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Roberts May Not be the Issue Democrats Hoped for in 2006

All day Tuesday, right up until the three cable TV networks flashed the news that U.S. Court of Appeals Judge John G. Roberts Jr. was President Bush’s choice to fill retiring Justice Sandra Day O’Connor’s seat on the United States Supreme Court, I was bombarded by analysts telling me that it was increasingly likely that the president would appoint a woman to the court.

Brilliant. But unfortunately wrong.[IMGCAP(1)]

That “analysis,” of course, wasn’t really analysis at all, since it apparently was based on nothing more than unsubstantiated rumor, idle speculation and first lady Laura Bush’s comments that it would be a fine idea to pick a woman to replace O’Connor.

With that experience in hand, we all ought to be extremely careful in predicting how the confirmation process will go, since we cannot now know what Roberts’ opponents might dig up in their inevitable efforts to discredit him.

But Roberts begins as a clear favorite for confirmation, if only because minutes after the announcement, New York Sen. Charles Schumer (D) described Roberts as a man of “brilliance, character, integrity and decency.” That’s not a bad recommendation from someone who opposed him in committee when Roberts was last up for confirmation.

Almost as important, however, were Roberts’ demeanor and comments as he thanked Bush for being selected to join the court. He was suitably humble and respectful toward the Supreme Court. There was no fire and brimstone in his initial words. He didn’t sound like former Alabama Supreme Court Justice Roy Moore. And he didn’t look scary (see Robert Bork).

Since Roberts seems to be a likable, even-tempered sort, Democrats may have trouble demonizing him. His opponents will try to ruffle him, and they may well find personal or professional issues that they can use to argue that he is unacceptable. We won’t know until the hearings are underway and reporters have looked into every nook and cranny of his life.

But Roberts made a good first impression when he was introduced Tuesday night, and first impressions are important in politics.

If we can’t know for certain how Roberts’ confirmation process will go or whether he will be confirmed, it’s even harder to determine how the president’s selection of Roberts — or Roberts’ performance on the Supreme Court, assuming that he is confirmed and participates in decisions during the upcoming term — will affect the 2006 midterm elections.

One thing seems likely: although the selection of Roberts is likely to generate complaints from the left, it doesn’t automatically create a huge political flap that will raise questions about Bush’s judgment. In other words, the nomination isn’t likely to scare swing voters (most of whom probably won’t know who John Roberts is anyway).

During its upcoming term, the Supreme Court is scheduled to hear a New Hampshire case on parental notification for minors who want an abortion. But while supporters of legal abortion undoubtedly would regard a court decision upholding the state’s law as an “erosion” of a woman’s right to an abortion, it is far from clear that that kind of decision would outrage average voters, male or female.

Indeed, if polls are correct, Supreme Court decisions allowing state notification laws or restrictions on partial birth abortions would mesh quite well with public opinion.

Of course, any court decisions next year on controversial social issues (including abortion and the so-called right to die) are bound to produce yelling and screaming, and 5-4 decisions that please conservatives are certain to generate outrage on the left. And, yes, that could elevate issues in a way that would mobilize liberals and move some swing voters to the Democratic column.

But unless the Supreme Court overturns Roe v. Wade, which seems extremely unlikely between now and the midterm elections, Roberts may not be the useful poster boy of alleged Republican extremism than Democrats would need to alter the political landscape.

Indeed, the selection could put Congressional Democrats in a bit of a bind. While grass-roots liberal activists want blood, Senate Democrats don’t want to look too partisan — or as if they are obstructing a reasonable choice, feeding a perception Republicans have been working for years to build.

Tennessee Rep. Harold Ford (D), who hopes to be his party’s Senate nominee next year, has already praised Roberts as “an accomplished jurist and skilled attorney.” Other more centrist Democrats in red states are likely to echo those comments, thereby embellishing their own “independent” credentials and making it difficult for liberal Democrats to demonize Bush and Roberts.

Bush may well have threaded the needle with Roberts, picking a nominee who satisfies conservatives and has the credentials, intellect and temperament to get confirmed. If that is the case, then the pick could actually improve the president’s overall reputation, rather than giving his opponents another weapon to use against him in the 2006 elections.

Stuart Rothenberg is editor of the Rothenberg Political Report.

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