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Elections 2000: What's at Stake for HIV/AIDS and for the Country this November 7th?

October 2000

Participation in elections is one of the cornerstones of democracy, the most direct way in which citizens can influence the policies and direction of government. Yet among all the industrialized democracies, the United States consistently has the lowest level of voter participation -- in many years, fewer than half of eligible voters actually cast their ballot on election day. Even 1996 -- a presidential election year when turnout is at its highest -- only 54.2 percent of the civilian, unincarcerated voting age population cast a ballot.

Many reasons have been offered for why voter turnout is so low in the U.S. Some view it as a good sign, that people are basically content with the government they have, and don't feel the need to actively involve themselves with politics. The opposing perspective argues that many non-voters feel alienated from government and believe that the political system does not represent them or their interests. Some others in the middle of the issue say that many people actually would like to vote, but that they don't know how to go about registering and actually voting, or they dislike the candidates and don't see much difference between them. Whatever the reason for low voter participation in the U.S., it is certainly not the case that elections don't matter.

It is true that the Democratic and Republican Parties are closer to each other on many issues than the main opposing parties are in many other countries, and third parties such as the Reform, Green, and Libertarian Parties have only a limited influence. And it's also true that not every election ends up having major implications for public policy. But there are other times in which the outcome of elections is of enormous significance. The first major national elections of the modern period probably took place in 1932. In that year, incumbent Republican President Herbert Hoover, who had taken few steps to alleviate the Great Depression that began in 1929, was soundly defeated by New York State Governor Franklin Delano Roosevelt. FDR then initiated an era of activist government through the "New Deal" that created many of the social programs that Americans counted on for decades, most notably welfare and social security.

Another key election was in 1964, when President Lyndon B. Johnson was re-elected in a landslide against archconservative Republican Barry Goldwater. Backed by a sound majority of northern Democrats in Congress, LBJ ushered in reforms securing the rights of African Americans and a range of new social policies as part of his "Great Society." More recently, the progressive policies put in place during the New Deal and the Great Society were jeopardized by the 1994 election, when the Republican Party led by House Speaker Newt Gingrich gained majorities in both houses of Congress.

Yet perhaps the most significant election for HIV/AIDS occurred in 1980, when incumbent Democratic President Jimmy Carter was defeated by Republican Ronald Reagan. Because of that election, Reagan's "moral majority" rhetoric, hostility to gay men and ethnic minorities, and obsession with cutting spending on health and other "social issues" were the official government positions in place when the first cases of AIDS emerged in June 1981. It's hard not to imagine that things would have turned out very differently in the early years of the AIDS epidemic had Jimmy Carter been re-elected, and even more so if his rival Senator Ted Kennedy had succeeded in his own bid for the presidency.

The election of 2000 may not be a quite as momentous as some of those other elections, but there's still a lot at stake. At the presidential level, the nation has a choice between continuing the policies of the Clinton-Gore administration or restoring the Bush family and the Reagan Legacy to the White House. Despite serious shortcomings in the Clinton-Gore record around HIV/AIDS issues, it would be hard to argue that their record is not vastly superior to that of the Reagan-Bush years. The next President may also have the opportunity to appoint new members to the U.S. Supreme Court and many lower courts, which are the interpreters of the meanings of laws and even the Constitution itself.

On the congressional level, the Republicans hold a majority of only a few seats in the House of Representatives, so control of that house could easily change in November, with the Senate more solidly but not unassailably Republican. Democratic members of Congress have been, and remain, the most vocal proponents of the rights of people with HIV/AIDS in the face of often sharp disagreement from Republicans. Thus, control of Congress will have major implications for HIV/AIDS policy, especially programs for the prevention of sexually and drug-use transmitted HIV. (However, it should be noted that quite a number of Republican members of Congress, such as Utah Senator Orrin Hatch, Vermont Senator James Jeffords, and Maryland Rep. Connie Morella, have actually been very progressive about providing adequate funding for HIV/AIDS-related treatment). Finally, future policy at the state and local levels will be shaped by a range of elections for governors, state legislators, mayors, and city council members. These state and local governments play key direct roles in the development and implementation of HIV/AIDS policies and programs, and most directly affect the lives of people living with HIV/AIDS (PLWHAs). This article will analyze these and other dimensions of the upcoming election, with a particular view to their significance for HIV/AIDS issues in the New York City area.

The Race to Control Congress

The United States Congress is composed of two separate "houses": the Senate and the House of Representatives. The Senate is composed of 100 members, two from each of the 50 states. The House of Representatives has 435 members, apportioned among the fifty states according to their population. New York State has the third largest contingent (after California and Texas) in the House of Representatives, with representatives from 31 congressional districts. Every two years, all 435 representatives, including New York State's 31 members, must stand for reelection. Senators, however, are elected for six-year terms, so one-third of the Senators are up for election every two years.

Although the Presidency is the most high profile political institution in the country, many would argue that Congress is actually the most important institution. Congress has two principal powers and responsibilities: to determine all federal laws, including the appropriation of the federal budget, and to oversee and guide the work of federal agencies. (In addition, the Senate is responsible for confirming all presidential nominations to federal judgeships and other high government offices and for ratifying treaties.)

In order for legislation to pass Congress, it must be approved by a majority vote of both the Senate and the House, and then approved by the President. If it is not approved (or is "vetoed") by the President, then Congress can only enact it into law by passing it with a vote by two-thirds majorities in both houses. Thus, if there is "divided" government (in which the presidency and one or more houses of Congress are controlled by different parties), it becomes more difficult for either party to enact its entire program. For decades after the election of FDR in 1932, the Democratic Party almost always had a majority in the House and usually also had a majority in the Senate. Since 1995, however, both houses of Congress have had Republican majorities, which has had a huge influence on the course of policy development in the United States.

The significance of which party has a majority in Congress goes well beyond the simple mathematics of adding up numbers of votes to garner more than 50 percent. The majority party also gets to select the leadership of that house (the Speaker of the House and the Senate Majority Leader) as well as -- perhaps most crucially -- the chairperson of all the many committees set up in each house. The importance of this kind of control over the houses and their committees is at least as important as the ability to muster majority votes. The leaders of each house get to control the flow of information, for example by determining which bills will go up for debate and what procedures will be used to vote on them. Likewise, in modern times, there are far too many bills of far too specialized and technical a nature for the entire membership of either house to review and debate. Thus, most of the discussion of legislation and the oversight of federal agencies is conducted by the many permanent standing committees established by each house. The chairperson of the committee has a huge degree of discretion over how and whether to discuss particular pieces of legislation, which usually cannot be voted upon by the entire house until a committee has first voted on it.

Hillary Rodham Clinton
Rick Lazio

The Senate

U.S. Senators hold their offices for six years at a time and, as representatives of entire states, generally must reflect the views of a diverse constituency. For these and other reasons, the Senate is usually the more moderate of the two houses of Congress, less given to extreme partisanship or sharp conflict. At present in the Senate, there are 54 Republican and 46 Democratic Senators (tie votes are broken by the Vice President, who is also the presiding officer of the Senate). As happens every two years, one-third of the Senate is up for election; this time, 18 seats currently held by Republicans and 15 seats by Democrats are up for election. Of these 34 seats, five Senators are retiring, creating what are called "open seats" or ones in which the current Senator (i.e., the "incumbent") is running for re-election. Since incumbent members of Congress are usually re-elected if they have done an even adequate job, these five open seats are of greatest importance.

However, about five of the seats held by Democrats and ten held by Republicans are in "contested" races, those which polls indicate could be won by either the incumbent or by his or her challenger. Conventional wisdom holds that in the 2000 election, the seats held by Republicans -- many of whom have only been in the Senate since the sweeping Republican victories of 1994 -- are particularly vulnerable. Among the weakest Senate incumbents are considered to be William Roth (R-Delaware), John Ashcroft (R-Missouri), Rick Santorum (R-Pennsylvania), and Charles Robb (D-Virginia).

Among the Senators who are retiring is Daniel Patrick Moynihan of New York State. This year, the race to replace Moynihan is one of the most watched in the country, pitting Democratic First Lady Hillary Rodham Clinton against, first, New York City Mayor Rudy Giuliani, and then, since Giuliani dropped out of the race, U.S. Rep. Rick Lazio. Hillary Clinton's views on issues relating to HIV/AIDS, as well as associated concerns regarding health care concerns, reproductive freedoms, gay/lesbian rights, and ethnic/racial minority issues, are very similar to those articulated by her husband (and which are familiar to most of us by now). Lazio, by contrast, appears to be a moderate conservative. However, he has been a particular advocate for housing issues, including the federal Housing Opportunities for People with AIDS (HOPWA) program and has worked with the Log Cabin Republicans, a group of gay and lesbian Republicans. Press reports have also indicated that Lazio has written letters on support of a fringe group who believes that HIV is not the cause of AIDS. However, Lazio has stated that this is not his own view and it is unclear whether he was aware that this group is so far outside the mainstream this group; in fact, he may have thought he was taking constructive steps towards advancing AIDS research.

Richard Gephart

Another Senate race of interest is the one shaping up between Democratic Vermont State Auditor Edward S. Flanagan and incumbent Republican Senator James Jeffords. Win or lose, Flanagan stands to make history. He is already the first openly gay official elected at the statewide level and the first openly gay major party candidate for the U.S. Senate. In addition, he previously lost a partner to AIDS, a fact which would undoubtedly make him one of the nation's most prominent spokespersons on AIDS should he be elected in September. On the other hand, Jeffords is one of a vanishing breed of liberal Republicans who recently received a 100% voting rating from the gay-rights lobby the Human Rights Campaign and who was a major co-sponsor of reauthorization of the Ryan White CARE Act. As a Republican, his presence in the Senate on the one hand increases the Republican majority but on the other hand provides an ally on progressive causes within the Republican caucus. With the recent passage of legislation permitting same-sex civil unions in Vermont, issues related to gay and AIDS concerns have received heightened attention in that state, which may influence the outcome of this election.

The House of Representatives

Republicans in the 435 member House of Representatives have the numerically smallest majorities in recent memory -- 223 seats versus 210 for the Democrats (with one Republican-leaning independent and one Democratic-leaning independent). With all 435 seats of up for election, as they are every two years, it would seem that party control of the House would be entirely "up for grabs." However, as in the Senate, House incumbents have a strong tendency to get re-elected, meaning that most Representatives who are running for re-election will achieve it.

Newt Gingrich

Further, many House districts -- which are smaller and more homogenous than the states represented by Senators -- have strong majorities of one party or the other among their populace, making a change in party for that seat unlikely. Taking all of these factors into consideration, only about six to eight open seats held by Republicans and three or four held by Democrats are regarded as being competitive in the general election. In addition, several incumbents are considered vulnerable to being unseated, including several in the tri-state area. Jim Maloney from Connecticut, Michael Forbes of New York State (who switched from the Republican to the Democratic Party last year), and Rush Holt of New Jersey. The New York City delegation, by contrast, are all considered safe bets for re-election in the general election.

Because of the tight numbers in the House, and the tendency of some moderate Republicans and Democrats to vote against their party from time to time, the upcoming election may not have an enormous influence on the outcome of actual voting in the House. More significant would be control of the leadership and committees, with House Minority Leader Dick Gephart, well known as a progressive politician, replacing Dennis Hastert as Speaker of the House. While Hastert was chosen as a quiet, centrist figure to replace the controversial and unpopular Newt Gingrich, he is widely regarded as being controlled by other, ultraconservative members of the Republican leadership such as Reps. Tom DeLay and Dick Armey.

Leadership will also change hands in the key House subcommittee overseeing matters relating to HIV/AIDS: the Subcommittee on Labor, Health and Human Services and Education of the Committee on Appropriations, which controls the flow of funds. The centrist Republican chair of the subcommittee, Rep. John Porter, is retiring and could potentially be replaced by a more conservative, obstructionist member, such as Rep. Ernest Istook of Oklahoma, if Republicans remain in control of the house. By contrast, if Democrats regain control, leadership could go to one of the champions of PLWHAs such as Rep. Nancy Pelosi from the San Francisco area.

The Stakes for HIV/AIDS Issues in the Next Congress

All of the critical federal legislation relating to HIV/AIDS is subject to approval by Congress. In the current Congress (the 106th Congress, 1999-2001), a number of significant battles were fought to provide adequate funding for HIV/AIDS, particularly in light of the 1997 budget agreement which placed spending caps on many types of domestic spending. Particular areas of concern have been funding for Medicaid, upon which more than half of all people with AIDS and more than 90 percent of children with AIDS rely. Particularly important has been expanding Medicaid eligibility to those who are HIV-positive but so far asymptomatic. ( Memorably, the advocacy group AIDS Action compared holding off Medicaid coverage for HIV until AIDS has developed to designing air bags that don't deploy until after a car has crashed.) Other important initiatives have been the Work Incentives Improvement Act enabling people with disabilities (including HIV) to be employed more easily and the Patient's Bill of Rights guaranteeing greater individual access to and control over the health care system. Advocacy has also been undertaken to get Congress to appropriate additional funds for battling the AIDS epidemic in other countries, to lift obstacles to comprehensive sex education and HIV prevention work among youths and other at-risk populations, and to ensure sufficient funding for ongoing research.

Perhaps most important of all is the Ryan White Comprehensive Resources Emergency (CARE) Act. The CARE Act, as it is known, is probably the single most important piece of legislation for PLWHA because it provides monies for HIV care and treatment through its first two "titles": Title I which funds large metropolitan areas and Title II which funds the states and territories of the U.S. In the era of combination antiretroviral therapy, Title II is especially crucial because it includes funds for the AIDS Drug Assistance Programs (ADAPs) which make it possible for PLWHA to receive the medications they need. The CARE Act seems unlikely to be de-funded by Congress regardless of who controls the Congress. However, major battles are being fought around the details of the pending re-authorization of CARE Act; at press time it was unclear whether the reauthorization would occur in this Congress or be deferred to the next.

A 1992 Rematch for the Presidency: Bill Clinton's Vice President Versus George Bush's Son

While the elections for Congress are extremely important, the race to replace Bill Clinton is, inevitably, getting the most attention in 2000. Control of the Presidency tends to switch periodically between the two major parties. Between 1933 and 1969, Democrats held the White House for all but the eight years (1953-1961) that Dwight D. Eisenhower was president. Then, Republicans controlled the White House from 1969 to 1993 except for the four years of the presidency of Jimmy Carter (1977 to 1981). Now, at the end of eight tumultuous years of the Clinton presidency, the country is faced with a very clear choice. It can elect Clinton's vice president and chosen successor, Al Gore. Or it can choose George W. Bush and restore the old Republican guard who ran the country through the Nixon, Ford, Reagan, and, Bush presidencies.

As most people know, the President of the United States has vast, sweeping authority, although it is checked and balanced by the power of Congress and the Supreme Court. The President manages the entirety of the Executive Branch, including all the agencies that handle the foreign affairs of the United States, such as the State and Defense Departments, as well as all domestic affairs. The President also appoints all high government officials who are not elected officials, represents the country abroad, strongly influences the economy, can veto legislation, and has a commanding pulpit from which to influence public opinion. In terms of HIV/AIDS, the most crucial appointments by the next president will be the secretary of the Department of Health and Human Services as well as the director of the National Institutes of Health (NIH) and the NIH's Office of AIDS Research.

In many ways, Gore and Bush are quite similar in terms of their history and political views. Gore was the son of a U.S. Senator who went on to become a Senator from Tennessee himself and now vice president. Bush, the governor of Texas, is of course the son of President George Bush (1989-1993). Politically, both men are pretty much in the middle of the ideological spectrum, with Gore leaning to the left and Bush leaning to the right but neither particularly ideological. In terms of experience, knowledge, and temperament, the two differ greatly. Gore has an extensive background in public service and a detailed knowledge of policy, but is sometimes seen as stiff, elitist, and out of touch with ordinary people. By contrast, Bush is a relative political newcomer, never having held political office until five years ago when he became governor of Texas, which is a big state but also has a constitution that severely curtails the actual power of its governor. He is seen as outgoing and engaging, but light on his knowledge of the details of government and public policy. Both men fairly easily dispatched their principal opponents in the presidential primary elections (ultimately, only one of many potential challengers emerged as a serious threat to either candidate). Former New Jersey Senator Bill Bradley was the only Democrat to oppose Gore for their party's nomination, forcing Gore to the political left on several issues but ultimately failing to win even a single primary election. Bush faced stiffer competition from Arizona Senator John McCain, but ended up defeating him along with a broad range of lesser competitors including mainstream candidates such as former Vice President Dan Quayle, former Tennessee Governor Lamar Alexander, former Cabinet Secretary Elizabeth Dole, and current Utah Senator Orrin Hatch, as well as right-wing activists Gary Bauer and Alan Keyes and businessman Steve Forbes. Both Bush and Gore formally received their parties' nominations over the summer, and then named their vice presidential running mates. Bush chose former Defense Secretary Dick Cheney, who had an extremely conservative voting record during his ten years in the House representing Wyoming. Cheney also has a daughter, Mary, who is openly lesbian but remains very close to him. Gore selected Connecticut Senator Joseph Lierberman, a respected centrist who leans conservative on some cultural issues, who is the first Jewish person to be on a major party ticket.

Throughout the summer of 2000, Bush held a slight lead over Gore in many polls, but this lead was erased by Labor Day and the election was a dead heat. Important to note, though, is the fact that presidents are elected not by the direct, or "popular" vote of the people, but by the "electoral" vote in which each state casts a set number of votes according to its population. In almost every state, however, all of the electoral votes go to the person who gets the highest popular vote in that state. Thus, for instance, what ever candidate gets the most votes in New York State will not win their proportional share of the electoral vote, but all of the state's 33 electoral votes. This winner-take-all approach tends to magnify the winner's margin of victory, and most polls have shown Bush considerably better placed in the electoral vote than Gore.

As might be expected, Gore has a much closer relationship than Bush to the groups most closely associated with HIV/AIDS. He has met on numerous occasions with the leaders of the lesbian and gay community, supported pro-gay legislation such as the Employment Non-Discrimination Act (ENDA) as well as executive orders by Bill Clinton banning anti-gay discrimination in federal agencies, and clearly signaled that gay and lesbian people would be part of his Administration. Gore also has cultivated ties to African-American communities, which are a cornerstone of the Democrat's electoral coalition. Latinos, an emerging constituency for the Democrats, have also been supportive of Gore, although Bush has garnered a great deal of support from Latinos in Texas and is working hard to extend that to other states. After the defeat of the early push for universal health care at the start of the Clinton administration, Gore has adopted a very incremental approach to health issues, such as by supporting the "Patients' Bill of Rights." His wife, Tipper, is an advocate of people with mental illnesses and he has strongly supported environmental and other public health causes. In response to heckling by members of the protest group ACT UP, Gore began to support greater involvement of the U.S. in the AIDS epidemic in Africa. However, Gore has also failed to challenge the Administration's indefensible ban on the use of federal funds for needle-exchange programs, even after these have been proven not to increase drug use and has generally supported the so-called "War on Drugs."

Despite outreach at the Republican National Convention and through other forums, Bush and the Republican Party in general remain fairly estranged from most ethnic and racial minorities, many of whom see the party as hostile to affirmative action and immigrants. Yet whereas the last two Republican presidential nominees declined to attend the annual conference of the civil rights organization the National Association for the Advancement of Colored People (NAACP), Bush attended this year's meeting and declared that "strong civil rights enforcement will be a cornerstone of my administration." Unlike Gore, and even unlike his rival McCain, Bush has not met with members of the Log Cabin Club, a gay Republican group, although he did meet with a smaller group of supporters who are gay and refused to sign an anti-gay pledge that some of his primary opponents signed. He has also indicated that he would not appoint an openly gay person to his Administration, although not on the grounds of their sexual orientation, he said, but because such as person would be unlikely to support his views. In Texas, Bush also opposed adding sexual orientation to a hate crimes bill and vowed to veto any repeal of the Texas anti-sodomy law. Bush generally supports Republican positions on health care issues, including giving broad leeway to HMOs and other business organizations. Despite all but admitting that he had used drugs in his youth, he has harshly prosecuted drug offenders in Texas, even for first offenses. Bush also opposes abortion and has retained the call in the Republican Party platform for an amendment to the Constitution banning abortion.

Perhaps because both Gore and Bush are relatively in the political center, they are being challenged both from the right by conservative commentator Pat Buchanan with the Reform Party (which was founded by Ross Perot in 1992) and from the left by consumer advocate Ralph Nader with the Green Party (which focuses on environmental issues). Buchanan is a notorious right-wing ideologue who has declared "culture war" on racial and ethnic minorities, feminists, lesbians and gay men, and countless other groups. Having once wrote that gay men essentially brought the AIDS epidemic upon themselves by "declaring war on nature," Buchanan would be one of the worst imaginable choices for president from the perspective of HIV/AIDS issues. By contrast, Nader, although he has not focused much specifically on HIV/AIDS issues, advances a progressive agenda including acceptance of diversity and good access to health care. Nonetheless neither Buchanan nor Nader has any real chance of winning the election, although they do have the opportunity to advance a particular agenda and to steal away votes from the major party candidates. In tight elections in crucial states, Buchanan and/or Nader, even if they win only a few percentage points of the popular vote, could well determine whether that state's electoral votes went to Gore or to Bush. They also make it harder for Gore and Bush to position themselves in the political middle (where elections are decided) by forcing them to pay attention to the more extreme edges of their party.

The Courts: The Third -- and Unelected -- Branch of Government

The nine Justices of the U.S. Supreme Court -- who hold their seats for life and collectively make final rulings about the meaning of the Constitution -- are not elected. However, they are chosen by elected officials: whenever there is a vacancy in the Supreme Court or other, lesser federal courts, new judges are nominated by the President and then either confirmed or rejected by the Senate. This fact makes the 2000 elections highly relevant not only for Congress and the Presidency, but also for the Courts, the third branch of government.

Over the past 50 years, the federal courts have been the single most important institution of government for the advancement of individual rights and liberties. In earlier periods of American history, the Supreme Court was sometimes a reactionary force. Most notable in this regard was the infamous Dred Scott case of 1857 when the Supreme Court ruled that a slave had no rights and the Plessy v. Ferguson case of 1896 in which the Court upheld the constitutionality of "separate" public facilities for whites and blacks. However, the "Warren" and the "Burger" Courts, that is the Supreme Court as presided over by Chief Justices Earl Warren (1953-1969) and Warren Burger (1969-1986), were major advocates of individual rights and liberties. Many of the crucial rulings in American history regarding the protection and expansion of civil rights (equal protection for all groups), civil liberties (basic individual freedoms), and reproductive rights (access to contraception and abortion) came from the Warren Court and (less so) the Burger Court. Among them were rulings striking down racial segregation, ensuring voting rights, protecting freedom of speech, and guaranteeing reproductive rights. (Notably, both Warren and Burger were Republicans appointed by Republican presidents Eisenhower and Nixon, respectively.)

Since 1986, the Supreme Court has tilted steadily to the conservative side. This is perhaps unsurprising when one considers that Democratic presidents have had the opportunity to appoint only two Supreme Court Justices since 1968 (both nominated by Clinton), while Republicans have appointed ten. The current "Rehnquist" Court, named for Chief Justice William Rehnquist, has produced a number of terrible rulings, perhaps most notably in the case of Bowers v. Hardwick in 1987 in which they upheld the constitutionality of Georgia's law prohibiting oral and anal sex between consenting adults. However, at times by the thinnest of margins -- votes of five justices to four -- the Rehnquist Court has also generally shielded Roe v. Wade, the 1973 ruling which protects a woman's right to choose an abortion, and other free-speech rights. The Rehnquist Court, and other federal courts, have also steadily whittled away at the breadth of the Americans with Disabilities Act (ADA), a major source of protection for people with disabilities including those related to HIV/AIDS. (The Supreme Court has rarely directly ruled in a case related to AIDS, but the principles it establishes often determine how lower courts will rule in AIDS-related cases.)

All of that may be about to change, however, because the next president may very well have the opportunity to appoint three or more Justices to the Supreme Court. Eight of the nine current Justices are over 60, three are over 80, and several have had cancer and other health problems. Currently, the Court is divided into three distinct blocs: three justices (Rehnquist, Antonin Scalia, and Clarence Thomas) fairly consistently vote together in a highly conservative direction while three justices (John Paul Stevens, Ruth Bader Ginsburg, and Steven Breyer) tend to vote together in a somewhat liberal direction. In the center are the remaining three justices, Sandra Day O'Connor, Anthony Kennedy, and David Souter, who split their votes between the two blocs, therefore usually deciding the outcome of close cases. In the 1990-2000 Supreme Court session, for instance, Kennedy determined the outcome of 5-4 vote cases which struck down laws restricting access to abortion but also ruling that the Boy Scouts of American had the right to discriminate on the basis of sexual orientation.

It seems likely that the two major presidential candidates would make very different types of appointments to the Supreme Court. It is worth noting that of the three members of the liberal bloc on the Court, two (Ginsburg and Breyer) were appointed by Clinton, while the third (Stevens) was a Democrat appointed by Republican President Gerald Ford as a cross-party gesture after the Watergate scandal. Gore could be expected to continue Clinton's legacy of appointing moderate judges who lean to the liberal side but are nowhere near as liberal as many justices were during the Warren and Burger Courts. By contrast, Bush has identified the two most far-right members of the Court Scalia and Thomas, as his ideal for the Court. It is also noteworthy, however, that Bush has refused to pledge only to appoint judges who oppose abortion rights, as he has been pressured to do, and that his appointments to judgeships as governor of Texas have tended to be fairly non-ideological, pragmatic conservatives. Further, a number of Supreme Court justices have surprised the presidents who appointed them by being more or less conservative than had been expected. (Chief among these have been three justices nominated by Republicans: Eisenhower appointee Warren, Nixon appointee Harry Blackmun, and Bush appointee Souter.)

Given that the Senate is likely to remain in Republican control for at least the next two years, if not longer, the most likely impact of the elections for control of the Supreme Court is the following. If Gore wins, he will be able to appoint only moderate judges because very liberal judges would be rejected by the Senate. If Bush wins, however, there will be almost no limit to how conservative his appointments could be. In order to placate the far-right wing of the Republican Party, Bush seems likely to appoint at least one, if not two, ultraconservatives to the Court. With such a delicate balance on the Court at present -- and with Supreme Court justices appointed for life -- the next Presidential election seems likely to shape law in the U.S. for a generation or longer to come. And, in the end, that may well be the single most important issue defining the entire 2000 elections.

Raymond A. Smith, Ph.D., editor of Body Positive, is an adjunct assistant professor of political science at Hunter College, City University of New York (CUNY), where this semester he is teaching a course on the presidential elections.

Back to the October 2000 Issue of Body Positive Magazine.

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