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On Law: Bush could reshape Supreme Court

By MICHAEL KIRKLAND, UPI Legal Affairs Correspondent

WASHINGTON, May 16 (UPI) -- Think the Senate battle over judicial confirmations is bitter now?

President George W. Bush may have a better-than-even chance of two Supreme Court vacancies to fill this summer.

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With the vacancies would come an opportunity to influence American life well into the 21st century.

In last week's column, we advanced the theory that Chief Justice William Rehnquist may be poised to retire.

This week, we can say the same thing about Justice Sandra Day O'Connor, and for much the same reasons.

O'Connor is famous for believing there is life beyond the Supreme Court, and her husband has publicly pined to return to friends in Arizona.

She has now served on the high court more than 20 years. In 1981, President Ronald Reagan tapped her to be the first woman justice in the nation's history.

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Her impact on the Supreme Court has been broad and deep.

Along with fellow swing vote and moderate conservative Justice Anthony Kennedy, O'Connor often forms a 5-4 majority with its three solid conservatives, Rehnquist and Justices Antonin Scalia and Clarence Thomas.

Almost as often, the rest of the court has to conform itself to her cautious approach, either because she writes the narrow majority opinion, or her separate concurrent opinion -- agreeing with a judgment but not joining in an opinion with the other four -- ameliorates a prevailing plurality opinion.

It's common knowledge that she and Kennedy largely wrote the majority "per curiam" -- unsigned -- 5-4 opinion in 2000's Bush vs. Gore.

O'Connor, like Rehnquist, is looking at a window of political opportunity.

There is a Republican president in the White House and a narrow Republican majority in the Senate. Though the odds are favorable, there is no absolute guarantee that situation will still exist after the 2004 elections.

Like Rehnquist, if O'Connor wants certainty that her successor will be appointed by a Republican chief executive -- and she does -- she must step down now.

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It's quite likely that O'Connor's views will considerably influence the Supreme Court's decisions in the University of Michigan affirmative action cases.

She has consistently expressed the opinion that government should not use race in decision-making, but just as consistently refused to close the door completely to the use of race in government actions.

The decisions should be handed down soon, and must be handed down before the justices recess for the summer in late June or early July.

In any case, if O'Connor ends up writing or considerably influencing what may be the landmark decision on affirmative action, it would make a fitting capstone to her career.

The only fly in the ointment: Bush may have the devil of a time finding a replacement for her.

O'Connor joined the court's four liberal justices in forming the majority for 2000's Stenberg vs. Carhart. The narrow decision struck down Nebraska's ban on "partial-birth abortions," and by implication largely outlawed such bans in nearly 30 other states.

A principal argument against the ban was that it was a thinly disguised attempt to ban all abortions, because it is nearly impossible to separate those procedures involving "partial birth" from any other.

The majority in Stenberg concluded a number of things, including a finding that the "partial-birth abortion" ban placed an "undue burden" on a woman's ability to choose an abortion -- citing 1992's Planned Parenthood vs. Casey.

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To replace O'Connor with a justice who wants to overturn Casey -- or even to replace O'Connor with a justice similar to Kennedy, who doesn't believe the state bans conflict with Casey -- would stir up a hornets' nest of Democrats in the Senate.

The battlefield would not be confined to the abortion arena.

The Supreme Court has defined, and will continue to define, the boundaries in which average Americans live.

Whether their children pray in school. Whether those children can go to public or private schools using tax dollars in the form of vouchers. Whether government has gone too far in restricting freedom and invading privacy in the name of fighting terrorism. How much power a police officer has over you when you're stopped for a routine traffic violation.

How the federal laws against age discrimination or against the disabled are enforced. Gender and race discrimination in the workplace.

The list is literally endless.

If Rehnquist and O'Connor are truly ready to step down, they will present the president with both an opportunity and a challenge.

How Bush meets that challenge will fascinate historians and political junkies alike.

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