The Fight Behind the Fight

But Bush knew exactly what he was doing, and his approach says much about why he became the nominee and not Forbes or Bauer. The right was eager for a candidate that shared its values, but could also appeal to moderates. After the Bob Dole disaster of 1996, and two terms of Bill Clinton, the right wanted a winner. Bush became a consensus candidate in part because conservatives understood what he was saying when he used the term "strict constructionist"--even if much of the rest of the public did not.

This is not to suggest in any way that Bush's nomination and eventual election was primarily about abortion. It was not. But the issue, and his handling of it, played an important role.

"When he says strict constructionist, it's a code word," said Kim Gandy, president of the liberal National Organization for Women. "I don't think that there are many layers of complication there. He has been very straightforward I think in saying to his supporters that he wants Roe v. Wade overturned. He says he doesn't have a litmus test, but it's very clear that he does have a litmus test. Out of some 200 judges he's appointed to the bench, they've all opposed choice. As far as I know, not one is pro-choice."

Gandy argues that not just abortion but a whole range of issues -- from Title IX, to affirmative action, to property rights, to birth control, to the Americans with Disabilities Act -- is at stake based on whether Bush's nominee considers himself a strict constructionist by Bush's standard. And because many key issues were decided on a 5 to 4 basis, with the departing Sandra Day O'Connor often the swing vote, much is at stake if Roberts's confirmation changes the ideological bent of the court.

Most people, however, agree abortion won't be one of the key issues. The court is solidly 6 to 3 in favor of Roe v. Wade; at most, Roberts's confirmation could make it 5 to 4. Even if the Supreme Court overturns Roe, it doesn't make abortion illegal; it would merely allow each state to make its own laws regarding abortion.

But the larger point, conservatives argue, is their philosophy that judicial qualifications and temperament and approach to the law are the valid areas of concern, not specific issues.

Conservatives lambasted Sen. Patrick Leahy (Vt.), the ranking Democrat on the Judiciary Committee, for suggesting that he might vote against Roberts if he doesn't answer specific questions about abortion.

"Just as you would not have a justice nominee who said, 'Well I wouldn't consider Brown v. Board of Education settled law,' I don't see how they could get confirmed," Leahy said in an interview on Vermont Public Radio last week. "I don't see how somebody who said that they didn't consider Roe v. Wade settled law ... I don't see how they get confirmed.''

Wendy E. Long, legal counsel for the conservative Judicial Confirmation Network, responded by putting out the following statement: "These litmus tests for Justices are completely improper. They undermine the independence of the Supreme Court, and most Americans find this playing politics with the Supreme Court repugnant. It just goes to show how out of touch these Senators are with mainstream America."

In a phone interview, Long acknowledged that when Republicans had tried to coax Ruth Bader Ginsburg to detail her personal opinion on specific issues, she assiduously refused to answer questions that could prejudge any case she might have to decide on the court. And that was the right thing to do, Long said, even though most conservatives personally dislike her and consider her to be too liberal on the court. Long said what angers her about Leahy isn't so much his intention to ask Roberts specific questions, but his assertion that he might vote against him if he doesn't like his answers.

Long says she doesn't particularly like the term "strict constructionist," but "I know what [the president] means when he uses it. He has at times used other terms that are more helpful." But what he means is "the judge will apply the laws as written and not make them up."

Asked whether this sort of judge would view Roe as inappropriately decided, she argues that abortion on demand is not in the Constitution.