Abortion is obviously a heated topic, as both Victor and Chris' posts have shown, so considering that there isn't even a concensus on this blog about the issue, it may be interesting to see what messages President Bush is sending out on abortion with his supreme court nominees.
One of Bush's campaign promises was to nominate judges in the mold of Scalia and Thomas--meaning strict constructionists/originalists. With regards to actually legislatively fighting to overturn Roe vs. Wade, which would be a divisive, controversial and probably a politically unpopular move, Bush has indicated that he feels the country simply isn't ready
. While this may obviously just be political posturing, it is certainly an indication that Bush is not in the Santorum/Brownback camp on abortion. Consequently, the other less confrontational avenue of placing limitations on abortion would be to place justices on the supreme court whose philosophy would cause them to be critical of Roe vs. Wade. While some originalists/constructionists may not even believe in a right to privacy, it is also quite possible that judicial conservatives who do believe in a such a right still feel Roe is wrong on its merits (even some minimalists and liberals feel the ruling is on tenuous ground).
Thus, Bush's job if he were looking to overturn Roe vs. Wade would be clear, appoint judges who he could count on with regards to overturning the decision. So far, looking at Bush's first pick and the speculation over the next one along with possible future picks, it appears Bush may not be dwelling solely on overturning Roe vs. Wade. While Roberts has called abortion a 'tragedy' (though many who are pro-choice such as Senator Kerry have made similiar remarks) he does still recognize a right to privacy and even believes it can be applied to uphold Griswold. Roe is of course different than Griswold, and the argument can be easily made that the right to privacy does not extend to Roe while it does to Griswold. Even if Roberts would overturn Roe however, he would still only keep the most recent count on the court, which was 6-3 in favor of Roe.
O'Connor's replacement would then be the next step, and if it was a justice who would overturn Roe, there would still be a 5-4 majority in favor of Roe (unless Roberts manages to persuade Justice Kennedy--which is unlikely but still possible). However, with the names that seem to be floating around currently--Owen, Gonzales, Thompson, Estrada--there is no solid paper trail which would indicate that any of those possible nominees would definitely overrule Roe. Even Owen's most controversial ruling on the issue has been one where she did not allow a bypass of a parental notification law which had already been passed by Texas, and which has widespread support around the country. While this may indicate that Owen is a conservative on abortion, it certainly doesn't even definitively place her to the right of Kennedy. All the other 3 names, along with a whole host of other less well-known names, have even skimpier records on which to base such a characterization. The other possible nominees who may have a sufficient paper trail showing they would overrule Roe--Luttig, McConnell, Janice Rogers Brown, Alito, Garza--would all face bruising nomination fights especially because it is known they would probably overrule Roe. While Bush was particularily clever with regards to deceiving the press and public over who the first nominee was until the last minute when he named Roberts, it does appear that he wants another Roberts-like easy confirmation, and thus the latter groups' chances may be slim. However, even if any of them is nominated, confirmed, and then does vote in a way to overrule Roe (three big ifs), the court would still be one vote away from overturning Roe.
Assuming a hypothetical 3rd vacancy, in the event it was one of the court's more liberal justices (Ginsberg and Steven's names have been floated) the pressure from both sides of the spectrum would be overwhelming. While social conservatives would be drooling over the possiblity of finally overturning Roe, many liberals, moderates and likely much of the media and academia would press for a moderate. If you've already heard cries that Bush should try to maintain balance on the current court, the departure of a liberal would only amplify those. This pressure would be further complicated by the fact that Bush obviously would not have to run for another term and both he and Rove seem to be big proponents of Alberto Gonzales. Gonzales has been a lightning rod for controversy amongst conservatives who fear he's neither an originalist or anti-roe. Even if the President does not nominate Gonzales for a hypothetical 3rd seat, a nomination like Edith Joy Clement or Larry Thompson could likely not result in the 5 vote majority to overrule Roe. Thus, while much of this is based on rumors, looking at Bush's actions so far and the nominees who've also been listed as possiblities, its possible that republicans could see 3 new justices appointed without any change in the standing of Roe as precedent(If Bush had 4 vacancies to deal with--an outside possibility-- much of these predictions would probably change).
While constitutional law is certainly much, much more than just abortion, the President has already proved in the past that he is a very shrewd political thinker. His choice of nominees, past, present and future, may be indicative of the fact that he is purposely overseeing a major rightward shift on the court without necessarily overturning Roe.