Bush's Supremely Risky Opportunity


By Howard Gleckman and Lorraine Woellert The death of Supreme Court Chief Justice William Rehnquist and the retirement of Justice Sandra Day O'Connor gives the President a tremendous opportunity to put a more conservative stamp on the last institution in Washington not now controlled by the GOP -- the High Court. And Bush has taken the first step in that direction by naming Appeals Court judge John Roberts Jr. as his choice to replace Rehnquist as Chief Justice. Chances are good that Bush's pick to fill the O'Connor seat will be at least as conservative as Roberts.

The President has his own agenda here, of course. His picks could help refocus the attention of a public increasingly dissatisfied with the Administration's slow response to Hurricane Katrina and with the war in Iraq. He could use his choice to replace O'Connor as a way to reach out to moderates -- or as a means to shore up his conservative base.

But either way, Bush's opportunity in 2005 could become a nasty minefield for any Republican angling to move into the Oval Office in 2009. The reason: Roe v. Wade, the 1973 Supreme Court decision which recognized abortion rights.

FUNDAMENTAL RAGE. To understand why, fast-forward to 2008. If in fact Bush appoints a second conservative, the odds increase that the High Court will have overturned Roe. If so, Democrats will be energized as they haven't been for a generation. But if Roe remains the law of the land, the Religious Right will be in full-throated revolt. In pulpits from Maine to California, preachers will be recalling Judas. Every Sunday, parishioners will be reminded of the treachery of the national Republican Party. Their great expectations of 2005 will become the great disappointment of 2008.

Make no mistake, for those fundamentalist Christians who make up the core of the GOP base, Bush's court picks are really only about one thing: overturning Roe. Sure, some are interested in a broader conservative agenda, but for many Roe is the whole ballgame. For example, Senator Sam Brownback (R-Kan.), an '08 Presidential hopeful, calls abortion and related questions about when life begins "the central issue of our day."

Just think about it. The Religious Right has been sold out on gay marriage. Anybody heard a word from the White House about a Constitutional amendment banning such unions since last Election Day? They will have been ignored on stem-cell research, where federal funding is likely to be expanded over their strong objections. And they were abandoned in their efforts to keep Terri Schiavo on life support, when federal courts repeatedly rejected ill-conceived legislation and allowed her to die.

With that record, a ruling or two chipping away at Roe won't be good enough. To the Right, the Supreme Court is key to the nation's future agenda. "Everything is at stake," says Phyllis Schlafly, president of the Eagle Forum, a conservative pro-life group.

CATHOLIC BACKLASH? The result, predicts one conservative strategist: If Roe is still the law of the land, fundamentalist Protestants could sit out the 2008 election, wrecking the GOP's carefully constructed strategy of building a deeply committed and active base. In such an environment, the party's hard core will demand that each and every Republican Presidential hopeful pledge absolutely, positively to nominate justices who will overturn Roe. No more fudging. It will be a write-it-down guarantee. And if a GOP candidate doesn't take such a pledge, he or she will have no chance of getting the party's nomination.

One GOP strategist says Bush could feel a backlash even sooner -- especially from Catholics. He worries that abortion is a key issue keeping many Catholics committed to Bush -- especially since they disagree with the war in Iraq and his support of the death penalty. If they feel the Bush court isn't moving aggressively enough to reverse Roe, those Catholics would become more vocal in their opposition to the Iraq war.

And while Democrats don't want to say so out loud, they can't wait for such a turn of events. A Republican candidate who pledges to get rid of Roe will have put a landmine in his own road to reelection. In a July 7-10 USA Today-Gallup Poll, 68% of those surveyed said they opposed overturning the ruling.

THE VITAL MARGINS. That's also why Democratic pols see a big upside if Roberts and O'Connor's yet-unnamed successor swing the court to reverse Roe. Privately, Democrats believe such a decision is their ticket back to the White House. If the High Court overturns Roe, says Senator Edward Kennedy (D-Mass.), "this country will become inflamed." Adds one Democratic operative: "It would be terrible for the country, but politically, it is the best thing that could happen to us."

Dems believe that such an outcome would help drive moderates, especially suburban women, into their arms. But despite the Dems' fondest hopes, a reversal of Roe isn't going to decide the '08 election. Many other issues -- including the economy, the situation in Iraq, and the state of the war on terrorism -- will matter as well. And so, of course, will the personality of the party's own candidate for President.

But on the margin -- the place where recent Presidential elections have been decided in recent years -- Republican operatives may find themselves wishing that Bush didn't get two picks for the High Court.

Gleckman is a senior correspondent, and Woellert is a correspondent, in BusinessWeek's Washington bureau


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