The most important domestic issue confronting the incoming president will be appointments to the US Supreme Court, writes John C. Yoo
His cancer surgery last weekend reminds one that Chief Justice William Rehnquist, appointed to the US Supreme Court by the late president Nixon, is not going to be on the bench forever.
Neither is John Paul Stevens - a Ford appointee and, like Mr Rehnquist, a second World War veteran. Nor is the third most senior justice, Sandra Day O'Connor, who has now served through six presidential terms.
Their successors will control US policy on the most sensitive questions of our day - abortion, race, religion and gay marriage. The most important domestic issue confronting the incoming president will be appointments to the Supreme Court.
The composition of the court hasn't changed since 1994 - the longest period without a new justice since the Marshall court of the early 1800s. In the last century, justices on average retired when they were aged 71 after about 14 years on the court.
In 2005, Mr Rehnquist will be 81 and will have served on the court for 33 years. Mr Stevens will be 85 and will have served for 30 years. Ms O'Connor will be 75 and will have served for 24 years. Others are not far behind: Justice Ruth Bader Ginsburg, a Clinton appointee, will be 72, with 12 years' service. Justice Antonin Scalia and Justice Anthony Kennedy will be 69, with 19 and 17 years respectively. Only Justice Clarence Thomas will be below 65.
Even one new justice could profoundly affect a court that is closely divided on important social issues. And two new justices could shift national policy dramatically.
Slim 5-4 majorities stand behind the decisions that have struck down prohibitions on partial-birth abortion, approved affirmative action programmes in colleges, allowed the use of vouchers at private religious schools, and restricted use of the death penalty.
Only a one-vote margin has supported restricting Congress's regulatory power in favour of the states, which affects anti-discrimination, criminal and environmental laws.
A 5-4 majority agreed that the US was at war after 9/11 and that the President and Congress could authorise the detention of enemy combatants in the "war on terror".
A 6-3 margin defends the right to abortion first recognised in Roe v Wade and the expansion of homosexual rights in Lawrence v Texas that has spurred efforts for a constitutional amendment to prohibit same-sex marriage.
With a closely-divided Senate a certainty, Supreme Court confirmation hearings in the next four years could make the Robert Bork and Clarence Thomas hearings look tame.
Just how bloody a battle might be, however, depends on which justice resigns and which candidate wins. A Bush nominee replacing the reliably conservative Mr Rehnquist wouldn't change the court's status quo or draw a massive fight. If Senator John Kerry wins, however, his choice to replace Mr Rehnquist would mean major change and, most likely, a knock-down, drawn-out struggle.
A more politicised nomination and confirmation process is the Supreme Court's own doing. Over the last half-century, it has arrogated power - weakening the role of states and even Congress - when it comes to many political and moral questions. The only way for interest groups and citizens to change policy on abortion, affirmative action or gay rights is to change the justices on the Supreme Court.
Despite bruising confirmation proceedings, however, history shows that it is the president who still makes the decisive choice when it comes to the court. In the last century, the Senate has confirmed 89 per cent of the president's nominees to the Supreme Court. Twelve of the last 14 nominees have taken their seats on the court.
Both candidates are well aware of the stakes, and both are preparing nominees. Mr Kerry has said he would nominate a jurist who would protect abortion rights. Mr Bush told donors he expected to replace one justice shortly after his re-election and that he might be replacing as many as four in a second term.
But either candidate could be surprised. President Eisenhower chose Chief Justice Earl Warren and Justice William Brennan, whose late-blooming activist tendencies caused him to consider their appointments the biggest mistakes of his presidency. The first President Bush appointed David H. Souter, who has evolved towards the liberal end of the spectrum.
John C. Yoo, a law professor at the University of California Berkeley, is a visiting scholar at the American Enterprise Institute and a former Bush Justice Department official