THE recent retirement of United States Supreme Court Justice Sandra Day O'Connor and the subsequent death of Chief Justice William Rehnquist have presented President George W. Bush with two of the most important decisions of his presidency.

The President has a historic opportunity to shape the composition of the court and an institution at the heart of American democracy for decades to come. The moment should not be underestimated.

At a time when the ideological fault lines have opened up across the American landscape, particularly over the role of religion in society, the US Supreme Court is being called upon to adjudicate some of the most contentious issues of the day.

Cases involving abortion, doctor-assisted suicide, capital punishment and affirmative action are just some of those being cited.

There is also a vigorous debate about states' rights, the power of US Congress to regulate interstate trade and commerce and the division between church and state creating difficult constitutional questions for the court to resolve.

As the final court of appeal, the implications of each decision taken by the court are felt far and wide.

The court is never far from the political action. Chief Justice Rehnquist presided over the Clinton impeachment hearings and during the 2000 Bush-Gore presidential race, the Supreme Court by a bare majority stopped the manual recount of the votes in Florida.

The fact that prior to these two vacancies the court was so delicately balanced has ensured the President's nominees are of even greater import.

Between 1994 and 2003 the court was split 5-4 on 175 cases and O'Connor was in the majority 135 times and Rehnquist was in the majority 111 times.

While Rehnquist invariably formed part of the conservative grouping on the court, O'Connor was more unpredictable.

Despite being a Reagan appointment and with a history in Republican Party politics, this first female justice of the court was often the "swinging" vote deciding the outcome of a case one way or the other.

For example, while she supported some restrictions on the use of abortions she argued against outlawing the practice as established in the landmark 1973 case of Roe v Wade.

So, too, on affirmative action, while being against the imposition of race quotas she held in favour of those who cited race as a factor in their decision-making process.

To date, Bush has only nominated one of his two court appointments.

Choosing 50-year-old Appeals Court judge John Roberts to become the next chief justice is viewed as a clever strategic choice as he seems to have had the right combination of advocacy, government and judicial experience.

Barring Roberts's ill-health, his age affords the President the opportunity of shaping the leadership of the court for at least a quarter of a century.

Roberts also understands the nuances of the Supreme Court, having previously argued 39 cases before its bench and been a one-time clerk to Rehnquist.

During the US Senate confirmation hearings, Roberts has been at pains to stress his impartiality. He said: "I come before the committee with no agenda" and suggested that in judicial decision making "you don't look to your own values and beliefs".

However, such statements alone do not win over sceptical Democrats such as New York Senator Charles Schumer, who is one of many forensically examining Roberts's previous work fully aware of the legal and by extension cultural and political consequences of the court's decisions.

Schumer said of Roberts that "we have seen maybe 10 per cent of you, just the visible tip of the iceberg. And we all know that it is the ice beneath the surface that can sink the ship".

During the confirmation hearings Roberts has given the impression he would act in accordance with the court's precedent on abortion rights referring to "settled expectations" with the American public.

However, he has been reluctant to detail his position on the other contentious issues, bringing back memories of Justice Ruth Bader Ginsburg's confirmation hearings in 1993 when she said "no hints, no forecasts, no previews".

THIS highlights the inherent difficulty in the confirmation process, predicting the behaviour of the judicial nominees.

As O'Connor's record illustrates, once on the court judges take decisions that do not necessarily correspond with their previous views and opinions.

Nor can one always predict the issues that in time the court will be called upon to hear.

Just as the Internet and measures taken in the war on terrorism were a distant reality at the time of O'Connor's appointment in 1981, so, too, are probable developments in biotechnology and genetic engineering that are bound to raise complex issues for a future Roberts court.

In the meantime, many Americans await the confirmation of their next chief justice, a man whose influence will permeate their lives for years to come.

Josh Frydenberg is a former senior adviser and speechwriter to Prime Minister John Howard and is now attending the Kennedy School of Government at Harvard University

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