What’s more, both liberal and conservative groups are now trying to energize their supporters by arguing that this election could reshape the court for decades to come. For our own discussion of what’s at stake for the court in this Presidential campaign, we turn to Stuart Taylor, legal affairs correspondent for National Journal and Newsweek, and author of last week’s Newsweek cover story on this issue; Anthony Lewis, a columnist with the New York Times; C. Boyden Gray, former White House counsel in the Bush administration, now in private practice in Washington; and Ralph Neas, People for the American Way and author of a 75-page report on this topic called "Courting Disaster."

Welcome, gentlemen. Ralph Neas, in this report, you wrote that the court is just one or two votes away from can your tailing fundamental rights that millions of Americans take for granted. Is there really that much at stake in this election?

RALPH NEAS, People for the American Way: There really is. Every American, Republican or Democrat, should know that this is the most important issue the Supreme Court in the most important national election since 1932. Because of age or health or because this is really the first time in 130 years that we’ve gone six years without a Supreme Court appointment, there could be one or two or three Supreme Court justices. And what our report,, "Courting Disaster" shows is that there are a hundred precedents that could be overturned if there is one or two more right-wing Supreme Court Justices like Clarence Thomas or Antonin Scalia. That’s an enormous amount at stake.

MARGARET WARNER: Do you see it, the stakes that high, Boyden Gray?

C. BOYDEN GRAY: Well, I wouldn’t accept the characterization that Ralph places on right-wing judges and the like. But do I think it’s an important election, and there are some important issues at stake that are coming up in the Supreme Court that are razor-edged, 5-4 cases, so it’s an important election, but I can’t accept the right-wing rhetoric.

MARGARET WARNER: Stuart, we hear this is a rallying cry before almost every election, particularly from Democrats, but also from often religious conservatives. Is it really that different this time? And if so, why?

STUART TAYLOR, National Journal/Newsweek: I’m not sure it’s dramatically different. I’m not sure this is going to be the thing that swings the election, but in a very close election, it could tip things, it could tip some important voters one way or another, particularly because the Supreme Court is now, as it was in 1987, when Judge Robert Bork was nominated and defeated, it’s right at a point where there are four votes leaning this way to the liberal side, four to the conservative side on a lot of issues and a one-vote switch could have a big effect, affirmative action being an example.

MARGARET WARNER: Well, get a little more specific. What issues do you think — just choose two or three — where you think the balance is really so close that one or two appointments, or one appointment one way or another would make that big a difference?

STUART TAYLOR: Well, I think there are at least three. Affirmative action, I think a more liberal court would basically say racial preference is forever, fine with us. A more conservative court, by one vote, might just obliterate racial preferences. Religion, on aid to religious schools, tuition vouchers, a more liberal court would probably strike them down. A more conservative court would probably uphold them. Federalism, the state states’ rights issues we’ve heard so much about that are kind of elusive to the public, a more liberal court would overrule the entire line of decisions the Rehnquist court has been laying down. And abortion, certainly a more conservative court would reverse this partial-birth abortion decision last week.

One thing that I think is interesting about this is that it has clearly been Mr. Gore who has taken the offensive on this issue and Bush who has been on the defensive. You might wonder why, because, as I read the polls and the court’s decisions, the current Supreme Court is considerably more liberal than the public on abortion, on affirmative action, on religion, and maybe on gay rights. I don’t think there is much opinion on federalism, but if you want to figure, well, is the court going to go farther in the direction that they are already a little out of sync with the public, that’s if you elect Mr. Gore from one perspective.

MARGARET WARNER: All right, Tony Lewis, weigh in here. One, how do see the stakes? And how do you explain the fact that, as Stuart points out, Al Gore talks about this a lot more than George Bush?

MARGARET WARNER: All right, Tony Lewis, weigh in here. One, how do see the stakes? And how do you explain the fact that, as Stuart points out, Al Gore talks about this a lot more than George Bush?

ANTHONY LEWIS: Because I think he needs to energize his voters to take your second question first Margaret, and his voters are a women, for example, on the abortion issue and Democrats and liberals on the other issues that Stuart correctly mentioned. I want to say something that may seem a bit old-fashioned or naive here, and I don’t disagree at all with what the others have said. I think it is an election issue, and I think it does matter a lot. But I feel uncomfortable talking about the Supreme Court in these terms. I like to think of judges as not people you line up, left, right, center in that way, and I like to think of judges as people who are just dedicated to trying to do their best to determine the law and read the Constitution to the best of their ability. I know that seems, as I say, naive, maybe Stuart agrees with me, but I’m made comfortable by this politicization of appointments.

MARGARET WARNER: And Boyden Gray, it’s certainly true, is it not, that these appointments that presidents often don’t get to reshape the court as they hoped?

C. BOYDEN GRAY: Well, appointees frequently fool their appointers, and Justice Oliver Wendell Holmes was one of the best examples. He didn’t do what President Roosevelt thought he would do and wanted him to do. But I think it’s also true what Tony Lewis said, that you shouldn’t apply a litmus test, and most Presidents haven’t. Vice President Gore is coming very close to demanding or saying he’s going to demand a litmus test on a couple of issues of potential nominees. That is a very dangerous precedent, I believe, and a very bad thing for him to be doing. Governor Bush has made clear he’s going to look for philosophy, but he’s not going to look to individual issues, and I think it’s a very dangerous thing. And I would agree, although not always with Tony, just on this issue, I agree judges should be put on the court to do their very, very best. You hope that they’ll follow your general philosophy, but on specific cases, that’s I think a no-no.

RALPH NEAS: I think we all feel precisely the same way as Anthony Lewis. Unfortunately, history, history going back 225 years just hasn’t been that way. Ronald Reagan politicized the court back in 1987 and 1986. This year the right wing has politicized it first, and of course they worked out something apparently with George W. Bush. They made it a big issue for the last two years. George W. Bush has said he’s going to put as his models Clarence Thomas and Anthony Scalia on the court. Unfortunately it has been politicized too much, then you do have to take a stand. If you think someone is going to go on the Supreme Court that would be a disaster, that would overturn Roe v. Wade, that would overturn the environmental laws, the Voting Rights Act, privacy, campaign finance reform, all the things that "Courting Disaster" shows, then you do have to speak out on it and it does become a election year issue.

MARGARET WARNER: How do you see this politicization issue, and is it more intense now?

STUART TAYLOR: Oh, I think it gets more intense all the time and I agree with Tony that it’s regrettable. I think really the court has politicized itself. On more and more issues what the court is doing, and in particular what it’s doing that overalls other branches of government, when they strike down acts of Congress, when they strike down acts of legislatures, when they tell a school board, you can’t do that, when they tell the president you can’t do, that t are making policy in areas where the Constitution says very little or nothing. Abortion, for example, the Constitution says nothing about abortion. The Roe v. Wade was sort of conjured up out of very general phrases and was recorded, even by most liberal scholars like Archibald Cox at the time, John Harvey Link – just to name two Harvard scholars as kind of made-up constitutional law.

MARGARET WARNER: Defining the right to privacy.

STUART TAYLOR: If you’re going to start legislating from the bench, you can hardly expect that the people who usually like to think they should have a say in legislation are going to think they should have a say in what you do.

ANTHONY LEWIS: Margaret, may I say a word here?

MARGARET WARNER: Yes, Tony?

ANTHONY LEWIS: Stuart, whoa — you make it sound as though only the present Supreme Court and only the liberal minority on the court were doing what you say. Why, that’s been that way since day one on the Supreme Court. It’s in the nature of the job. They have this enormous power, a power that I think has been used on the whole for good and has kept this country together and really given us what has been the model for the world, constitutionalism, a court that will defend individual rights even against the government. But of course they overstep. The irony is that today, with a usually conservative court, it is holding more federal statutes unconstitutional than any other recent court, maybe than any court in history. You wrote that yourself in the "National Journal," Stuart.

STUART TAYLOR: That’s quite right.

ANTHONY LEWIS: It’s not quite as, shall I say, new as you suggest.

STUART TAYLOR: There’s an argument here, and I agree, conservatives and liberals both play this game, and you can debate which of them play it more or worse or for longer and in which era of history. But for example, there’s a whole argument about whether the reason they’re striking down federal statutes so fast now is because the court has suddenly gone nuts or because Congress has gone nuts. And there’s an argument to be made either way. Justice Antonin Scalia makes the argument that Congress has gone nuts very well.

MARGARET WARNER: Let’s go back just to this unpredictability because I don’t want to leave people with the impression that we think necessarily that presidents can really reshape the court. Boyden Gray, you’ve been involved in decisions like this. As Gary Bauer, the conservative activist pointed out, four justices that voted to invalidate date that Texas school prayer before football games case were Republican appointees. Aren’t there a lot of other factors that go in to the naming of an appointee that often a president doesn’t choose someone id logically pure?

C. BOYDEN GRAY: Well, it’s impossible in the political context in which we live, given the realities of the confirmation processes, to pick someone who’s ideologically pure. But I do think presidents can get the direction right, more or less. And that is I think a valid point. And I think that is at stake in this election. It’s a general philosophical point about the role, the central role that a government should play. Are you for big government, or are you not? Or are you for the Congress overreaching, or are you for saying, "Gee whiz, you’re really meddling too much in the affair fairs of a state sovereignty." Are you going to say parents cannot have a choice, if they’re poor and not wealthy, but if they’re poor, are you going to say they do not have the choice to send their children to a parochial school with money that they choose to spend, not with money that the state is spending? Those are fundamental issues. Those are issues that can be affected by a president. You get individual cases, antitrust this or regulatory that, and a president’s going to get fooled maybe, but directionally and generally, I think a president can shape. And that’s not bad either because are. And that’s not bad because, at the end of the day, we are a democracy and the court should be responsive, indirectly in any event vent to the democracy.

MARGARET WARNER: Ralph Neas wanted to get back in here. Go ahead.

RALPH NEAS: Absolutely. We really should know that over the last 50 years, over 70 percent of the justices have been Republican. We’ve basically had conservative people. It’s been a bipartisan consensus. But it’s important also to note that the rallying cry of the right, whether it’s Senator Orrin Hatch or whether it’s Jerry Falwell or Pat Robertson, "No more David Souters." David Souter was the miracle of the Bush administration. Somehow he got on and we all owe Warren Rudman a great debt of gratitude. But there will be not be any David Souters in this happen in the year 2000 and the right wing does get control of all three branches of government. That will never happen again.

MARGARET WARNER: All right. Tony Lewis, you wanted back in.

ANTHONY LEWIS: Well, I wanted to say that there is one big change which makes it harder to have the kind of disinterested judge that we’re used to — that used to exist and that is that there are interest groups now vetting very closely who is nominated. I mean back when, you know, Boyden gray mentioned Holmes. When teddy Roosevelt appointed Holmes, he wanted him to be sound on antitrust to degree had with him and the first Holmes did was to dissent in an antitrust case and Roosevelt wrote a letter saying, "I’ve seen more backbone in a banana." Well, today, you would pretty much know what Holmes was going to do on an antitrust case because there are people like Ralph Neas know what those people are going to do.

MARGARET WARNER: And that’s really changed things, hasn’t it, Stuart?

STUART TAYLOR: Well, I’d like to point out that Ronald Reagan added three members of the court and two of them have voted to keep Roe v. Wade. George bush added two members of the court and one of them has voted to keep row versus way. So I think Ralph would have told us in 1981, if you let these Republican pick Supreme Court justices, Roe v. Wade is gone. But three out of the five chosen by those two have gone the other way. Now, I don’t think it’s because they surprised Reagan and Bush. I think it’s because, for various reasons, the first Reagan appointee was Sandra Day O’Connor. His priority was not going to get be somebody who was going to be anti-row versus way. It was to get a very qualified woman. When Anthony Kennedy, who’s also pro-Roe, was nominated, Robert Bork has just been defeated… Douglas Ginsburg had just had to withdraw. They needed someone who could get confirmed, and much the same was true and Boyden knows a lot more about this than I do, when David Souter was chosen.

MARGARET WARNER: Briefly, Ralph Neas, pollsters say to most voters this is not a big voting issue. Does it really matter to average voters?

RALPH NEAS: I’m not sure where you’re getting that polling information much of the field polling out of California said this was the second most important issue statewide in California — the Newsweek poll said last week said that 73 percent of Americans think that the Supreme Court is somewhat important or very important. This is by the way the first time this has ever happened in the national election time. So I think things have changed and they know what’s at stake, they know what the Supreme Court can do in their lives, their kids lives and their grandkids.

MARGARET WARNER: Quite reply, Stuart. Do you think voters care?

STUART TAYLOR: I think some care and some don’t and how it gets spun by the candidates will have a lot to do with how what effect it has on the election and how it gets spun by the press.

MARGARET WARNER: Thank you all four very much.

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