The Next Court Fight: Just What the Doctor Ordered for the GOP?

By Stuart Rothenberg

One Supreme Court justice down, one Supreme Court justice to go.

For Republicans, the next Supreme Court fight isn’t just another test of President Bush’s salesmanship or the party’s muscle in the Senate. It isn’t merely an opportunity for conservative interest groups to rally evangelicals, social conservatives and the business community.

And it isn’t only a rare opportunity to change the direction of one of the three branches of government, though that is hugely important to the president’s core supporters.

Instead, it’s an opportunity for Republicans at both ends of Pennsylvania Avenue to change the current national debate - away from ethics and Rep. Tom DeLay (R-Texas), Social Security, Iraq and Hurricane Katrina. Now, Republicans can sink their teeth into what is their own political version of a steak dinner: an ideological fight.

In one sense, it really doesn’t matter whom the president nominates for the court. A fight between Senate Democrats and Senate Republicans is inevitable. And it is a fight that Republicans should welcome, since it is likely to elevate cultural and law enforcement issues in importance and overshadow issues and problems that have kept Republicans on the defensive.

But shouldn’t the president want to avoid a slugfest during the next confirmation fight? After all, with poor job approval numbers, high gas prices and continuing violence in Iraq, is this really the time for Bush to pick a fight with Senate Democrats?

Of course it is. This is precisely the time for Bush to try to sucker Democrats into a bitter battle, even a filibuster.

And chances are, he won’t have to try too hard to incite Senate Democrats.

Half of those Democrats voted to confirm John Roberts as chief justice of the United States, a remarkable number given early speculation that he would get roughly a dozen Democratic votes. But there is little chance that the next nominee, who will fill retiring Justice Sandra Day O’Connor’s swing seat on the court, will draw that many Democrats, unless Bush nominates Lawrence Tribe or Sen. Patrick Leahy (D-Vt.).

Trying to placate Democrats would be a huge mistake, since it would only anger the Republican base and would not measurably improve Bush’s relationship with Democrats. And after the second court vacancy is filled, Democrats will continue to hammer away on Iraq, the budget deficit and ethics, leaving Bush and Congressional Republicans no better off than before the court nominations.

Post-Hurricane Rita polling conducted by both Fox News and CNN/USA Today showed the president’s job approval at 45 percent - nothing to celebrate, but then again not the post-Katrina free fall that some expected.

Republicans continue to support Bush, and a Supreme Court fight is likely to divide primarily, but not entirely, along partisan lines. That’s not a bad thing for the president or his party, particularly since they lack a legislative agenda that keeps grass roots Republicans happy.

A judicial fight might well allow Republicans to paint other Democratic attacks primarily as partisan. Indeed, that’s what House Republicans immediately tried to do after Travis County District Attorney Ronnie Earle indicted DeLay last week.

And if the president’s nominee divides traditional Democratic constituencies, so much the better from the White House’s point of view.

Of course, it isn’t only the fight that counts, it’s the outcome. A flawed nominee with serious ethical or professional issues would damage the president (and his party) further. And drawing Democrats and their liberal interest group allies into a nasty fight won’t solve the GOP’s other problems.

A court battle won’t lead inevitably to a better situation in Iraq, or lower gas prices or resuscitate the president’s Social Security agenda. It won’t remove ethics clouds from DeLay, Senate Majority Leader Bill Frist (R-Tenn.) or House Administration Chairman Bob Ney (R-Ohio).

A fight wouldn’t cure all of the Republican Party’s ills, but at least it would give the president and Congressional Republicans something of a breather from those problems by drawing the media’s attention to an old-fashioned political brawl.

And given the kind of year the Republicans have had, a breather can only help them.

This column first appeared in Roll Call on October 3, 2005. Copyright 2005 © Roll Call Inc. All rights reserved. Reprinted with permission.