The Supreme Court - THE Major Election Issue, Plus The Latest Analysis Of The Presidential Race
Forecasts & Trends

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I have written a lot about the 2004 presidential election this year. The War on Terror, the war in Iraq and homeland security have been central themes of both campaigns. However, there is a very important campaign issue that I have not yet touched upon.

One of the most important issues is the fact that the next President of the United States will likely appoint three Justices to the Supreme Court, potentially changing the balance of the Court one way or the other for many years to come. The stakes are huge, and no one knows it better than the big players supporting John Kerry for president.

In this last issue of the Forecasts & Trends E-Letter before the election, I will discuss the various issues that might face the Supreme Court in the future, and why this is possibly the most important issue facing both liberal and conservative voters in this election.

Following that, I will also handicap the presidential race one last time – the last minute polls, which states are key, interesting voter trends and some interesting analysis on just how many new voters the Democrats may have to turn out for Kerry to win. If you’re into politics like I am, you definitely want to read this analysis near the end.

Three Supreme Court Justices To Retire Soon

The Justices of the Supreme Court are currently evenly split, with four liberal-leaning Justices (Stevens, Souter, Ginsberg and Breyer ), and four conservative-leaning Justices (Kennedy, Rehnquist, Scalia and Thomas). Justice Sandra Day O’Connor is the lone “swing vote,” so-named because she does not vote consistently with either the liberals or the conservatives.

The current group of Justices has the longest collective years of service of any Supreme Court since the Depression. It is no secret that several of the Justices are likely to retire in the next four years. It is widely believed that Justices Rehnquist (age 80), Stevens (age 84), and O’Connor (age 74) will all retire within the next four years. We all learned on Monday that Chief Justice Rehnquist has thyroid cancer which could possibly hasten his retirement.

In the 2000 election cycle, the potential retirement of one or more of the Justices was a big campaign issue. When you consider that four more years have gone by without any Justices choosing to retire, and with three expected to retire soon, it becomes curious as to why the Supreme Court issue is not much bigger today than it was in the 2000 election.

I personally believe this is one of the biggest single issues in the presidential race, and one that every American should take seriously. Whoever is in the White House during the next four years will likely have the opportunity to nominate three Justices to replace those who may retire, and thus shape the Supreme Court for years to come.

Next President Can Swing Court Left Or Right

During this election cycle, I have found it curious that the various factions within the Democratic Party have been surprisingly cohesive in both their attacks on President Bush and their support for Senator Kerry. You may recall that during the Democratic primary season, many Democratic commentators expressed concern that the far-left radicals were driving a wedge in the party that might prevent them from being a viable force, not only in this election but also in the future.

However, since then the Democratic Party has come together with a cohesiveness that defies description. Even though the Kerry campaign has flip-flopped, sputtered and flailed around trying to find a direction, his supporters have been ardent. What could bring the traditional liberal factions of the Democratic Party together with the likes of billionaire George Soros and others? I believe the answer is the control of the Supreme Court.

If Kerry wins, there is little doubt that he would nominate liberal-leaning judges to fill the Supreme Court vacancies, perhaps three of them, with the potential to dramatically shift the court to the left. This may explain in large part why the various factions of the Democratic party have come together in an all-out drive to defeat Bush.

Huge Issues To Come Before Supreme Court

To better understand how and why the Democrats have come together as they have, I think it is important to look ahead to some issues that are very likely to come before the Supreme Court in the next several years:

Gun Control – No matter what your feeling about the gun issue, it is very likely that the Supreme Court will face challenges to current gun laws, as well as be called upon to rule on new gun legislation. The Democrats, being for stronger gun control, would love to see a liberal-leaning Supreme Court that could weaken the Second Amendment.

Abortion – Liberals fear that a conservative Supreme Court would weaken current law regarding a woman’s right to terminate her pregnancy. So the Democrats would like a liberal Supreme Court to maintain the status quo.

Gay Rights – Discrimination against homosexuals, and specifically the issue of same-sex marriage, are almost certain to face the Supreme Court within the next few years. A liberal Supreme Court would likely see the benefits of legal marriage extended to same-sex couples.

Drug Legalization (or Decriminalization) – While George Soros spends most of his time criticizing President Bush’s foreign policy, not many people know that he has spent the last 15 years funding global drug legalization efforts. Soros reportedly wants to legalize drugs in the US, especially marijuana. What, you haven’t heard this before?

You have to figure that a financial genius like Soros must see a dollar to be made in legalizing drugs, but a conservative Supreme Court could put a damper on his plans. Perhaps that’s why he has committed $15-$20 million or more to defeat George Bush.

Environment – The environmental movement is also interested in having a liberal Supreme Court. This is especially true with oil prices well above $50 per barrel. There will be increasing pressure to drill for oil in environmentally sensitive areas. A liberal court would be helpful to stop such exploration, no matter what the economic consequences.

Tort Reform – If you think tort reform is a good idea, you can forget it if Kerry is elected. Both Kerry and Edwards are lawyers and Edwards, a trial lawyer, made his fortune suing doctors. I’m confident that neither of these attorneys will ever agree to tort reform. After all, trial lawyers are one of their largest support groups. And if they make the Supreme Court more liberal, any future Republican administration could find it impossible to enact any meaningful tort reform.

Legislation From The Bench – Activist judges often resort to creating law when handing down rulings. Recent examples include the issue of including “under God” in the Pledge of Allegiance, endorsement of same-sex marriage and overruling a ban on partial-birth abortions. Many of these cases end up at the Supreme Court since they sometimes involve a deviation from controlling legislation. A liberal Supreme Court would likely support judges who create law in the name of liberal causes.

There will be other important issues that will come before the Supreme Court in the next four years, but space prohibits a discussion of all of these topics. Suffice it to say that whether the Supreme Court tilts conservative or liberal, it could have a very dramatic effect on the law of the land in the next couple of decades. So, it is no wonder now why the Democratic factions have come together, and why so much money is flowing from the many 527 organizations with their liberal agendas.

Much Ado About Nothing?

There are those who say that whoever is elected president will not be able to stack the Supreme Court with Justices that please their core constituency, since no party controls 60% of the Senate. The Dems have shown their ability to stymie Bush’s Federal Appeals Court nominees by filibustering against them. So far, they have been successful in blocking numerous Bush nominees, but they have also set the stage for Republican filibusters should Kerry be elected and attempt to appoint liberal Justices.

My only problem with this is that the Republicans, for some reason, seem to be squeamish about employing the same tactics as those used by the Democrats. However, no matter how the Senate Republicans act, I would much rather have a conservative president nominating the Justices for the Supreme Court than have a group of conservatives trying to block liberal nominations.

Even if the Republican controlled Congress does not approve Kerry’s liberal-leaning nominees, and Kerry has to move to centrist judges instead, that still shifts the balance in the Supreme Court more toward the liberal side.

Thus, if this election cycle has produced no other compelling reason for you to go out and vote, I hope that this discussion of the Supreme Court has now given you one.

And now on to my analysis of the election.

Election Analysis – Kerry Still Hangs In There

As of today, Tuesday (Oct. 26), with one week left, President Bush holds a lead in the national polls of 2.8%, according to, which averages all of the national polls each and every day. is a great website and resource. Each day, they list all of the daily tracking polls, the national polls and all of the state polls – and they average all of them for you daily. Plus they have the most interesting newspaper and Internet editorials from around the country. If you are into this presidential race, you need to visit every day.

In the sections below, I will discuss both candidates, where they have done well and not so well, and we will look at the critically important Electoral College standings as indicated by the state polls as of today. And most importantly, we will look at some data which suggests how many additional votes Kerry must get in order to overcome Bush’s lead at this point.

John Kerry Is Still In It, Despite….

If you’re John Kerry, you have to be feeling pretty good with one week to go. He’s still in this race with a chance to win, according to some polls, despite getting virtually zero help from the Clintons. Former President Clinton, of course, has been recovering from quadruple bypass surgery, but Hillary could have been out there campaigning for him in recent weeks. She wasn’t.

The Clintons did finally come out to support Kerry with just over one week until the election, and after most voters have already made up their minds. Hillary finally campaigned for him over the weekend. Bill Clinton appeared on the stump with him yesterday in Philadelphia. Philadelphia? Mr. Kerry, you already own Philly which traditionally votes Democratic.

Kerry is still in it, according to some polls, and is out there claiming to represent the working class, even though he is a billionaire, or at least married to one. And speaking of that, he’s still in it despite several gaffes by his wife, who inherited all that money from her former husband, Senator John Heinz, who was a Republican. If anyone cares to look, you might be alarmed by some of the whacko causes Mrs. Heinz-Kerry supports.

Kerry’s still in it, even though he said he would require a “global test” before sending American troops into battle. France and Germany would need to give their blessing before we continue the War On Terror? But then Kerry seemed to retract that position and said he would go after terrorists before they strike us first. He’s never said how though, just that he has a “plan,” actually dozens of plans.

Kerry’s still in it even though he was rated the #1 most liberal Senator in the nation in 2003 based on his voting record. That is, when he chose to show up, which was not all that often, especially for Intelligence Committee meetings. And his running mate was rated the #4 most liberal Senator and is a trial lawyer on top of that. Fortunately for Kerry, many voters don’t seem to care that he has frequently voted against the military and intelligence over the last 20+ years, and he also voted against the first Gulf War even though we had a huge international coalition.

And finally, Kerry is still in it even though he and John Edwards both made a calculated choice to refer to Vice President Cheney’s *** daughter in the debates. That one backfired. And Mrs. Heinz-Kerry gaffed once again last week, saying that Laura Bush – long-time teacher and librarian - never held a “real job.”

Yes, you’ve done well Mr. Kerry, despite your record and despite the many gaffes in your campaign. You have the media to thank for getting you past your liberal record and all the blunders in your campaign. The media has demonstrated as never before, for all who want to see, that they have a liberal bias. You owe the major networks, Hollywood (Michael Moore) and the New York Times big-time.

And President Bush, Well….

President Bush had a 70% approval rating in early 2003 during the initial stages of the war in Iraq. Now he’s hovering at 50%, slightly above or below, and no president in recent times has won re-election with an approval rating below 50%. For whatever reasons, Bush seemed completely unprepared for the first presidential debate. He epitomized most of the caricatures the media so often paints of him. That night alone cost him a sizable lead in the polls and allowed Kerry to get back in the race.

Bush did much better in the second and third debates, when they got serious about it. Yet it is debatable whether he actually won any of them. The media, of course, stayed focused on how bad he was in the first debate. Can’t say that I blame them, in that they are supporting Kerry.

Unfortunately, the war in Iraq has been more difficult than expected. There were mistakes and miscalculations, and I’m not sure who all is really to blame. Virtually everyone, including the Congress and the Brits, believed Saddam Hussein had WMDs. Even John Kerry authorized military action against Saddam. Who knows if the weapons really existed, or if they were scuttled off to Syria as some believe.

In any event, the war in Iraq is Bush’s most polarizing issue. The liberals think it was all about oil and Halliburton, while conservatives believe the war in Iraq is an integral part of the War On Terror. I happen to agree. Would the liberals have felt any different if Bush had gone to war with Iran or North Korea? Probably not.

Many people who will vote for John Kerry are simply voting against Bush. For them, it wouldn’t matter who was running for president. More than simply dislike him, many people actually hate George W. Bush. Yet the polls consistently show that Bush is the more likable candidate. He ranks well ahead of Kerry on the issue of the War On Terror and leadership. Still, Kerry’s strongest supporters despise or hate Bush.

To Bush’s credit, this time around he is leading among women voters, and he is expected to significantly increase his vote among African Americans this year. While Kerry will still get the vast majority of black votes, some polls indicate that Bush could double the number of African Americans voting for him. This is troubling for the Democrats. More women are voting for Bush this time because of his consistently higher marks when it comes to homeland security, the War On Terror and leadership in general. This is bad news for Kerry, yet he’s still hanging in there in some of the national polls.

Why The Conventional Thinking May Be Wrong

As noted above, as of today Tuesday (Oct. 26), President Bush holds a lead in the national polls of 2.8% according to which averages all the national polls each day.

Over half of the national polls show the race is still very tight, with Bush holding onto a slight lead but within the margin of error. Several other national polls show Bush pulling ahead strongly (Gallup +5, Time +5, Fox +7, etc.) In 2000, the polls showed Bush had a beyond the margin-of-error lead on Al Gore.

Yet Gore surged ahead late in the campaign, largely due to the Bush drunk driving story which surfaced just before the election, and Gore won the popular vote. Bush won the Electoral College, thanks in part to the Supreme Court. Some believe that just the opposite may occur this time around, with Bush winning the popular vote, but Kerry winning the Electoral vote. It’s possible.

As I analyze the election at this late date, I am focused on these three things:

1. How many new voters have the 527s signed up, and how likely is it that they will really turn out and vote? We are told that the mostly Democratic 527s have registered hundreds of thousands (maybe millions) of new voters. We can safely assume that most of these newly registered people will vote for Kerry, IF (and that’s a big if) they actually show up and vote. If they do, they could tip the election to Kerry.

2. The polls don’t reflect the millions of younger people who only have cell phones. The polling groups don’t call cell phones for the most part. So, we don’t know which way this cell phone-only group is leaning. But since we are told they are predominantly young people, I would have to assume most will vote for Kerry. Here again, the question is, will they actually turn out and vote? Traditionally, they don’t.

3. And finally, Ohio, a few other Midwestern states and Florida. The conventional thinking with a week to go is that Bush will win all the “red” states he won in 2000, with the possible exceptions of Ohio and New Hampshire, but he will also pick up Iowa and New Mexico. The conventional thinking has Kerry winning all the “blue” states Al Gore won with the possible exceptions of Iowa and New Mexico, but he might also win Ohio and New Hampshire that Bush won last time. While this is the conventional thinking, it may be wrong.

Here are the key states to watch and the standings according to as of today:

Electoral Votes
Latest Polls (Averages)

Bush 48.0 / Kerry 47.0

Bush 46.0 / Kerry 46.3

Bush 47.4 / Kerry 46.6

Bush 47.6 / Kerry 45.8

Now, if you are a conservative, your first thought probably is that this is bad because all of these states are within the margin of error; thus Kerry has a shot to win them all. However, your first thought should be that the three Midwest states should not even be in play at this point. Kerry should have them solidly locked up, but he doesn’t, and Bush is gaining ground in Wisconsin and Ohio. Kerry is gaining ground in Florida, however

The conventional thinking is that MN and WI will break for Kerry (even though Bush is pulling ahead in WI), and that it could all come down to Ohio and its 20 electoral votes or Florida with its 27 electoral votes. Yet as noted just above, the other states shown are still very much in play. The Kerry folks are sweating bullets over this! (The Bush folks are, too.)

As I am about to press the “send” button on this E-Letter, here’s how it could very well shake out. Let’s assume, as it looks likely, that Bush wins Wisconsin and New Mexico, and let’s assume Kerry wins New Hampshire. That leaves us with Florida, Ohio and Minnesota. Here are the key scenarios:

1. If Bush loses MN, then he must win both FL and OH to win.

2. If Bush wins MN, then he must win either FL or OH to win.

In any event, you want to watch these states closely over the next week and especially on Election Day.

Why Kerry Needs Almost 10 Million New Votes

As noted above, we do not know how many of the newly registered voters and cell phone-only voters will show up to vote, but we can safely assume that the majority of them will vote for Kerry. But the big question is, how many does Kerry need to vote in order to overtake Bush’s lead? Internet blogger Gerry Daly ( ) has crunched some numbers for us which indicate that Kerry needs a massive voter turnout to win.

Here goes. In 2000, 105,417,258 votes were cast by 56.7% of the voting age population. Looking at the estimated growth in the population since then, Daly estimates that this year approximately 113,500,000 votes will be cast, up 7.7% from 2000. That’s approximately 8.1 million more voters this time around, just based on population growth and averages.

Using more sophisticated analysis, and the Harris poll which was dead-on in the 2000 election, Daly estimates that it is more likely we will see approximately 9.8 million more voters this year than in 2000. Daly estimates that Kerry will need approximately 9.6 million of them to vote for him if he is to beat Bush. Daly concludes:

“Maybe there are nearly 10 million people, aged 22 and over, who did not vote in 2000 but are going to this year. Maybe there is such antipathy towards George W. Bush that will bring voters out even more than the candidacy of Ross Perot did. We’ll know in less than two weeks. If there are, then the Harris poll suggests that Kerry is in the ballpark. If these votes do not materialize, the Harris poll suggests that it will be a short night a week from Tuesday.” Daly is not the only analyst that expects a big increase in voting this year. In fact, almost everyone I read expects that turnout will be huge. Whether the number is 10 million, or more or less, it may be safe to assume that Kerry will get the majority of them. But he won’t get them all.


The upcoming Supreme Court vacancies should be one of the biggest issues in this presidential campaign, but it is not receiving much attention in the media. However, the fact that the next president will likely appoint three new Supreme Court Justices in the next four years is probably the main reason that all these Democratic factions and 527s have come together to defeat George W. Bush.

John Kerry has managed to stay in this race with little help from the Clintons, and despite several gaffes on his part and those of his billionaire wife. Thanks to the media, Kerry is still in it, according to some national polls, even though he was the #1 most liberal Senator last year. Some believe with all this help from the media, he should be up by 10 points or more, and the Bush’s should be packing.

President Bush probably could have put Kerry away and locked down the race, despite the news in Iraq, if he hadn’t performed so poorly in the first debate. Now, he clings to a narrow lead on average in the national polls, and the Electoral College is still in the balance.

While most of the national polls still show it a close race, the “internals” of the polls show that 1) Bush is more likable, and 2) Bush is ahead strongly on the War On Terror and homeland security issues. Bush is also gaining momentum in some of the battleground states noted above and others. It may not be as close as expected, but then again, we thought that in 2000.

In the end, it may come down to this: Will the War On Terror trump anti-incumbency and the “Hate Bush” crowd?

Will the relatively few “undecideds” choose to vote for Bush on Election Day due to national security concerns? How many of the estimated 10 million new voters will vote for Bush for the same reasons? How many of the newly registered and cell phone-only voters will actually show up and vote, and how many will vote for Bush? And how many more women and blacks will vote for Bush this time?

John Kerry has to hope not many!

“Weekly Reader” Students Vote 60% For Bush

Students Choose Bush By Wide 60% Margin

And finally, this just in. The students who read Weekly Reader’s magazines have made their preference for president known. Students in grades 1-12 voted overwhelmingly (60%), in the largest vote participation ever, to give President Bush a second term.

Since 1956, Weekly Reader students in grades 1-12 have correctly picked the president, making the Weekly Reader poll one of the most accurate predictors of presidential outcomes in history.

You can read the full article in the first link below. I also included a couple of good articles about voter fraud and what could go wrong in this year's election.

Be sure to vote!

Very best regards,

Gary D. Halbert

P.S. Due to the election, I probably will not publish until next Wednesday.


"Gary D. Halbert, ProFutures, Inc. and Halbert Wealth Management, Inc. are not affiliated with nor do they endorse, sponsor or recommend any product or service advertised herein, unless otherwise specifically noted."

Forecasts & Trends is published by ProFutures, Inc., and Gary D. Halbert is the editor of this publication. Information contained herein is taken from sources believed to be reliable, but cannot be guaranteed as to its accuracy. Opinions and recommendations herein generally reflect the judgment of Gary D. Halbert and may change at any time without written notice, and ProFutures assumes no duty to update you regarding any changes. Market opinions contained herein are intended as general observations and are not intended as specific investment advice. Any references to products offered by Halbert Wealth Management are not a solicitation for any investment. Such offer or solicitation can only be made by way of Halbert Wealth Management’s Form ADV Part II, complete disclosures regarding the product and otherwise in accordance with applicable securities laws. Readers are urged to check with their investment counselors and review all disclosures before making a decision to invest. This electronic newsletter does not constitute an offer of sales of any securities. Gary D. Halbert, ProFutures, Inc. and all affiliated companies, InvestorsInsight, their officers, directors and/or employees may or may not have investments in markets or programs mentioned herein. Securities trading is speculative and involves the potential loss of investment. Past results are not necessarily indicative of future results.

Posted 10-26-2004 4:17 AM by Gary D. Halbert


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