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How Will Supreme Court Look?

John McCain calls the future shape of the federal judiciary "one of the defining issues of this presidential election," a point underscored by the recent spate of 5-4 Supreme Court decisions.

This area also provides one of the starkest contrasts between Mr. McCain and Barack Obama. A McCain victory in November almost certainly would enable conservatives to tighten their grip on the court and extend their influence to such issues as curbing or barring legalized abortions.

By contrast, an Obama triumph likely would put a brake on that process, though it probably wouldn't permit a return to the liberal control that marked the high court through much of the second half of the last century.

The reason is that the justices most likely to be replaced in the next four years are members of the court's liberal bloc. Mr. Obama would be unable to shift the court to the left, but Mr. McCain could move it even further to the right.

In a recent speech, Mr. McCain joined the outcry against judicial activism, ironic since Republican domination of the White House the past few decades means its appointees dominate the federal courts, including seven of the nine Supreme Court justices.

That court's two oldest members are pillars of its liberal bloc, Justice John Paul Stevens, an appointee of Republican President Gerald Ford, and Ruth Bader Ginsburg, a Bill Clinton appointee.

Mr. Stevens will be 89 in April, and Mrs. Ginsburg, who has suffered some poor health, will be 76 in March. Many court watchers believe the election of a Democratic president might prompt them to step down and permit the selection of successors with similar ideological views.

Still, that would only maintain the court's current balance, which basically has four conservatives, four liberals and one moderate conservative, Anthony Kennedy, who often tilts the balance.

Mr. McCain made it pretty clear he would tip the court even further to the right when he cited as judicial exemplars two conservative George W. Bush appointees, Chief Justice John Roberts and Associate Justice Samuel Alito. Mr. Obama voted against confirming both.

To be sure, there are limits on any president's ability to change the court's direction.

For one thing, justices sometimes vote differently from what nominating presidents expect. Witness the generally liberal record of David Souter, named by the first President Bush.

But the early track record of Justices Roberts and Alito indicate the second President Bush fulfilled his 2000 campaign vow to name justices like the court's more senior conservatives, Antonin Scalia and Clarence Thomas.

Second, it's unrealistic to expect any president to be able to name more than two Supreme Court justices in a single four-year term. The last one to do so was Richard Nixon, who filled four vacancies in his first term, in part because of the heavy-handed and ultimately unsuccessful way President Lyndon Johnson tried to install longtime crony Abe Fortas as chief justice after deciding against seeking re-election.

Fewer appointees are more likely to be the rule. Ronald Reagan picked only three justices in his eight years. Mr. Clinton and George W. Bush each named two in eight years. Jimmy Carter served a full term without naming any.

Third, nominees must pass muster with the Senate, which is likely to be more Democratic next year than it is today. That could force a President McCain to pick someone less conservative.

But it may not take more than one additional conservative justice to achieve the longtime No. 1 conservative goal of overturning Roe vs. Wade, the court's 1973 decision that legalized abortion nationwide.

That's something that should be of special concern to those moderate and liberal women who, upset by Mr. Obama's defeat of Hillary Clinton in the Democratic primary, talk of voting in November for Mr. McCain.

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