Viewpoints

Like the famous falling sky of Chicken Little lore, so do liberal commentators every four years dutifully raise the specter of "back-alley abortions" that are sure to occur when a Republican is elected president and appoints conservative Supreme Court justices (Linda Valdez, "McCain's picks would shift court too far right," Viewpoints, Oct. 5).

The oft-repeated charge is losing traction for good reason: We've had a conservative Supreme Court for a quarter-century and the sky hasn't fallen. To the contrary, although Americans overwhelmingly disapprove of their president and Congress, for the most part they like their federal judges.

That's because the centrist and conservative judges appointed by recent Republican and Democratic presidents have largely gotten the courts out of the business of legislating "rights" out of thin air and, instead, do their best to faithfully apply the Constitution.

In recent years, courts have given far greater protection to private-property rights, federalism and other core constitutional protections that eroded during decades of liberal courts. At the same time, they have limited the rights of criminals and other judicial excesses that brought the Warren Court into disrepute.

But the changes are evolutionary, not revolutionary. Few precedents have been overturned. Indeed, two Reagan appointees, Justices Sandra Day O'Connor and Anthony Kennedy, helped anchor the right to abortion in firmer jurisprudential ground while upholding state regulations that did not impair the right.

John McCain has a long track record from which to project forward. As the state's senior senator, he has enjoyed tremendous influence during Republican administrations over the appointment of federal judges and U.S. attorneys in Arizona. It would be difficult to name a single appointee among dozens during his tenure who has not been highly qualified and well within the mainstream of American law.

Likewise, McCain was accused of betraying conservatives when he joined the bipartisan "Gang of 14" in the Senate, brokering a compromise that ended a filibuster of judicial nominees. Indeed, were McCain to appoint the conservative justices that Valdez predicts, the first thing they would do is dismantle his signature McCain-Feingold campaign-finance law as a blatant First Amendment violation. That he is hardly likely to do.

By far the more ominous threat is that Barack Obama would appoint a justice who would transform the court's four-member liberal core into a majority. The current liberal justices favor racial preferences, virtually unlimited congressional power, the unrestricted use of eminent domain and other doctrines that lack constitutional foundation. They need only one more vote to bring back the bad old days of government by judiciary.

I hope that McCain as president would appoint justices in the mold of Clarence Thomas and Samuel Alito. The court still has much work to do in restoring constitutional liberties and restraints on government power. But his past record of bipartisanship, reinforced by a heavy Democratic Senate majority that can veto judicial nominees, strongly suggests moderation in judicial nominations.

Valdez is correct that this election is a "two-fer"- whoever wins the president also likely wins the judiciary. The current Supreme Court balance that favors fundamental individual rights and constraints on government power is as tenuous as it is precious.

There are lots of reasons to support or fear either presidential candidate on a wide range of issues. But hysterical predictions of the doom and gloom that a conservative Supreme Court would bring are not among the reasons to oppose McCain - first, because of his record of judicial moderation and second because conservative courts are pillars of the rule of law. We have had a conservative Supreme Court for some time. Here's hoping that it remains that way regardless of who is elected president.

Clint Bolick is director of the Goldwater Institute Scharf-Norton Center for Constitutional Litigation and is a research fellow with the Hoover Institution.