Editorial: Next President's Appointments

Presidents can have their deepest and most lasting impact on American society through their appointments to the federal courts - and, more specifically, to the U.S. Supreme Court.

Presidents select Supreme Court justices as well as federal judges to the appellate and trial courts. Jurists who get approved enjoy lifetime tenure and almost unfettered freedom to rule on a wide range of issues that shape public policy and impact the lives of American citizens long after the president who appointed them is gone.

That's one reason the stakes are so high in November's presidential election.

Voters will have a clear choice between presumptive Democratic nominee Sen. Barack Obama and Republican Sen. John McCain on the issue of the courts.

The backdrop to their decision will be President Bush's imprint on America's justice system. Bush has used his two terms in office to reshape the federal courts by installing dozens of conservative jurists.

Just weeks after taking office in 2001, Bush removed the American Bar Association from the judicial-screening process, ending its half-century role of reviewing candidates' credentials for nomination. Instead, Bush has followed the advice of the office of the counsel to the president, which comprises mainly members of the Federalist Society - an organization devoted to advancing a conservative agenda through the legal system.

The search for conservative thinkers helped Bush tilt the Supreme Court to the right through the appointments of Chief Justice John G. Roberts, 53, and Associate Justice Samuel Alito Jr., 57. As the two youngest justices, Roberts and Alito could shape the court for a generation. And Clarence Thomas just turned 60.

Currently, the high court is deeply divided, as seen by its frequent 5-4 decisions. But the next president will likely have an opportunity to leave an impressive mark on the court, too.

Six of the current nine justices are more than 68 years old. John Paul Stevens, 88, and Ruth Bader Ginsburg, 75, two of the more-liberal justices, could retire soon.

During a recent forum at Pastor Rick Warren's Saddleback Church in Orange County, Calif., both Obama and McCain shed some light on the types of judges they might appoint if elected.

Obama said he would not have nominated Thomas to the bench because he didn't think Thomas was "a strong-enough jurist or legal thinker." Obama, a former constitutional law professor, said he also disagreed with Thomas' "interpretation of a lot of the Constitution."

Obama added that neither would he have nominated Antonin Scalia because he also disagrees with the justice on many legal matters.

McCain said that, "with all due respect," he would not have nominated Justices Stephen Breyer, David Souter, Ginsburg or Stevens.

The Republican candidate added that appointments to the Supreme Court and federal bench "should be based on the criteria of proven record, of strictly adhering to the Constitution" and "not legislating from the bench."

McCain has gone out of his way recently to sound more like Bush when it comes to appointing conservative judges. He has promised to nominate justices in the mold of Roberts and Alito, both Bush appointees.

Voters then could expect a McCain presidency to shift the court further to the right, if its more-liberal justices retired - while an Obama presidency would more likely maintain the current divide, since the Democrat would likely replace the liberal judges with like-minded thinkers.

McCain also provided some insight into his possible judicial appointments in a speech at Wake Forest University in which he criticized "activist judges."

He apparently wanted to reassure conservatives still upset with him for joining with other Republicans and Democrats in 2005, as the so-called Gang of 14, to break a deadlock on federal appeals-court nominations.

Obama has explained his opposition to confirming Roberts and Alito by expressing his belief that deciding "truly difficult" cases requires "the critical ingredient" that is "supplied by what is in the judge's heart." Critics say such a statement is a clear indication that Obama wants activist judges who shape policy from the bench.

Obama has promised to "make preserving women's rights under

Roe v. Wade

a priority as president." While McCain says he will be a "pro-life" president.

On that issue alone, voters can see the philosophical divide between Obama and McCain. After eight years of the conservative activism exerted by the Bush Supreme Court, many Americans would welcome a change.