The Supreme game

Posted: Aug 11, 2005 12:00 AM

WASHINGTON -- This week's vicious attack on Judge John Roberts by the abortion lobby was not really a desperate effort to defeat him against overwhelming odds. Rather, it is part of an intricate game that not only determines the occupant of one seat on the Supreme Court but can set its ideological course for the next generation.

 The current hard count for Roberts is 60 senators. That would be more than enough to confirm him and barely enough to end a filibuster. But it is not enough to further the grand strategy for a conservative court. At least 70 votes for confirmation may be needed to make it comfortable for President Bush to name somebody at least as conservative as Roberts to the next vacancy, which soon may be in the offing.

 The 30-second television ad aired nationally by NARAL Pro-Choice America this week claimed that Roberts as a young Justice Department lawyer supported bombing of abortion clinics. In fact, he worked on a brief intended to protect peaceful picketing. NARAL's approach was not meant to sway the Senate but to pick off nervous Democrats and perhaps a Republican or two, keeping Roberts as close to 60 votes as possible. The president and his closest advisers then would have to ask themselves: If a nominee as squeaky clean as John Roberts cannot do better than this, can we risk nominating another conservative for the next vacancy?

 The stakes are enormous for U.S. government policy. George W. Bush seeks the goal that eluded Dwight D. Eisenhower, Richard Nixon, Ronald Reagan and the first George Bush: a conservative Supreme Court extending into the future. That prospect is why conservative action groups, disappointed with George W. Bush, supported his re-election in 2004 and stick with him today. Similarly, the unprecedented filibuster strategy launched by Democrats to block Bush's appellate nominees was in fact intended to inhibit Bush in filling the Supreme Court.

 Instead, Bush's opponents have been off balance for more than a month. They expected the first vacancy this year to be created by Chief Justice William Rehnquist, so that, at worst, one conservative would be replaced by another. The next surprise was the selection of Roberts, a conservative who is not easy to assault. With his confirmation unlikely to be blocked, both sides are concentrating on the next vacancy.

 Sources close to the Supreme Court thought the ailing Rehnquist's resignation might follow O'Connor's closely, and such public speculation might have prompted the chief justice's declaration that he is staying. Yet the current talk around the court is that Rehnquist is so ill that the vacancy will be created sooner rather than later. Such an opening is the real hope of liberals for a reasonable facsimile of O'Connor to restore the old balance.

 Conservative activists would be ecstatic if Bush promoted Justice Antonin Scalia to chief justice, but architects of an overarching court strategy are not so sure. Three separate confirmation fights in a short time might induce enough battle fatigue for an O'Connor-like social liberal to slip in.

 The unquestioned favorite for a conservative chief justice is Appeals Court Judge J. Michael Luttig of McLean, Va., in his 15th year on the 4th Circuit. If Bush flinches at naming two white men to the court in succession, two women -- both appellate judges on the 5th Circuit -- pass fastidious muster on the Right. Edith Jones of Houston has been an appellate judge since 1985 and was mentioned for the Supreme Court more than 15 years ago. Priscilla Owen of Austin, a former Texas Supreme Court Justice, recently was seated on the federal appellate bench after a long Democratic filibuster.

 Luttig, Jones or Owen going on the court would cement a conservative majority. Any one of them likely would trigger a filibuster, either for chief justice or to replace Scalia, and the "nuclear option" might have to be pulled out of the closet for confirmation. Liberal hopes for Bush missing this golden opportunity could depend on how many Senators vote against Roberts, and that is reason enough to smear him as an abortion bomber.