joined by Justices Sandra Day O’Connor and Anthony Kennedy, both appointed by Ronald Reagan.

Justices Ruth Bader Ginsburg and Stephen Breyer, both appointed by President Clinton, are considered moderates, although left-leaning. Justices David H. Souter and John Paul Stevens, both Republican appointees, are considered moderates who at times vote with the more liberal members.

If Clinton is re-elected, his prospects of shifting the court’s balance to the left will depend on the election’s outcome for the Senate. The upper chamber of Congress, which is controlled by the Republicans, must approve all Supreme Court nominees.

If GOP control continues, Clinton will have a hard time nominating some of the people many liberal Democrats are hoping for, such as Interior Secretary Bruce Babbitt, former New York Gov. Mario Cuomo, or even first lady Hillary Rodham Clinton.

“Hillary Clinton is never going to sit on the Supreme Court,” said GOP pollster Kellyanne Fitzpatrick.

Despite the long-term consequences, judicial nominations have not been a major campaign issue for Clinton, his Republican challenger Bob Dole or any other candidate.

Early in the campaign, Dole accused Clinton of using his appointments to put a liberal stamp on the federal courts, but of late the GOP nominee has made little of the issue.

Fitzpatrick said few Americans base their votes solely on a candidate’s stance on Supreme Court nominations. But voters have begun to consider judicial nominations among the wide range of issues they examine.

Legal observers say one reason for that is the increase in television and newspaper coverage of legal issues during the past five years.

Still, Fitzpatrick acknowledged that few voters fully realize the importance of the president’s power to shape the judiciary.

“Too many people don’t focus on the fact that the president is charged with recruiting, screening and nominating members of the highest court in the land,” she said.

Clinton’s two appointments to the high court, Ginsburg and Breyer, were considered “hand-picked” moderates. Dole voted to confirm both.

Clinton has also appointed more than 200 judges to district and appellate courts. Legal observers say those appointees were moderates.

“By and large, the lower court appointments mirror the Supreme Court appointments,” Goldman said. “They are middle of the road or just left of center.”

The prospect of Supreme Court vacancies is worrying some conservatives, legal experts say, because Republican presidents appointed the three jurists who are considered most likely to retire – Rehnquist, 72; Stevens, 76; and O’Connor, 66.

Stevens is considered a probable retiree because of his age, Rehnquist is said to have back problems and O’Connor is believed to have other health problems. But Rehnquist, named to the court by President Richard Nixon in 1971, is unlikely to resign if President Clinton wins a second term, observers say.

“If Mr. Clinton is re-elected, the chances are that the chief justice might decide to hunker down for another four years,” Goldman said.

If Rehnquist does leave, Goldman said, Clinton is widely expected to elevate Ginsburg to chief justice. She would be the first woman and the first Jew to occupy the post.

“This is a president who likes firsts,” Goldman said.

Ginsburg would differ greatly from Rehnquist, who opposes abortion rights, affirmative action and racial redistricting. He favors business interests over consumer rights and state government over the federal government.

Ginsburg is a strong advocate of women’s rights and a woman’s right to have an abortion. She also has a history of defending consumer rights.

In January 1995, the high court rejected arguments from Fort Worth-based American Airlines and ruled 6-2 that travelers can sue air carriers in state courts for retroactively changing the rules of frequent-flier programs.

Ginsburg wrote the majority opinion and said she found American’s interpretation of the law too broad.

Stevens, appointed by President Gerald Ford in 1975, is seen as most likely to retire.

“Stevens might chose to retire because he would know that Clinton will replace him with another moderate,” Goldman said.

O’Connor, appointed by Reagan, is the most unpredictable of the three.

She has been widely rumored to have had serious health problems, although she appears healthy and is said to be active, enjoying camping trips in the Shenandoah Valley.

Author: MICHAEL D. TOWLE; Knight Ridder – Washington Bureau

Copyright 1996