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Court battle is a whole new ball game

By Gloria Borger, CNN Senior Political Analyst
  • Gloria Borger says people should expect a different debate on upcoming court nomination
  • She says Tea Party leads to GOP focus on government size, not social issues
  • Democrats focus on Supreme Court ruling on corporate spending on campaigns
  • She says President Obama's nominee is likely to be confirmed

Editor's note: Gloria Borger is a senior political analyst for CNN, appearing regularly on CNN's "The Situation Room," "John King, USA," "Campbell Brown," "AC360°" and "State of the Union," as well as participating in special event coverage.

Washington (CNN) -- It was no surprise over at the White House that Justice John Paul Stevens has decided to retire from the court after nearly 35 years. And they're clearly ready with a list of names -- some fully vetted and even interviewed by the president -- after the Sonia Sotomayor choice last spring.

They're even confident that whomever they nominate will be confirmed. There will be debate, of course. (Does the Senate ever do anything without debate?) But success, barring any unforeseen developments, is also a good bet.

The political dynamic has changed dramatically since Sotomayor was grilled last summer. The major development: The Tea Partiers have grown into a full-fledged political movement. The passage of health care reform has swollen their ranks with anti-big government, anti-big spending believers. They're largely driven by questions about the role of government, and less by social issues. And they now hold great sway among Republican ranks.

As for the Democrats, they've got a big Supreme Court decision that sticks in their collective craw: a 5-4 ruling that loosened restrictions on corporate contributions to political campaigns. Obama expressed his displeasure to members of the court directly as they watched him deliver his State of the Union speech. Democratic senators will portray the decision as evidence that this conservative court is siding with corporate interests against the rights of average Americans. What's more, they will say, this is conservative legal activism run amok.

So, as a new nominee for the high court comes before the Senate, the debate could look very different from ones we have seen before. Don't get me wrong, Roe v. Wade will of course be mentioned. But since no nominee will say anything much about it anyway -- aside from the usual I-believe-in-precedent formula -- the move afoot on both sides is to argue in a different arena.

In this Tea Party world, for instance, the questions the GOP might want answered: Is health care reform constitutional? Should individual states be able to opt out? Should the federal government have the ability to regulate property rights?

In other words, more questions about federal power, and probably fewer about those wedge cultural issues -- like abortion -- that used to drive the court confirmation process. It's a simple reflection of the extent to which the energy on the right has switched from social conservatism to economic conservatism.

The Democrats, in the meantime, will seek to portray their choice as someone who is on the side of the average Joe -- and not corporations or big business. "This court made corporations into people," says one senior White House adviser. "We will be pointing that out."

So the cultural issues may get a bit of a rest this time around. It was no coincidence last week, for instance, that on the very day Stevens announced his retirement, neither Sarah Palin nor Newt Gingrich took to the stage at the Southern Republican Leadership Conference to blast the possibility of a liberal justice replacing a liberal justice.

Rather, the key speakers stuck to their knitting -- the "big government takeover" of health care, the huge deficit, the foreign policy "coddling our enemies, alienating our allies" mantra. It's working really well as a way to unite the party's base -- and draw in independents -- so why wander off script now? Independents aren't fond of letting social issues get in the way of their political decision-making, and they're the ticket to success.

Besides, if President Obama chooses a more mainstream nominee, Republicans would be unlikely to mount a successful filibuster, anyway. There is something to be said for losing smart. But, as they say at the court, there may not be much precedent for it.

The opinions expressed in this commentary are solely those of Gloria Borger.