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Polar opposites

"Polar opposites" Continued...

Issue: "Not over till it's over," Nov. 1, 2008

McCain called the decision "a victory for those who cherish the sanctity of life and integrity of the judiciary."

Like a dime balanced on its edge, the current Supreme Court could fall either way on abortion. With four conservative votes (Roberts, Scalia, Alito, and Thomas) and four reliably liberal ones (Ginsburg, Breyer, Stevens, and Souter), Justice Anthony Kennedy has often proved the swing vote. On partial-birth abortion, Roberts leaned conservative, but on the rest of the abortion issue, he is in some ways a cipher. In a first Obama term what's likely is that he would replace the two oldest members of the court-the reliably liberal John Paul Stevens, 88, and Ruth Bader Ginsberg, 75. However, a two-term Obama presidency could shift the court to the left in two ways.

First, the Illinois senator has indicated he will appoint justices in the mold of Ginsburg, who supports abortion until the last term of pregnancy. Second, Obama has pledged that his first act as president will be to sign the Freedom of Choice Act (FOCA), which would enshrine elective abortion in law and undo every state restriction of abortion. If conservatives challenge FOCA in federal court and lose, the effect would be that of an Über-Roe, brushing aside even the right of states to regulate abortion.

While Supreme Court appointments are critical in this election, some argue that more hinges on the next president's power to make lifetime appointments to the lower federal bench. On the judicial food chain just below the high court are 12 federal courts of appeal, each with jurisdiction over a specific geographical region. These are the courts of last resort for more than 99 percent of all federal cases, issuing decisions in about 50,000 cases annually, while the Supreme Court issues only about 80.

"These courts are very balanced right now," Calabresi said. "Some have a one-judge conservative majority and others a one-judge liberal majority. If Obama wins, I think it is fair to say that he could . . . flip us from having a kind of muddled, moderately-to-the-left legal system to having a decidedly left-wing legal system."

On the record

Obama

• Will appoint Supreme Court Justices in the mold of Associate Justice Ruth Bader Ginsburg

• Has said federal judges should rule with empathy toward the weak, less fortunate, or historically disenfranchised

• Has led Democratic efforts in the Senate to oppose President Bush's judicial nominees on ideological grounds, including sitting Supreme Court justices John Roberts and Samuel Alito

McCain

• Will appoint Supreme Court Justices in the mold of Chief Justice John Roberts

• Believes the role of judges is not to impose their own view as to the best policy choices for society but to apply to cases at bar the democratically determined policy choices already embodied in the law

• Voted to confirm sitting Clinton Supreme Court nominees Ruth Bader Ginsburg and Stephen Breyer

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