Elections Will Tip the Judicial Balance Clinton Judges Likely Would Increase Federal Power, While Dole Appointees Would Bolster State Power

By Abraham, Spencer | The Christian Science Monitor, October 11, 1996 | Go to article overview

Elections Will Tip the Judicial Balance Clinton Judges Likely Would Increase Federal Power, While Dole Appointees Would Bolster State Power


Abraham, Spencer, The Christian Science Monitor


Amid the debate over economics, drugs, and foreign affairs, voters should not overlook the impact the presidential and senatorial elections will have on the federal judiciary. The voters' decisions will determine the philosophical direction of the federal bench, which will in turn have far-reaching consequences for numerous policy issues and the shape of our federal system.

The next president - with the advice and consent of the Senate - will shape the federal judiciary. Roughly 180 district judges and 60 circuit judges will be eligible for "senior status" - essentially retirement - before 2001. That is about one quarter of total judgeships. Because the district and circuit court benches now are approximately two-thirds filled by Republican appointees, the next president will tip the balance.

Significant turnover is also expected in the Supreme Court. Rumors are that as many as three justices may retire within the next four years. Taken together, these vacancies would allow President Dole to prevent the reemergence of liberal judicial activism and solidify the current 5 to 4 majority, or allow President Clinton to replace it with a more activist 6 to 3 liberal majority. The courts' new makeup will affect a number of high-profile issues such as welfare reform. Congress recently devolved control over welfare policy particulars to the states. The courts have not yet significantly intervened. But Clinton appointees are more likely to undermine reforms by holding that they violate recipients' constitutional rights. Liberal groups frequently sue to block welfare reforms. In C.K. v. Shalala, advocacy groups argued that New Jersey's "family cap," limiting payments to welfare mothers who have additional children, violated recipients' "right to procreate." Similar challenges face states enacting family caps under recent reform legislation. Federal work requirements and time limits on benefits likewise face challenges for supposedly discriminating against children of noncomplying parents. Spread of lawsuits Defending these lawsuits will be costly regardless of their outcome. But the suits are more likely to succeed and spread under a Clinton-appointed judiciary than under a Dole one. Furthermore, the Unfunded Mandates Reform Act and the repeal of federal speed limits have devolved federal power. A sharply divided Supreme Court has also taken tentative devolutionary steps, limiting federal legislative power in US v. Lopez and embracing a robust conception of state sovereignty in Seminole Tribe of Florida v. Florida. Such moves toward greater state power would fare less well in a Clinton- than a Dole-influenced judiciary. Responding to voter interest and concern, state legislatures have begun addressing the "right to die" issue. …

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