Why the GOP Isn't Spoiling for a Supreme Court Fight

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From left: Polaris; Reuters

Justice John Paul Stevens and Sarah Palin

If Republicans believe there is political hay to be made over the fight to replace Justice John Paul Stevens on the Supreme Court, you wouldn't have known it from the speeches at this past weekend's Southern Republican Leadership Conference in New Orleans. Some of the party's leading lights — and several of its most likely presidential candidates — focused their criticisms on the Obama Administration's record on spending and national security, with barely a mention of the looming court vacancy.

One might think the audience of 3,000 Southern conservative activists would be inspired by the type of impassioned rhetoric that has made the high court a lightning rod of anger and agitation on both sides of the political spectrum for more than a generation. But speakers from Sarah Palin to Newt Gingrich to Governors Rick Perry and Haley Barbour bypassed hand-wringing over the potential implications of a liberal new Justice and the provocative, incendiary topics of abortion, guns and gay rights. Instead, they directed their fire at Obama's health care law, deeming it the ultimate manifestation of the Democrats' determination to expand the size of government in a "radical" manner. They also repeatedly accused the President, often in apocalyptic terms, of jeopardizing the nation's security by coddling America's enemies and alienating its allies. But the few references to the court vacancy from the rostrum were low-key and incidental.

So why would Republicans, particularly at a gathering of Bible-belt activists, avoid such a fresh platter of political red meat? The party's dominance starting in the Reagan era — and, yes, Reagan was the most popular figure invoked in New Orleans, as has been the case at Republican gatherings for two decades — was based on the three-legged ideological stool of smaller government, a strong national defense and family values. But in the past few years more moderate Republicans and up-for-grab independents have become increasingly turned off by the emphasis on that third leg.

What gives Republicans hope that they can take back control of Congress and beat Obama in 2012 is the widespread perception that the President, Speaker of the House Nancy Pelosi and Senate Democratic leader Harry Reid are hell-bent on increasing Washington's reach. The victory of Scott Brown in January's Massachusetts Senate race has made it an article of faith that Republicans can gain back the majority on Capitol Hill primarily by emphasizing government expansion, deficit spending and the threat of higher taxes. Republicans now also believe a challenge to the Administration's foreign policy acumen can serve as a secondary claim to use against the President's party.

Both sets of issues, supercharged by the Tea Party movement, provoked the kind of reaction in New Orleans that Republican leaders have seen around the country — raw, intense and emotional. In the past, appeals to the pocketbook and concerns over Middle Eastern alliances have not always stirred the same kind of passions that are sparked by talk of late-term abortions and gay marriage. But something about Barack Obama and his economic and security policies (not to mention his style and agenda) seem to inflame the American right in a way that equals — and perhaps exceeds — the ire inspired by Reagan and even George W. Bush for the left.

So, with an energized and unified party, and plenty of heavy artillery to hurl around, side-stepping the potentially divisive topic of the court and social issues was a no-brainer for the Southern Republicans. Some GOP strategists have been sensitive to the "party of no" label their side earned during the health care battle and are reluctant to reflexively defy the President on his choice to replace Stevens before the process has officially begun. In addition, given Republicans' recent opposition to using the filibuster in judicial confirmations and Democrats' still strong 59-seat Senate majority, conservative politicians who brandish the court card would run the risk of whipping their base into a lather in anticipation of an epic fight with the President, only to watch a new Justice seated with little struggle shortly before the midterms in November.

To be sure, some candidates and many interest groups eventually will use the court vacancy to raise money and highlight specific social issues. Additionally, with conservatives pushing for judicial consideration of the constitutionality of the new health law's mandate that all individuals purchase medical insurance, economic considerations will play a role in the Supreme Court debate. But right now, to Republican leaders, national security and the economy remain far stronger vehicles for the rough ride back into power.

The White House doesn't want to reignite the culture wars, so don't expect the President to select a controversial nominee. While the media coverage so far has focused on the potential drama and drawbacks of the possible contenders, Obama is actually in a position to benefit from the opportunity to name another new member of the court. Picking a new Justice is a lot like picking a vice-presidential running mate. Eighty percent of the task is finding someone who the press and the public will instantly believe is eminently qualified for the position. Twenty percent is the public-relations job of defining the choice to rev up the party base, satisfy centrists and disarm the opposition. A nominee with a compelling biography, impeccable résumé, strong presentation and demographic appeal could strengthen Obama's hand politically.

In the unlikely case that Obama chooses poorly or his team fails to execute an effective rollout strategy, a botched pick would likely be too tempting a target for conservatives to ignore. If Obama chooses well and his strategists frame the pick in the right way — and no one expects the next Justice to differ vastly in ideology from Stevens — this could end up being one of the most anticlimactic Supreme Court confirmations of the modern era.

But if the confirmation of a new Justice lacks drama, it will be an exception in a political year that is shaping up to be bloody and intense. Both sides are ready to have it out over the role and size of government and over Obama's stewardship of American foreign policy. For Republicans, and Democrats, those are battles enough.