The 'Supreme' fight ahead

Michael Barone
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Posted: Jul 04, 2005 12:00 AM

Justice Sandra Day O'Connor's retirement seems sure to lead to a brutal political battle over the confirmation of her replacement. There is no indication that George W. Bush intends to nominate someone who appeared on a recent list of nominees acceptable to Senate Democrats. This would be to cede the appointing power from the president and the Senate majority to a minority in the Senate.

 Nor is there any indication that People for the American Way or the Alliance for Justice will not oppose any Bush nominee with every ounce of strength they have.

 These groups exist for the purpose of defeating Republican judicial nominees, and their financial supporters -- the big money people and those sending in small amounts in response to direct mail appeals -- would be furious if they meekly accept a Bush appointee as Republican senators accepted Stephen Breyer and Ruth Bader Ginsburg when they were nominated by Bill Clinton. Not opposing nominees would be an act of self-destruction for these groups, and Washington lobbying groups are not in the habit of self-destruction.

 As for Democratic senators, they have almost unanimously accepted direction from these groups. As independent-minded and candid a senator as Russ Feingold of Wisconsin was seen reading questions to a Bush nominee off the papers supplied by these groups. A major Democratic constituency, the feminist left, expects a fight against any Bush nominee. The Democratic senators surely will not disappoint.

 This means that Democrats will filibuster any Bush nominee, while the left groups attempt to tar them with any charge they can dream up. A filibuster, of course, is unprecedented, a change in what has been accepted practice in the Senate for over 200 years (the four-day holdup of Abe Fortas' nomination as chief justice in 1968 was not a filibuster -- Fortas did not have majority support).

 Senate Republicans seem prepared to change the rules to put them in line with traditional Senate practice, so that only a majority is required for confirmation. Unless the left groups can peel several Republican senators away from supporting the nominee, he or she will be confirmed.

  On the day O'Connor announced her retirement, both Democrats and Republicans expressed pious hopes that a pitched battle will not be fought. But the fact that O'Connor provided the key fifth vote on many decisions over the years ensures that there will be.

 The major political issue here is abortion. But, in fact, O'Connor's replacement is unlikely to make much difference on abortion. Even without O'Connor, there are five votes on the Court to reaffirm Roe v. Wade. And even if Roe v. Wade were overruled and the decision on abortion returned to the state legislatures, abortion is not going to be banned anywhere except perhaps Louisiana, Utah and Guam.

 Indeed, as some liberals have pointed out, in state politics this might hurt Republicans who advocate abortion bans. O'Connor's replacement might make a difference by voting to uphold partial-birth abortion bans. But partial-birth abortions are rare in any case. And, indeed, the total number of abortions has been declining since the early 1990s. Most Americans don't want to see abortion banned. But they don't want to see it celebrated, either.

 But abortion is one of those issues that divides the electorate along cultural lines into nearly equal Democratic and Republican blocs. It is of great symbolic importance to groups on both sides, and not for trivial reasons. But a brutal battle over abortion -- which is what this battle is going to be about for most voters -- is an argument over an issue that is largely moot. Other issues that exercise legal scholars -- over federalism, for example -- are totally unfamiliar to almost all voters.

 The political effect? No great help for either party. Democrats' all-out opposition to the Bush administration -- on issues from judges to Social Security and the nomination of John Bolton to be ambassador to the United Nations -- has resulted, Democratic pollster Stanley Greenberg concludes, in a weakening in Republicans' standing but an even greater weakening in the standing of the Democrats.

 Voters, says Greenberg, dislike controversy among Washington insiders, and they think Democrats have "no core set of convictions or point of view." In filibustering a Bush Supreme Court nominee, Senate Democrats will be fighting yesterday's battle at the behest of the lobbyists representing one of their core constituencies. In overcoming this filibuster, if they do, Senate Republicans will be satisfying larger but more inchoate core constituencies.

 My own hunch is that the Democrats' posture of frenzied opposition won't get them where they want to go. But I'm not sure whether a battle over yesterday's issues helps Republicans, either.