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Politics of Judicial Appointments

Margaret Warner speaks to two former Justice Department insiders about the potential impact of the presidential election on the judiciary.

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  • MARGARET WARNER:

    The nine Justices who took their seats at the U.S. Supreme Court this morning have been together for ten years. Longer than any previous modern court. With four of the Justices now over 70, the next president could well have the chance to name one or more new ones. In addition, there will be the chance to further shape or reshape the rest of the federal judiciary. President Bush has already appointed 201 appellate and district court judges in his first term, nearly one-quarter of the federal bench.

    For a look at the judicial stakes in this election, we're joined by two former Justice Department insiders. Theodore Olson was the solicitor general until last July, arguing the Bush administration's position before the Supreme Court. And Eleanor Acheson was assistant attorney general in the Clinton administration. Among other things, she was in charge of screening judicial nominations. Welcome to you both.

    Now, it seems to me we hear this every four years and every campaign, the future of the Supreme Court is at stake. It was said in the 2000 election President Bush has not had the chance to name anyone. How certain is the legal community, really, that there will be openings for the president to fill, Ms. Acheson?

  • ELEANOR ACHESON:

    Well, if one… if you consider that the same discussion was had about the same nine Justices as they advance, as we all advance in the aging process and the process of thinking about doing other things with their lives, I think that it is really pretty certain that in the next four years at least one and possibly more than one, possibly as many as four Justices may choose to leave the Supreme Court or have to for reasons beyond their control. Wishing no one ill health or worse, it does certainly look like we've come to the point where all of this talk — and there has been in at least two cycles — may truly come to pass. And it is very important.

  • MARGARET WARNER:

    And in terms of looking at the potential impact, does it matter, Mr. Olson, who retires? In other words… of course it also matters who's president but it matters who's being replaced, does it not?

  • THEODORE OLSON:

    Well, of course it does. There are only nine Justices and so one Justice's vote may make a difference. And it may be a Justice that has a more liberal streak or a more conservative or someone in the middle like Justice O'Connor. It could be a chief justice. Chief Justice Rehnquist has been on the court for 32 years. That's eight presidential terms, if I have my arithmetic right. The average tenure of these nine Justices on the court is eighteen and a half years, so that whoever leaves and whoever replaces the person who leaves can be expected to be on the court for a long time. That's a lot of important decisions affecting a lot of aspects of American life.

  • MARGARET WARNER:

    And would you say, Ms. Acheson, that also all these appointments to the lower federal courts which don't get a lot of attention in fact have a huge lasting legacy for a president?

  • ELEANOR ACHESON:

    They absolutely do. You know, one thing I think very few people understand is that the entire federal bench is only 870 some, 880 judges, the nine Supreme Court Justices and then 180 plus court appeals judges and the rest are federal trial court judges. And when you think about the number of opinions, the number of decisions that are made, Jan Crawford Greenburg just made the point that 1,800 – 1,200 or 1,800 sentencing decisions are made a week in the federal system.

    Well, beyond that, there are infinite… well, not infinite but many, many civil decisions and so forth. Some of those are appealed and then a very few number of those actually get to the Supreme Court. And most of those are public law cases, not that many of them are private law cases. And it's just extraordinary the impact that the lower court judges have, the trial court judges not just for their decisions but the impression that is made upon jurors and upon litigants, how the administration of justice is handled and then the courts of appeals.

  • MARGARET WARNER:

    Many of the courts of appeals are the last word –

  • ELEANOR ACHESON:

    They are.

  • MARGARET WARNER:

    — because the cases don't end up at the Supreme Court. So Theodore Olson, if you're looking at the issues that are really at stake that could be decided judicially and if a voter were trying to decide between the Kerry ticket and the Bush ticket, what are the issues that really are at stake?

  • THEODORE OLSON:

    Well, in the first….

  • MARGARET WARNER:

    Judicially.

  • THEODORE OLSON:

    One of the things that must be said is that most of the things that the Supreme Court does are relatively uncontroversial. A good percentage of the Supreme Court decisions every year are unanimous or 8-1, they have to do with bankruptcy laws or security laws or antitrust laws — all of those things. So we must bear that in mind. The things that you read about are the rights of the persons accused of crimes, privacy rights, people talk about abortion or marriage or children or child bearing or sexual relationships or contraception, environmental issues, things of that nature are the ones… or civil rights, the rights of people that are disadvantaged for one reason or another. Those are the types of cases that you hear about the most and those are the types of cases where the Justices tend to split on a 5-4, 6-3 margin from time to time based upon, you know, their own perspectives that they bring to the court. So those are the ones that I think that people need to be concerned about in connection with the Supreme Court appointments.

  • MARGARET WARNER:

    And how dramatically different would you think George Bush appointees would be from John Kerry appointees on issues like that?

  • THEODORE OLSON:

    Well, it's impossible to say and Justices have a way of deciding to be their own person when they get on the Supreme Court. Of the more liberal Justices — so-called liberal Justices on the court — over the last 50 years, many of them were appointed by Republican presidents: Justice Brennan on the present court, Justice Stevens, Justice Souter, Earl Warren and so forth. So you can't say how they're going to vote. But it does matter, you know, what people's ideas that… that they bring to the court do have an effect on their decisions.

  • MARGARET WARNER:

    What would you say is at stake? What would you add or subtract?

  • ELEANOR ACHESON:

    I would add to the list that Ted Olson just offered with which I would agree with everything he just said, but I would also add to this area of federal/state relations or let me put it this way — the role of Congress to legislate and for the protection of Americans, American workers, civil rights issues, over the rights of states. And this has been an issue which when academics talk about it, it sounds very dry as a federalism kind of issue. But implicated in that are actually critical protections that the Congress has passed like the Youth Gun Protection Act that was struck down, the federal law that prevented people….

  • MARGARET WARNER:

    Guns close to schools.

  • ELEANOR ACHESON:

    …from carrying guns close to schools. And one can go on and on. For a while this court was really changing the entire contours of the ability of Congress to legislate in that regard and those kinds of protections. So I would add that to the list. And without, you know, saying… because I don't know any more than Ted Olson does about how in the end it will all work out, but I do think that one can look at two things and come to the conclusion that appointments by President Bush to the Supreme Court would be very different than those by President Kerry.

    One is the no more Souters refrain that has come without missing a beat from some of the leaders of the Republican legal establishment which… and they do not mean by that more Ruth Ginsburgs. I think there's a strong and deep feeling that Justice Souter was not what they expected he would turn out to be and I think we can look at some of the very controversial… I think there are about ten of them appeals court nominees that the Democrats have stopped from becoming confirmed… from being confirmed by the Senate for the reasons that they believe these people are activists out of the mainstream.

  • MARGARET WARNER:

    This is what you hear, Theodore Olson, from partisans on the Democratic side, that if President Bush had the chance to name someone to the Supreme Court, it would be someone very ideological, very conservative, definitely anti-abortion. I know it's hard to predict, but do you think that's the case?

  • THEODORE OLSON:

    I think what the president has said over and over again, it's the judicial philosophy. He intends to appoint, if he has the opportunity, people that regard their role as judges to be limited to the role of judging and not take authority away from the executive branch or the authority that the Constitution grants to the legislature itself. When judges make laws, they become impossible to change through the legislature. When something's grafted on to the Constitution, the people's right to select representatives who will represent them in Congress is taken away.

  • MARGARET WARNER:

    But in practical terms, if you are a voter sitting out there, what would that mean for issues you care about?

  • THEODORE OLSON:

    Well, in the fist place, democracy. The fact that we have a representative government, the more things that you take off the table, the more prisons the judges decide to run, the more schools that they decide to run, the more things that judges decide to do elected representatives can't have an authority to change. That's one of the concerns. There should be a balance, and I think that's the point that President Bush has made. There should be that proper balance between the legislative, executive, and judicial role that the Constitution ordained. And too much power in judges is not good.

  • MARGARET WARNER:

    Very briefly. You've both been extremely reasonable here. But do you think the right to an abortion is at stake in this election?

  • ELEANOR ACHESON:

    I think it very well could be. I do not agree with my friend Ted Olson on what I think the president would do. I think it's pretty clear he would seek out appointees in the court who would be committed to….

  • MARGARET WARNER:

    Overturning "Roe V. Wade"?

  • ELEANOR ACHESON:

    Overturn "Roe versus Wade".

  • THEODORE OLSON:

    I think this is red meat that people throw out there: "Roe versus Wade," "Roe versus. Wade."

  • MARGARET WARNER:

    You mean both sides?

  • THEODORE OLSON:

    Well, I don't think so much on the one side because the court has dealt with that issue three or four times. I think that probably is not going to change no matter who gets appointed.

  • MARGARET WARNER:

    All right. We have to leave it there. Thank you both.

  • ELEANOR ACHESON:

    Thank you.