courtship of Al Gore, The

What's your worst nightmare? Here's one that should make you wake up screaming:

The Republicans botch the coming presidential campaign and we end up with President Gore.

Forget that the President will be a lunatic who thinks he's invented the Intemet and that Love Story was based on his life. What's he going to do? Kill foreigners to distract the country from his personal problems? Cruise the West Wing? Suborn perjury?

Forget the painful State of the Union addresses-you can always turn off the TV.

And forget Gore's dream of abolishing the internal combustion engine-even a Democratic Congress is unlikely to sign off on that madness.

What President Al (Love Story) Gore will do that ought to give you nightmares is this:

He will appoint judges. By virtue of the judicial appointment power, the next President will determine what kind of county this will be for the next half century.

Though much of what the federal judiciary does is unimportant, at this precise moment in history the courts are in a Mexican stand-off on a score of truly important issues. These include racial preferences, criminal law, free exercise of religion, federalism, free speech, and-the liberal's favorite section of the Constitution-the invisible-ink abortion clause.

The next President will appoint enough judges to give one side the upper hand in these fights.

The Next Chief Justice

With Chief Justice William Rehnquist, and Justices Sandra Day O'Connor and John Paul Stevens all strong candidates for retirement before 2005, the next President will most likely appoint at least two and maybe three Supreme Court Justices-including the next chief justice.

Just last week, the High Court announced three major federalism decisions-each one a narrow 5-to-4 ruling.

It's always difficult to predict exactly what a liberal judge will do, since the sine qua non of a liberal judge is not to let the Constitution get in the way of a good liberal policy agenda. At least with conservative judges there's a rule book.

The grey area comes in the process of interpreting it, but it's a Constitution they're interpreting and not a distillation or the current thinking of various left-wing rainbow coalitions.

In trying to keep up with the latest thinking of groups like Womyn Against Rape, La Raza, and the Sierra Club, Harvard Law Prof. Laurence Tribe has had to put wildly variant legal principles in his famous treatise, American Constitutional Law. In the first edition published in 1978, for example, pornography was free speech, protected by the Constitution, and anyone who said otherwise was probably a crazed fundamentalist bookburner.

By 1988, when the second edition came out, the feminists had decided they didn't care for pornography. Consequently, pornography had transmorgrofied from the precious 1st Amendment right of Tribe's 1978 treatise to a potential civil-rights violation in the second edition.

Still, there are some causes to which liberal lawyers have remained dearly loyal through the years.

Governments discriminating against citizens on the basis of their race is one policy liberals love and always will love. They also eternally love criminals, the President's case being merely illustrative in this regard.

Inescapable legal disasters will befall civilrights law and criminal law if Gore is elected President

The Civil War amendments to the Constitution provided for "equal protection of the laws." The accompanying statutes explicitly prohibited state governments from discriminating on the basis of race. Conservative judges have interpreted all this to mean that state governments are not supposed to discriminate on the basis of race. (It's precisely that sort of thinking that gets them dismissed as "strict constructionists.")

Liberal judges-devotees of the "evolving constitution"-have interpreted the laws prohibiting racial discrimination by the government to mean that the government can discriminate on the basis of race, provided La Raza says it's okay.

The battle lines and the delicate balance of power between "original intent" partisans and "living Constitution" adherents on the matter of racial discrimination were made evident 20 years ago in California Regents v. Bakke.

Nine justices seemed to produce about 57 opinions in that case. In the end, they assembled no clear majority on the question of whether a state university could set aside places in the incoming class for members of favored racial groups.

Four Justices in Bakke concluded that state governments are not supposed to discriminate on the basis of race; four other justices concluded that state governments are permitted to discriminate (but only to benefit favored races); and Justice Lewis Powell, speaking for himself, found that universities could give preference to certain races, but only for the purpose of promoting the "robust exchange of ideas."

If I lost you there, Powell's logic was: 1) universities are permitted to try to obtain a student body with differing viewpoints; 2) one's beliefs, background, and entire personality is determined by one's race; therefore, 3) universities could take a short cut to obtaining differing viewpoints on campus by discriminating on the basis of race.