John Leo
The future makeup of the Supreme Court hasn't caught on as a major issue in the presidential race. One reason is that the media combed through George W. Bush's judicial selections in Texas without finding much to complain about. (The media don't worry much about potential Democratic nominees -- all of them are presumed to be safe.)

Texas elects its judges, but Bush picked four state supreme court judges to fill unexpired terms. He went for the conventional categories of "diversity" -- one woman, one Hispanic-American, one judge who uses a wheelchair. All four said Bush hadn't asked their opinions on hot-button issues such as abortion and affirmative action. In a controversial case involving parental notification on abortion, three of the four Bush appointees voted to uphold a girl's desire to have the abortion without informing her parents.

"The (Bush appointees) have uniformly been chosen for quality. ... There has not been a litmus test. They are sort of middle-of-the-road on the court," said William Powers, the dean of the University of Texas Law School. Texas Lawyer analyzed the selections and came to the same conclusion.

All this is soothing to the left, but apt to cause some gas pains on the right. Bush is by temperament and political inclination a moderate who dislikes confrontation and likes to think of himself as a unifier.

Writing in The New Republic, Andrew Sullivan says he thinks Bush would pick moderate conservatives who would sail through committee hearings and bend this way and that way once on the court. Sullivan says: "These are exactly the kind of justices --David Souter, Anthony Kennedy, Sandra Day O'Connor -- who give conservative imprimaturs to such liberal landmark rulings as Roe vs. Wade and Romer vs. Evans." (Romer overturned a Colorado state constitutional amendment banning the creation of a legally protected category for gays.)

This is precisely the problem with Republican picks for the court. Before Clinton named Ruth Bader Ginsburg and Stephen Breyer, the Republicans had 10 straight selections, all explicitly chosen in the hope of turning the court away from making "landmark liberal rulings" that come out of the blue with no basis in the Constitution. They haven't.

John Leo

John Leo is editor of and a former contributing editor at U.S. News and World Report.

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