IN THE SECOND DEBATE, an issue of obvious importance finally came up, in a question put to President Bush: "If there were a vacancy in the Supreme Court and you had the opportunity to fill that position today, who do you choose and why?" The question was smartly asked, not least because it began with that word "if."
There hasn't been a Supreme Court vacancy since Justice Harry Blackmun stepped down in 1994. The court's vacancy drought, if it extends through 2006, will surpass the longest, recorded 180 years ago when a smaller court went almost 12 years with the same cast.
There are reasons to think that vacancies will occur soon. The three oldest justices are the chief, William Rehnquist, who just turned 80, John Paul Stevens, 84, and Sandra Day O'Connor, 74. They also have served the longest--33, 29, and 23, years, respectively. Only 26 (out of 108 justices) served as many as 23 years, 14 as many as 29 years, and 8 as many as 33 years. Justices are not immortal. Yet justices today do tend to live longer than their predecessors and also to stay longer on the job. Modern medicine helps explain the tendency. But the power today's justices wield--expanded well beyond the framers' intentions--also may be very hard for them to give up. Partly on account of its assertiveness (not to mention its hubris) and partly on account of the growth of government generally, the court now plays a far more central role in the life of the country. Recall Bush v. Gore, which merely settled a contested presidential election. Or consider from this June the trio of cases in which the court, rejecting administration arguments, ruled that "enemy combatants" detained in the war on terrorism are entitled to challenge their classification in court.
It is thus not inconceivable that the composition of the court will remain the same during the next presidential term, just as it has during the current one, and as it did during the one before that, Bill Clinton's second. Yet it is not the possibility of zero vacancies that interests voters in this or any presidential election, nor should it. The prudent assumption always is that one or more vacancies will occur and that the president will through the exercise of his nominating power shift to some extent the philosophical center of the court.
In answering "who do you choose and why," Bush made clear (as he did in 2000) his interest in picking justices with a certain judicial philosophy. He spoke of "strict interpretation," a term generally understood to mean a conservative approach to judging.
The remarkable answer came from Kerry, who, notwithstanding his own declarations that he would support "only pro-choice judges for the Supreme Court," seemed to deny an interest in judicial philosophy. A "good judicial decision," he said, is one that when "you're reading [it] . . . you can't tell if it's written by a . . . liberal or a conservative. . . . You just know you're reading a good judicial decision."
For Kerry, it appears that judging is a merely technical undertaking and that it has nothing to do with ideas. But of course it does. It matters, for example, how a judge goes about interpreting a constitutional provision or a federal statute, and there are sharp philosophical differences among the nine justices as to how those tasks are to be carried out.
Kerry pointed out that Bush has long held up Justices Antonin Scalia and Clarence Thomas--judicial conservatives both--as models of the kind of jurists he'd appoint. But Kerry declined to state what he has elsewhere made clear--that he would choose judicial liberals.
The second-debate question thus demands a follow-up in tonight's finale: "Mr. Kerry, please tell us which justices you most admire, and why their philosophy of judging has your support?"
Terry Eastland is publisher of The Weekly Standard.