High Noon for High Court

Like vast armies taking up positions on the eve of battle, interest groups on the right and left are readying for a fight over President Bush’s nomination of a successor to Supreme Court Justice Sandra Day O’Connor.

Both sides agree that the battle is likely to be fierce. The stakes are high: O’Connor has been one of the court’s swing voters whose views determine how cases are decided.

The debate over her replacement will focus on some of the most divisive issues before the nation: abortion, gay marriage, religious symbols in public places. It is likely to dominate Washington’s agenda -- and the media’s -- for two months or more.

But in the middle of the storm, like civilians caught on a battlefield, much of the nation may wish that the whole thing would just go away.

“This will be the Super Bowl of polarization for ideological interest groups,” said pollster Andrew Kohut, director of the Pew Research Center. “But for most of the country, it may just look like another partisan battle in Washington.”

Abortion, gay marriage and religion may be hot-button issues, prized by interest groups and political consultants for their ability to mobilize people to vote and donate money. But most Americans consider them less pressing than the war in Iraq or the state of the economy, and recoil from the acrimony of the debate.

“The rhetoric is going to be terrible,” predicted Patricia McDonald, a semiretired lawyer in Leawood, Kan. “Cable television is filled with talking heads who get paid to talk like that, to take the most extreme viewpoints.... But in the end, we don’t get to vote about this. Life will go on.

“I don’t think this is going to be nearly as divisive as the presidential campaign,” she added. “Even then, we had a lot of disagreement, but I don’t think I met more than two people who really got upset about it.”

An increasing number of political scientists agree with her. Americans, they argue, aren’t as polarized as they look.

On election day, the United States may divide into a 50-50 nation -- or, as happened last November in the choice between Bush and Sen. John F. Kerry, 51-48. But even on the most hotly debated issues, most Americans prefer a position somewhere in the middle.

Most don’t want to outlaw all abortions, polls show, but they’d like to see a few more restrictions. Most don’t approve of same-sex marriage, but they’re willing to consider other legal rights for gays.

“There’s a difference between division and polarization,” said Morris P. Fiorina, a political scientist at Stanford University’s Hoover Institution. “We are a closely divided nation -- but we aren’t all that deeply divided. In a battle like this one, you’re listening to 10% on each side scream at each other.”

The problem, Fiorina and others say, is that the American political process has become polarized -- increasingly forcing voters to choose between one extreme and the other, leaving out the middle.

The battle over Bush’s impending Supreme Court nomination will combine several of the factors that have made politics so divisive.

It is likely to focus on controversial social, cultural and religious issues. It will culminate in a yes-or-no question -- should the nominee be confirmed, or not? -- without much room for middle ground. And the debate will be spearheaded by interest groups on both extremes -- groups that sometimes appear to have a vested interest in polarization because it increases their influence.

“You’ve got large amounts of what we used to call issue advocacy money -- money that exists and waits to be deployed in the service of polarization,” said Kathleen Hall Jamieson, director of the Annenberg Public Policy Center at the University of Pennsylvania. “That’s a new factor.”

William A. Galston, who was an aide to former President Clinton and now teaches at the University of Maryland, said: “It’s an open question whether they are raising the money to fight the battles or fight the battles to raise the money. This is an infernal machine that has taken on a life of its own.”

The coming battle includes several other features that could make the conflict even sharper.

“You have at least two presidential prospects in the Senate ... whose self-interest lies in gaining as much visibility as they can in a way that will activate their core constituencies,” Jamieson said, citing Sens. Hillary Rodham Clinton (D-N.Y.) and Joseph R. Biden Jr. (D-Del.).

That’s not all. This will be the first Supreme Court confirmation battle in 11 years -- which means it will be the first such battle of the Internet age, with its legions of bloggers, and the first of the new age of media polarization -- with phalanxes of partisan commentators on competing all-news cable channels.

It also will be the first confirmation battle over a Supreme Court nominee during the current era of conservative Republican control of both houses of Congress as well as the White House.

Many conservatives have targeted the judiciary as the last branch of the federal government they hope to dominate. House Majority Leader Tom DeLay (R-Texas) has derided the federal courts as “the left’s last legislative body.”

“Conservatives want a conservative justice, and they feel betrayed by past nominees that weren’t contentious,” said Jamieson. “That sets up the likelihood that this is going to be hard-fought and divisive.”

But Galston, Clinton’s former aide, said his party was partly to blame.

“Beginning in the 1950s, the Democratic Party convinced itself that, especially on social issues, the principal vehicle of advance would be the court,” he said. “As a result ... the principal focus of many interest groups was centered on the court. Well, there’s a Newton’s Law of politics: Every action generates a reaction -- frequently an equal and opposite one. The interest groups on the conservative side have become highly court-centered as well.”

The history of the abortion issue -- especially the 1973 decision that said states could not prohibit abortion -- is a case in point, Galston said. “Whatever its judicial merits, Roe vs. Wade has led to an intensification of polarization and bitterness in American discourse over social issues,” he said.

“In 1972,” before Roe, “neither party platform even mentioned abortion,” he noted. “In 1976, each mentioned it in a nuanced way.... By 1984, not only was all nuance gone, but people who disagreed with the established line of each party were anathematized.”

Divisive partisan battles produce another unwelcome result, Galston said: alienated, disaffected citizens.

“There’s a very large share of the American electorate that feels unrepresented by this polarized politics,” he said. “The popularity of figures like [Republican Sen. John] McCain [of Arizona] and [former Secretary of State Colin L.] Powell represents a yearning for leadership by the underrepresented middle who always lose out to the extremes.”

If Bush’s nominee is a controversial hot-button conservative, Galston warned: “We could see an orgy of self-destruction. It will bring the rest of the nation’s business to a halt for an extended period.”

It doesn’t have to be that way.

“It’s not inevitable,” said C. Michael Comiskey, a Supreme Court scholar at Pennsylvania State University at Fayette. “If you look at the confirmation process since [1987], three of the four have been consensual, not ‘conflictual’.... It’s up to presidents to decide whether Supreme Court nominees are conflictual.”

In other words, he said, Bush could consult with senators in both parties and nominate a judge who would not polarize the debate -- although that would mean disappointing some of the conservative groups that are demanding a judge in the controversial mold of justices Antonin Scalia and Clarence Thomas.

And even a hard-fought confirmation fight doesn’t need to be a bad experience, Jamieson suggested.

“Contentious isn’t bad,” she said. “What’s bad is demagogic-contentious. What’s bad is mindless polarization.”