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By Amy Dominello, Media General News Service

Published: August 9, 2008

Part 4 of 5

WASHINGTON — A president stays in office four or eight years, but his appointments to the Supreme Court can extend his impact for decades.

It's likely that Republican John McCain or Democrat Barack Obama will be able to appoint one — and possibly three — justices to the court during his time in the White House.

The ideological makeup of the court today is split very narrowly. Even one appointment could dramatically affect its direction.

"It only takes one because the court is very, very closely divided," said Kathryn Kolbert, president of People for the American Way, a liberal advocacy group that focuses on constitutional liberties.

And it's not just the Supreme Court. The next president will exert his influence through the nomination of hundreds of judges to lower federal courts.

Observers of the Supreme Court say several divisive issues will likely come before the court in the next five years: gay rights, abortion, gun control, privacy and civil liberties in the age of terrorism.

But who becomes the next justice could vary widely, depending on who sits in the Oval Office.

Here's a look at what each candidate has said.

John McCain

McCain said in May that the courts have become "one of the defining issues of this presidential election" because "the choices we make will reach far into the future."

He and Obama differ, McCain said, in their views on the limits of judicial power.

McCain believes that judges should strictly interpret laws as written and not impose their own views or experiences when making decisions.

McCain said judges should not indulge in "judicial activism," particularly in controversial cases that deal with politically charged issues like abortion or gay rights. Decisions on those subjects should rest on the shoulders of state legislatures and voters — not courts, McCain said.

McCain has said federal judges have been guilty of "systematic abuse" of the federal court system.

"My nominees will understand that there are clear limits to the scope of judicial power and clear limits to the scope of federal power," he said.

McCain has formed a justice advisory committee filled with conservative legal minds to provide input on his court appointments. He has said his role models for judicial nominees are Chief Justice John Roberts, Justice Samuel Alito and the late Justice William Rehnquist. Those justices have practiced narrow interpretations of the law.

As did many Republicans, McCain voted to confirm President Clinton's appointees that are now on the bench — Ruth Bader Ginsburg and Stephen Breyer. McCain said he did so because the judges were competent and he did not want to play politics with the nominations.

But conservatives are hopeful that McCain Supreme Court nominees would move the nation's highest court to the right.

"If John McCain were elected, it would help further the transformation of the court into one that practices judicial restraint," said Ed Whelan, a former law clerk for Justice Antonin Scalia. Whelan is president of the Ethics and Public Policy Center, a conservative think tank.

McCain would, however, face trouble getting his nominees through what likely will continue to be a Democratic Senate.

"[The Senate] is not going to let a Republican president move the court any further to the right than it is," said Michael Gerhardt, a constitutional law professor at the University of North Carolina.

But a change of even one justice would encourage those seeking a new direction on controversial issues.

"They'll be looking for a new court to change course," said Kolbert, who argued a 1992 case for Planned Parenthood before the Supreme Court that upheld abortion rights.

Barack Obama

Obama has not been as outspoken as McCain about judicial nominees, but it's clear the two have quite different views.

During Senate confirmation hearings, Obama voted against confirming two of McCain's judicial role models — Roberts and Alito.

In May, Obama told CNN that he considered Justices Breyer, Ginsburg and David Souter to be sensible judges. Obama has also spoken highly of Chief Justice Earl Warren, who led the court in the 1950s and 1960s.

"I want people on the bench who have enough empathy, enough feeling, for what ordinary people are going through," he told reporters, responding to McCain's May speech on the courts.

Obama has said judicial decisions should be based on evidence and fact — but sometimes legal process alone cannot lead a judge to a decision.

After he voted against Roberts' confirmation in 2005, Obama said some court cases "can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works and the depth and breadth of one's empathy."

Obama, a lawyer who has taught constitutional law, said that while he felt Roberts was highly qualified, his record gave no indication that he viewed the law the same way as Obama.

Kolbert said an Obama nominee would realize that the Constitution is not "frozen in time."

"His justices would be committed to the viewpoint of opportunity for all," she said.

But McCain and other conservatives view that as judicial activism.

"Judges don't have willy-nilly authority to make things up," Whelan said. "They need to have a clear warrant in the Constitution."

Contact Amy Dominello at adominello@mediageneral.com.

Capsules of major Supreme Court decisions and a list of current justices accompany this report.

Coming Sunday: The Economy

Reader reaction to this series on the presidential nominees is welcome. Send a letter to Your Voice, or blog on Let's Talk Politics. Links to both sites are here at www.hickoryrecord.com.>

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