By Pete Williams Justice correspondent
NBC News
updated 11/5/2004 7:35:42 PM ET 2004-11-06T00:35:42

Some political fireworks in Washington this week show that the battle over nominations to the U.S. Supreme Court has already begun — even before there are any vacancies.  And the episode raises a question about whether Roe v. Wade could soon be overturned.

Sen. Arlen Specter of Pennsylvania, fresh from re-election, touched a political live wire when asked what he'd do if the president nominates abortion opponents to the Supreme Court.

"When you talk about judges who would change the right of a woman to choose, overturn Roe vs. Wade, I think that is unlikely," Specter said Wednesday.

President Bush helped Specter fight a tough campaign. His comment angered some Republicans in Congress who believe the election was a mandate for change on the Supreme Court. Congressional conservatives say Specter's plan to take over the committee that handles judicial nominations is now in jeopardy.

Democrats, meantime, say they won't back down if the president sends up conservatives they find unacceptable.

"I think that Democrats in the Senate and maybe even some Republicans, particularly if it's the Supreme Court, will stand up to him," says Sen. Charles Schumer, D-N.Y.

But could two, maybe even three, Bush appointees to the Supreme Court overturn Roe v. Wade?

Yes, say some constitutional scholars, especially if two of the court's Roe supporters were to step down — Justices John Paul Stevens, who's 84, and Justice Sandra Day O'Connor, age 74.

"Given that it's constitutional interpretation, meaning we're reading into the language, nothing is set, nothing is fixed," says professor Steve Wermiel at American University Law School.

But some conservative legal experts say Roe has been on the books so long — more than three decades — that it's settled law, unlikely to be overturned.

Charles Fried, who as solicitor general during the Reagan administration twice tried to get Roe overruled, told a legal forum just last year that it's here to stay.

"I think the issue is off the table and it's irresponsible to try and put it back on," said Fried.

But even if Roe v. Wade isn't overturned, legal scholars agree Bush appointees would likely vote to uphold state laws intended to restrict access to abortion.

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