Let’s assume for a moment that John Roberts is confirmed. What happens
next in the battle for the Court? I suspect some of even the most liberal
Democrats may vote for Roberts. That would be a clever strategy. If
Democrats generally agree that Roberts is a fine and moderate fellow, it
will be that much more powerful a statement when they turn in unison
against the next nominee. The Dems will say, “See, we went along with
Roberts because he was a genuine moderate. But this Luttig (or whoever) is
totally unacceptable. We Democrats proved we could be fair with
Roberts. It’s Luttig (or whoever) who’s the problem now, not us.”
That would be a good strategy for the Democrats, because they know that
Rehnquist is bound to step down not too long after Roberts is confirmed. So
the next nomination is where the real fight to control the Court will take
place. Replacing Rehnquist with another strong conservative will not be a
“gimme.” The Democrats will back Roberts, and then go all out to turn the
Renquist seat into the O’Connor seat. They will use their cooperation on
Roberts as a lever against the next nominee, whoever it may be. The
Democrats will turn nice now, so they can be nasty later. And we’re
running out of good conservatives without a paper trail. So the next fight
will be the one that really determines the future of the court.
Then there’s the question of Justice Scalia. If it looks like Hillary (or
some other Democrat) has a real chance to win next time, there may be
pressure for Scalia to step down in time for President Bush to replace
him. Otherwise, given Scalia’s age, the Court could shift radically left
under the next president. Then there’s the question of Justice Kennedy’s
unfortunate tendency to “grow” in office. Maybe Roberts can pull Kennedy
back to the right. Yet Kennedy may continue to “grow” left, partially
neutralizing the effect of Roberts. These seem like some of the key
post-Roberts challenges. In short, the Roberts confirmation is looking
good, but let’s not get cocky. The larger battle goes on.