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Civility, consensus will likely be scarce in fight over new justice

WASHINGTON—The fight for Sandra Day O'Connor's swing seat on the Supreme Court probably will be an ugly one in which consensus and comity are all but impossible.

First, her seat is the pivot point of a closely divided court. A more conservative replacement could change decisions on abortion rights, the place of religious expression in public life, and environmental regulation, all emotional flash points in a politically polarized country.

Second, religious conservatives as well as supporters of abortion rights demand a litmus test on abortion, a stance unheard-of in earlier nominations.

Finally, the contest is the first since the opinion-a-minute world of bloggers and the Internet have joined cable TV and talk radio in stirring the passions of both right and left. It's a political echo chamber that demands confrontation, not compromise, to keep people tuning in or contributing money.

"It will not be pretty," said Dennis Goldford, a political scientist at Drake University in Iowa and author of a recent book on the ways courts interpret the Constitution.

O'Connor's decision on a hazy hot Friday before a holiday weekend surprised official Washington, which had been gearing up for the possible retirement of ailing Chief Justice William Rehnquist. That may come soon as well, but his departure would trade a conservative for a conservative, meaning little substantive change.

O'Connor was a swing vote, however. She sometimes sided with the conservatives, sometimes with liberals. If President Bush follows through with his campaign promise to name someone in the purely conservative vein of Antonin Scalia or Clarence Thomas, he'd shift the court to the right.

Many Democrats urged Bush on Friday to consult them before making a pick. They said Ronald Reagan and Bill Clinton did that and then nominated candidates whom both parties could back. Their choices won broad support.

Bush aides said the president has consulted Sen. Harry Reid, D-Nev., the party leader in the Senate, and would speak with Sen. Patrick Leahy, D-Vt., the senior Democrat on the Senate Judiciary Committee.

But listening to Democrats is one thing; heeding their advice is another. Especially when Bush and both political parties are barraged by interest groups whose demands, particularly on abortion, make consensus all but unreachable.

Christian conservatives insisted Friday that Bush nominate someone who'd vote to restrict or outlaw abortion. They noted that they voted for him in large numbers in 2004—the so-called values vote—and want their due.

"It is time to make good on those campaign promises, Mr. President," said Troy Newman, the president of the anti-abortion group Operation Rescue.

"You have been given a mandate to end abortion in our nation by the American people who cast their votes for you. You have been placed in power for such a time as this. Now it is time to fulfill your obligation to God and to those who elected you, and appoint a staunchly pro-life judge to the Supreme Court."

The Rev. Patrick Mahoney, the director of the Christian Defense Coalition, said O'Connor's retirement was a chance to roll back abortion that shouldn't be missed. " If she's gone, there is an opportunity to get a ban on partial-birth abortion," he said. "Now there may be an opportunity to make some inroads in the abortion debate."

The left insists on an abortion benchmark for any nominee from the opposite perspective.

"We can never let her be replaced by a justice who does not respect the right to privacy and Roe v. Wade," said Sen. John Kerry, D-Mass., his party's 2004 presidential nominee.

The Center for Reproductive Rights also insisted that senators ask the eventual nominee how he or she would rule on cases involving abortion. "They need to vote with eyes wide open," said Nancy Northrup, the center's president.

Egging on the atmosphere of confrontation will be the bloggers, talk radio hosts, cable TV anchors and interest groups who depend on fireworks for attention, ratings and money.

From the left, liberal activist David Sirota sent out an e-mail Friday charging that Bush would nominate a "wild-eyed lunatic." NARAL Pro-Choice America, an abortion rights group, said "the battle over the future of the Supreme Court could be won or lost within the next two weeks," and sought contributions from $50 to $1,000.

From the right, C. Boyden Gray, a former White House counsel who heads a group that backs conservative judicial nominees, charged that liberals would attack almost any Bush nominee "in hysterical terms" in part because they're backed by the pornography industry. Another group, Progress for America, vows an $18 million campaign to back a Bush nominee and seeks contributions ranging from $100 to $5,000.

"Grass-roots advocacy groups on both sides have been mobilizing," said Goldford, of Drake University, adding that "this will be the first major Supreme Court appointment in the cable TV talk show, Internet blog era." The result, he said, "is going to be horrible."

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(c) 2005, Knight Ridder/Tribune Information Services.

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