Dick Morris: Judicial Jujitsu

The Hill

With deft Roberts choice, Bush plays judicial jujitsu

Who says President Bush isn’t brilliant? His maneuver in appointing Judge John Roberts has completely throttled the Democrats in the highest-stakes game of his second term.

The key is that Bush has used the Democrats’ opposition to his district and circuit-court judicial appointments against them and made it a ratification of the Roberts candidacy. Simply put, by choosing a judge whom the Democrats confirmed unanimously when he was nominated for the D.C. Circuit Court — and whom they did not filibuster — Bush has made the Democrats impotent.

The Democrats thought they were preparing for the Supreme Court battle when they hit on their strategy of filibustering Bush’s judicial nominations. They saw these battles as spring training to get them in shape for the real fight that would come when Bush made his Supreme Court nomination.

Instead, their strategy has backfired massively. By lending such a high profile to their opposition to Bush’s lower-court appointments, the Democrats have effectively denied themselves the ability to filibuster anyone of whom they have approved in the past.

When the Democrats singled out certain of Bush’s appointees to the courts for filibusters and strident opposition, they, in effect, gave their seal of approval to those whom they did not filibuster. Their silence is like the classic case in Sherlock Holmes of the dog that didn’t bark.

And when the Democratic Senators agreed to a voice vote on Roberts, in effect confirming him unanimously, their seal of approval was made even more explicit. Now, having voted for Roberts and having not filibustered his nomination, the Democrats cannot come back and suddenly discover reasons to oppose him.

Obviously, if Roberts says the wrong things at his confirmation hearings or abandons the wise strategy laid out by Ruth Bader Ginsburg in refusing to spell out her likely decisions on cases that will come before the court, then all bets are off. But if Roberts handles himself well and avoids explicitly committing himself on Roe v. Wade and other issues, Bush has succeeded in putting him over and dodging the bullet that seemed to be marked for him when Sandra Day O’Connor resigned.

Has Bush fooled the left or the right? Will Roberts be the reliable pro-life vote that the Christian right hopes, or will he be the judicial conservative, respectful of precedent — including Roe — that the left hopes? We won’t know until after he takes his seat and casts his vote. But Bush has threaded his way through a minefield in selecting the most conservative judge who has already received recent Senate approval — and garnered a unanimous Democratic vote.

It is very interesting to see how Sen. Hillary Clinton (D-N.Y.) will vote on the Roberts nomination. Should she back him, she will be defying her core constituency — the abortion-rights group NARAL Pro-Choice America. For now, her vote for Roberts might win her points in moving to the center. But if Roberts votes against Roe, Hillary will have a very hard time explaining her support for him, especially if Sens. John Kerry (Mass.), Evan Bayh (Ind.) and Joe Biden (Del.) — her potential Democratic rivals in 2008 — vote against his confirmation.

On the other hand, if Hillary joins what is likely to be a small minority of Democrats in opposing Roberts, she is belying her supposed move to the center and showing that, when the chips are down, she will tack to the left. In posing such a dilemma for Mrs. Clinton, Bush has again shown his capacity for deft political maneuver.

Bush can just follow the Roberts playbook as future Supreme Court vacancies come up. Just appoint the most conservative available jurist whom the Democrats did not filibuster and he can escape political damage while appeasing his hard-right followers.

Bush is brilliant. There is no other way to read it.