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High court nominee could be hot election topic

The Supreme Court was rarely discussed during the 2004 presidential race, but it is shaping up to be a dominant theme in the midterm election of 2006 and the next contest for the White House, NBC News political reporter Mark Murray writes.

WASHINGTON — All it took was a three-sentence letter announcing her retirement, but Justice Sandra Day O’Connor’s decision last week to step down from the Supreme Court has quickly transformed Washington into a political combat zone. War rooms are humming. Campaign-style TV ads are up and running. And politicians are already debating the rules of engagement. In fact, some are even comparing the process to find and confirm O’Connor’s successor to a presidential campaign. 

Yet there’s a bit of irony to all of this — the Supreme Court was rarely discussed during the 2004 presidential race. Indeed, neither President Bush nor John Kerry ran TV ads about the court and its impact; neither mentioned it in their convention speeches; and just one question was devoted to it in the three presidential debates. Instead, the 2004 campaign focused mostly on terrorism, Iraq, the economy, gas prices and health care.

But if the court wasn’t a hot topic last year, Democrats, Republicans, and political analysts all believe that a battle over O’Connor’s vacancy could play a significant role in the 2006 and 2008 elections. “If there is a big fight, it will be an issue,” said Republican strategist Charlie Black. “(But) it is impossible to say until you know who the nominee is.”

Court was background noise in 2004
To be sure, the Supreme Court wasn’t entirely ignored in the 2004 Bush-Kerry contest. During a campaign event in August, Kerry told a Wisconsin crowd about its importance. “You want three words to motivate you,” he said. “The Supreme Court. There you go. That’s all you need.”

The Democratic National Committee also ran print ads in African-American newspapers about the court. “So who do you want filling three potential vacancies on the Supreme Court? Those who are pro-Republican or those who are pro-you?” And it came up as an issue during the Democratic primaries.

Yet, for the most part, the Supreme Court was mostly background noise. One reason, political strategists say, is that a vacancy doesn’t interest most voters until it happens. Furthermore, it’s liberal and conservative special-interest groups — not your average voters — that tend to pay attention to the court.

But Democrats say that could change in upcoming elections, especially if Bush’s nominee to replace O’Connor — and also perhaps future nominees — votes to reverse Roe v Wade or other important decisions. Indeed, Democrats argue that if this happens, it could erase some of the gains Republicans have made with women voters. (In 2004, according to exit polls, Bush won 48 percent of female voters; in 2000, he won 43 percent of them; and in 1996, Bob Dole won 38 percent.) 

“If Bush picks a right-wing person who votes to overturn Roe, it would have a disastrous impact on the Republican Party,” said Democratic political adviser Steve Elmendorf. “The issue has a real potential to drive away the moderate women who voted for Bush because of security.”

Female voters returning to Democrats
Karen White, the national political director of the pro-choice Democratic group Emily’s List, agrees with Elmendorf. “I do believe that women voters are going to retaliate,” she said. As an example, White points out that Clarence Thomas’s bruising 1991 Supreme Court confirmation — during which he was accused of sexually harassing Anita Hill — galvanized American women, helping to boost Emily’s List’s membership and also the ranks of women serving in Congress after the 1992 election. 

Moreover, White cites a recent Emily’s List poll showing that female voters already seem to be flocking back to the Democrats: 43 percent of women say they’d vote for a Democratic candidate in 2006, while 32 percent say they’d vote Republican, and one-third of female Bush voters indicate they might not vote for Republicans next year.

Potential for filibuster backlash
On the other hand, Republicans contend that Democrats could play a political price if they try to filibuster Bush’s nominee. “The issue of obstruction by Democrats hurt them in ’02 and to some extent in ’04,” said Black, the GOP strategist. “This would be the ultimate example that everyone in America would be following.” In 2002, Democrats were criticized for obstructing the creation of the Department of Homeland Security in a dispute over unionization at the department. And former Senate Minority Leader Tom Daschle was defeated last year, in part Republicans say, for holding up Bush’s judicial nominees and his legislative agenda.

In addition, National Republican Senatorial Committee spokesman Brian Nick says his group will be monitoring the rhetoric from liberal groups such as, and it will tie that rhetoric to key Democrats like Sens. Robert Byrd of West Virginia and Bill Nelson of Florida, who are up for re-election in 2006. “The majority of Americans don’t want a liberal litmus test on the nominee,” Nick said.

But what happens if Bush picks someone like U.S. Attorney General Alberto Gonzales, who might disappoint conservatives because he’s perceived to have moderate views on abortion? Non-partisan political analyst Stuart Rothenberg notes that there might be some backlash from conservatives, which could affect Republican turnout in next year’s mid-term elections. Republicans disagree, however. “Ultimately, the base of the party trusts the president a lot. They think he has done the right things for the country,” said GOP pollster David Winston.

Black added, “If Gonzales is the nominee, some conservatives might sulk for a week, and then will be on board.”

And then there’s the impact the vacancy could have on the 2008 scramble for the White House. Potential candidates Joe Biden, D-Del., Sam Brownback, R-Kansas, and Russell Feingold, D-Wis., are all members of the Senate Judiciary Committee, and they will be in the spotlight in any kind of confirmation fight. So will Senate Majority Leader Bill Frist and Sens. George Allen, R-Va., Hillary Clinton, D-N.Y., John Kerry, D-Mass., John McCain, R-Ariz., and Rick Santorum, R-Pa. — and their statements could provide plenty of fodder in the 2008 primaries and general election.

Not everyone agrees
Still, Winston, the GOP pollster, believes that the Supreme Court will rank below other issues in 2006 and 2008. “Despite the amount of money both sides will pour into this, I still think the number-one issue will be jobs and the economy, and number two will be the war on terror.” And, of course, this speculation could be much a do about nothing: Bush might pick someone who pleases his base and who also doesn’t seem to upset Democrats.

But that would surprise many observers. Rothenberg, the nonpartisan analyst, notes that this vacancy will be “a defining act” in Bush’s presidency, and he says that the choice will likely expose the cultural fault lines in America, pleasing some while angering others. “I think this could very well be an issue in 2006 and 2008,” he said. “This is a big deal. This isn’t just another appointment. The Supreme Court is not just another body.”

Mark Murray covers politics for NBC News. .