SUPREME COURT: NYT Profiles Candidates’ Possible Picks

      Sunday's New York Times Magazine features an article by George Washington University Law School professor Jeffrey Rosen examining the impact of the presidential election on the future make-up of the Supreme Court and profiling two potential nominees who may represent the archetypal justices nominated by presidential candidates Texas Gov. George W. Bush (R) or Vice President Al Gore. Both Bush and Gore have "said little" about their "vision" for the court and "dance[d] around the one question that has obsessed presidential candidates since 1980" -- whether to overturn Roe v. Wade. Six Supreme Court justices uphold the "core principle" of Roe v. Wade -- that abortions cannot be banned before fetal viability -- while three others follow Justice Antonin Scalia's affirmation that the decision "must be overruled." To overturn the decision, Bush would need to replace two Roe-supporting justices with two "committed anti-Roe" justices. However, Rosen comments, given the "uncertainties of Supreme Court retirements, he may not have this opportunity." The potential to outlaw abortion is further hampered by the fact that some state legislatures would not choose to place further restrictions on the procedure, leading Rosen to conclude that "overturning Roe wouldn't lead to a nationwide ban on abortion." However, even if the next president appoints only one justice, the "stakes in November's election are high."

Two Models of the Candidates' Choices
      Rosen spotlights Virginia Appellate Judge Michael Luttig, a "leading candidate" for a Supreme Court appointment under a Bush presidency, and Washington, D.C., Appellate Judge David Tatel, who is "similarly well regarded by the Gore camp." Rosen outlines the two judges' views on the amount of power the federal government should exercise, concluding that while "Bush judges are likely to question the scope of federal power," it "seems probable that Gore justices ... would share a distaste for sweeping exercises of judicial power and a reluctance to strike down federal laws in the name of states' rights." For example, Tatel's views "suggest that he would be more inclined than a judge like Luttig to recognize a constitutional right to personal autonomy, which isn't found explicitly in the Constitution." The extent to which Tatel would interpret this right, however, "is impossible to say," and he "seems no more likely to engage in a freewheeling Roe v. Wade-style expansion of the right to privacy than Justices Ginsburg or Breyer." Rosen concludes, "This election ... will determine whether or not the premise of the New Deal -- that federal power is essentially unlimited -- will remain in force in the 21st century" (Rosen, New York Times, 10/22).