The Democrats' dilemma

Faced with second Supreme Court nomination this fall, senators ponder vote on Roberts

September 19, 2005|By Gwyneth K. Shaw | Gwyneth K. Shaw,Sun reporter

WASHINGTON — WASHINGTON: Judge John G. Roberts Jr., who gave away little during four days of Senate testimony last week, has put Democrats in a quandary. Should they oppose a Supreme Court nominee they can't stop? Or vote for a conservative jurist whose true intentions seem impossible to read?

Roberts now presents a different dilemma for Democrats than he did after he was tapped to replace retiring Justice Sandra Day O'Connor in July. The death of Chief Justice William H. Rehnquist, whose seat Roberts would take, means President Bush gets another Supreme Court nomination this fall.

Democrats might choose to vote for Roberts, to show that not every Bush nominee will automatically draw their opposition. Or they might oppose him as a warning to Bush that a more conservative choice next time might prompt a filibuster.

"At this point, it continues to be every Democratic senator making up his or her own mind," said Sen. Richard J. Durbin of Illinois, a Democratic member of the Judiciary Committee. "It's a hard decision because as skillful as John Roberts is, he's also been very skillful at not answering questions."

There are 55 Republican senators, more than enough to guarantee Roberts' confirmation when his name is brought before the full Senate this month. If Democrats were to use a filibuster to try to stall the nomination of Bush's next pick, it would take 60 votes to cut off debate, unless Republicans succeed in changing Senate rules, as they have threatened.

During the hearing last week, Roberts repeatedly spurned efforts by Democratic senators, and a few Republicans, to get him to tip his hand on issues such as abortion, civil rights, executive power and women's rights. Roberts, a federal appellate judge since his appointment by Bush two years ago, said he was not an ideologue and offered no direct evidence that he would be a justice in the mold of the court's most conservative members, Antonin Scalia and Clarence Thomas.

If Roberts, 50, is confirmed, he would be the youngest chief justice in two centuries - and could serve for decades, a point raised frequently during the hearings.

Sen. Joseph R. Biden Jr., one of Roberts' most insistent interrogators, said he was torn about how he would vote. The Delaware Democrat, who has said he might run for president in 2008, said he had no real idea where Roberts would fit in on the current court.

"I look at his writings, and what he said, and they are - at best - disturbing," Biden said. "If he turns out to be Scalia, and not Rehnquist, and the next one turns out to be Rehnquist, then your life has changed."

Both sides know that O'Connor has evolved into the court's swing vote. She has also frustrated conservatives by ruling that a constitutional right to privacy extends to abortion. Roberts said he believed the right to privacy could be found in the Constitution, but would not say much more.

Wake Forest University political scientist John Dinan said Roberts' testimony - described by some as brilliant - had complicated the choice for Democratic senators. "It made things worse, in the sense that it made it tougher for them to cast a no vote," he said.

The political calculation they face is stark, he said. One option is to cater to liberal interest groups, which have pushed hard for Roberts' defeat and are a key Democratic constituency.

Another option would be to conclude that the public sees little in Roberts to disqualify him and vote to confirm him, leaving the big fight over Supreme Court nominees for the future and avoiding the "obstructionist" label.

"It's probably a different strategy depending on what type of Democrat you are and what your situation is. For the Democrats who are in any way in a re-election contest in 2006 and in moderate states, I think their calculus is going to be to vote yes here," Dinan said. "For the many Democrats who are not facing re-election anytime soon, they're more free to send a signal of `No on this one, and let that be a lesson to you."'

Following a party strategy adopted before Bush picked Roberts, no Democrat has stepped forward to say how he or she would vote. That's expected to change tomorrow, when the senators hold their private weekly luncheon.

Dinan said an announcement by Biden or some of the other 2008 contenders could embolden other senators to make their choice.

"If some of the real leaders in the party and leaders on the Judiciary Committee step out [in support of Roberts], that can give cover for others to cast a yes vote," he said. "I think the knowledge that there will be a second confirmation hearing coming up really does affect this on balance. It really does increase the likelihood that people can vote yes."

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