It's a prospect that has fired up both sides of the political spectrum, with Senate Judiciary Chairman Sen. Orrin Hatch, R-Utah, recently warning supporters of President Bush's re-election about the ramifications of a Nov. 2 victory by Democratic challenger Sen. John Kerry.
"If John Kerry gets elected, he will own the Supreme Court in the next four to eight years," Hatch told Utah delegates to the Republican National Convention in New York City last month. "And if that happens, everything you and I hold near and dear will probably be changed by an activist Supreme Court that will pass legislation from the bench that the Democrats could never get enacted through elected representatives."
One of the few members of Congress to focus on the future of the high court in this election, Hatch opened a speech last Friday to the national conference of the Christian Coalition with a verse from Psalms and a warning that "liberty itself is at stake" in the selection of new judges to federal courts.
Fueling the rhetoric is the likely retirement of Chief Justice William Rehnquist, who turns 80 this week, and possibly Associate Justices Sandra Day O'Connor and John Paul Stevens. A record-setting 10 years have passed since the latest vacancy was filled on the nine-member bench, with Justice Stephen Breyer's confirmation in 1994.
"The 5-4 margins that decide many cases means a single vote or two could change the shape of constitutional law dramatically for decades," former Reagan staffer Bruce Fein said Monday during a discussion on the Supreme Court and the election at the National Press Club.
Despite the profound impact such changes could have on issues such as environmental protection, reproductive rights and the separation of church and state, both the Kerry and Bush campaigns have yet to expound on their views about reshaping the high court.
"One of the problems is the future of the Supreme Court doesn't lend itself to the kind of chatter that goes on in cable television news," which helps steer daily messages of the campaigns, said Nan Aaron of the left-leaning Alliance For Justice.
Instead, voters hear court-packing rhetoric through "gutter politics," said President Clinton's former chief of staff John Podesta. In reality, Podesta believes Kerry would "more likely be nominating moderates than crusading liberals" while Bush would pick ultra- conservative nominees to "throw red meat to his right-wing base."
Conservative strategist Grover Norquist said the steady erosion of Democratic majority control in Congress and state legislatures makes the future of the Supreme Court the minority party's battle for survival.
"The Supreme Court is the one place where the active ingredients of the left still have a shot at winning," said Norquist.
And the nominees are . . .
* Here are some potential candidates for anticipated future vacancies on the U.S. Supreme Court, according to legal pundits, published reports and political consultants:
* If Bush wins:
Two 4th Circuit Court of Appeals judges from Virginia, J. Michael Luttig and J. Harvie Wilkinson III, are frequently mentioned by conservatives as likely contenders. White House Counsel Alberto Gonzales was considered a front-runner until his memo downplaying Geneva Convention prohibitions on torturing prisoners of war became an embarrassment for the administration.
* If Kerry wins:
Former Clinton administration Deputy Attorney General Jamie Gorelick, who served most recently on the 9-11 commission, and her former aide, D.C. Circuit Court Judge Merrick Garland, are on Democrats' wish lists. Others include former Detroit mayor and Michigan Supreme Court Judge Dennis Archer, the first person of color to be president of the American Bar Association.


