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Obama's job No. 1 is halt high court's rightward swing

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In legal circles, one of the most damning insults you can hurl at judges is to call them "results- oriented."

OK, so it doesn't carry the same punch as insults the rest of us lob at each other. My e-mail inbox suggests "complete idiot" is currently in vogue.

Court watchers may toss the epithet about, but most of us care more about what judges decide than how they decide it.

If it matters to you whether the U.S. Supreme Court reverses Roe v. Wade, eases regulations on business, makes it harder to sue wrongdoers or punish criminals, extends presidential powers or curtails individual rights, you care about results.

As the Democratic National Convention this week kicks off the next phase of the race for the White House, there is hardly a question more consequential than how the next president will pick the next Supreme Court justice.

Given the ages of the justices -- five are older than 70 -- there may be two or three vacancies to fill.

And given the 5-4 divide in hot-button cases, the appointments could be crucial and shape the law for decades to come.

If John McCain is elected, the religious right and other social conservatives he is wooing will probably get their long-awaited chance to capture a clear Supreme Court majority.

So long, Roe v. Wade, the ruling that granted women a constitutional right to abortion.

An Obama presidency

If Barack Obama becomes president, the most he could do is stand up to the conservative tide, which has been reshaping the nation's courts since Ronald Reagan and his attorney general, Edwin Meese III, perfected the art of vetting judicial candidates for ideological purity.

It is unlikely he could shift the court to the left, but he just might preserve the current, precarious balance.

That's because the next retirements will probably come from the court liberals. John Paul Stevens, 88, and Ruth Bader Ginsburg, 75, are the oldest justices.

Replace a liberal with a liberal, and not much changes. Replace a liberal with a conservative, and you get a significant shift.

Samuel Alito had only to replace a moderate, Sandra Day O'Connor, for the court to change.

Let me quickly add that these ideological labels don't fit snugly. I use them only to identify which justices I mean, as the same clumps of justices often wind up on either side of an ideological divide, with Anthony Kennedy in the middle.

Conservative movement

It is a measure of the success of the conservative legal movement that the judges we now call liberal used to be considered moderate.

None of the so-called liberals on the current bench are as willing to use judicial power as freely as their predecessors. There is no Earl Warren, Thurgood Marshall or William Brennan on the court now.

For example, Marshall and Brennan considered the death penalty unconstitutional, so they voted against it in every capital case that came before them.

Compare that with Stevens, who last term announced he believes the death penalty unconstitutional. Yet because of court precedent, he voted to allow lethal injections, anyway.

Look to the right if you want to find justices who are ideologically aggressive. Clarence Thomas doesn't blink at reversing settled precedent if he thinks it wrong, a position that even Scalia has said is radical.

'Original meaning'

As for Scalia, he claims he relies on the Constitution's "original meaning," or rather, his interpretation of it, making no room for changes in American life over the past two centuries.

If anyone still thinks that pure legal reasoning or any cohesive judicial philosophy dictates the outcome of cases, I have three words for you: Bush vs. Gore.

Nothing in the Constitution explains the votes of Scalia and four like-minded colleagues to reverse a Florida Supreme Court ruling on a matter of state law that stopped vote counting there and handed the 2000 presidential election to Bush.

It goes beyond that case. An exhaustive study of the court's decisions from 1994 to 2005 found activism on both ends of the ideological spectrum.

"All of the justices used their power of judicial review proactively and in ideologically predictable ways," wrote Lori A. Ringhand, a law professor and author of the study.

But when it comes to flexing judicial power, it isn't the liberals who are the more aggressive justices, Ringhand, who now teaches at the University of Georgia, said in a telephone interview.

"Now it's the justices we think of as conservative who are more likely to use the Constitution proactively," she said.

Should the next president even try to ratchet down the politicization of the federal bench? Should he appoint a moderate and forget about ideological purity?

Yes he should. But only if that the next president is John McCain.


Woolner is a Bloomberg news columnist.

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