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Analysis: Replacing Justice O'Connor

Bush faces different circumstances now

By Bill Schneider
CNN Political Unit

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Bill Schneider is CNN's senior political analyst.

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George W. Bush
John Roberts
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WASHINGTON (CNN) -- President Bush's decision to nominate John Roberts for chief justice solves one political problem -- and creates new ones.

The immediate challenge was to avoid a big fight.

Bush is dealing with immense problems right now, and the debate over what went wrong after Hurricane Katrina is just beginning.

The President's political capital is depleted. He faces a wary Congress and a more aggressive Democratic opposition. His critics would have put up a fierce resistance if he had picked a more controversial nominee for chief justice.

Roberts raises the fewest political problems. His name has been out there for two months. There has been extensive reporting on his background and qualifications. After all that, his confirmation still seems likely.

Moreover, Roberts' judicial views seem to match Rehnquist's. He clerked for Rehnquist and regards the late chief justice as his mentor.

Roberts replacing Rehnquist as chief justice -- one staunch conservative for another -- would not appear to change the balance on the high court.

The O'Connor seat is another story. She is a swing vote. That's why there was so much attention to the choice of her replacement in July. And why liberals were apprehensive about replacing O'Connor with Roberts: it would have shifted the balance on the court to the right.

All that apprehension now returns with the debate over Bush's next choice.

Conservatives are determined to change the balance on the court. They were a little nervous about Roberts themselves, given his past statements about Roe v. Wade and his pro bono work for a gay rights group.

Bush will face the same pressure from the right as he did in July -- not to nominate someone whose reliability is in doubt.

Bush may be tempted to nominate the first Hispanic justice, his close friend Attorney General Alberto Gonzalez, but conservatives have already made their objections to Gonzalez clear because of his abortion rulings.

As Bush moves once again to replace O'Connor, he will find that things are different now than they were in July.

He is in a weaker political position. His job rating had already declined to the lowest point in his presidency even before Hurricane Katrina struck. His administration has been thrown on the defensive, and his defenders are embattled.

If he were to name a far right replacement for O'Connor, Democrats would find it easier to mount a filibuster than it was two months ago. And it would be harder for the administration to muster 60 Senate votes to confirm.

Add this to the mix: President Bush has already nominated a white male to the court. There is now more pressure to nominate a woman or a minority candidate to replace O'Connor.

The pressure comes from within his party and within his own family. That could have the effect of limiting the President's choices even further.

The president's elevation of Roberts to the chief justice nomination was an adroit political move that averted a damaging controversy.

But his next nomination will be tougher and more sensitive, politically, than his original choice of Roberts in July.

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