Let’s assume for a moment that John Roberts is confirmed. What happens

next in the battle for the Court? I suspect some of even the most liberal

Democrats may vote for Roberts. That would be a clever strategy. If

Democrats generally agree that Roberts is a fine and moderate fellow, it

will be that much more powerful a statement when they turn in unison

against the next nominee. The Dems will say, “See, we went along with

Roberts because he was a genuine moderate. But this Luttig (or whoever) is

totally unacceptable. We Democrats proved we could be fair with

Roberts. It’s Luttig (or whoever) who’s the problem now, not us.”

That would be a good strategy for the Democrats, because they know that

Rehnquist is bound to step down not too long after Roberts is confirmed. So

the next nomination is where the real fight to control the Court will take

place. Replacing Rehnquist with another strong conservative will not be a

“gimme.” The Democrats will back Roberts, and then go all out to turn the

Renquist seat into the O’Connor seat. They will use their cooperation on

Roberts as a lever against the next nominee, whoever it may be. The

Democrats will turn nice now, so they can be nasty later. And we’re

running out of good conservatives without a paper trail. So the next fight

will be the one that really determines the future of the court.

Then there’s the question of Justice Scalia. If it looks like Hillary (or

some other Democrat) has a real chance to win next time, there may be

pressure for Scalia to step down in time for President Bush to replace

him. Otherwise, given Scalia’s age, the Court could shift radically left

under the next president. Then there’s the question of Justice Kennedy’s

unfortunate tendency to “grow” in office. Maybe Roberts can pull Kennedy

back to the right. Yet Kennedy may continue to “grow” left, partially

neutralizing the effect of Roberts. These seem like some of the key

post-Roberts challenges. In short, the Roberts confirmation is looking

good, but let’s not get cocky. The larger battle goes on.