Legal Affairs: Kerry's Even Keel

[Quetzal]

Kerry's Even Keel

IN 2000, MANY OF US THOUGHT THAT THE OUTCOME of the election would determine the composition of the Supreme Court. It turned out to be the other way around. The court decided the election, and President Bush has had no chance to affect the court. Whoever is elected in 2004, though, can confidently expect to make three or even four Supreme Court appointments in his first term.

It would be much better, for the law and for the country, if John Kerry, and not George W. Bush, made those appointments. The reason lies in a dynamic that has shaped the two parties' attitudes toward the courts for a generation, and which has been responsible for the intense unpleasantness that has come to dominate the appointments process for the federal judiciary. The Republicans have an agenda for the federal courts, including the Supreme Court. The Democrats do not.

What's the evidence? For one thing, Bill Clinton's two appointments to the court, Ruth Bader Ginsburg and Stephen Breyer, are nonideological judges whose voting records are not very different from those of two moderate Republicans on the court, John Paul Stevens and David Souter. Beyond that, the issues that the Democratic Party most cares about these days—jobs, health care, helping the middle and working classes overcome economic dislocations, protecting Social Security and Medicare—are not ones about which the courts can do very much. (The one big exception, to which I'll return shortly, is reproductive choice.) Many of the hot-button Republican issues, though—cutting back on the regulation of business, for example, and promoting religion in public life—are very much matters through which the courts can further the Republican cause.

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Kerry's Even Keel