Democrats Keep Rhetorical Powder Dry

Democrats offered a strikingly muted response Tuesday to President Bush’s nomination of a solid conservative to the Supreme Court -- a choice that, if confirmed, is likely to tilt the court’s ideological balance to the right for years to come.

Democratic leaders, in their initial reaction to the nomination of John G. Roberts Jr., mainly said that his record and philosophy would be subject to intense scrutiny in the weeks ahead and in upcoming Senate Judiciary Committee hearings.

Among senators, there was none of the devastating criticism that was heaped immediately on Robert H. Bork when he was nominated to the court by President Reagan in 1987 -- and later rejected by the Senate.

Roberts, nominated to succeed retiring Justice Sandra Day O’Connor, easily won Senate confirmation to the U.S. Court of Appeals for the District of Columbia Circuit two years ago.

“The president has chosen someone with suitable legal credentials, but that is not the end of our inquiry,” said Senate Minority Leader Harry Reid (D-Nev.). “The Senate must review Judge Roberts’ record to determine if he has a demonstrated commitment to the core American values of freedom, equality and fairness.”

A top Democratic strategist predicted a fight over Roberts, but said it was unlikely to be as vitriolic as if Bush had named one of the more provocative candidates being considered, such as J. Michael Luttig, another appellate judge who is a favorite of many GOP conservatives.

“It will be a big battle, but he’s no Luttig,” said the strategist, who requested anonymity.

With Republicans holding 55 seats in the Senate, about the only tool Democrats have to block the nomination would be a filibuster -- a delaying tactic that prevents a final vote unless 60 senators agree to end the debate. Republicans confidently predicted that that would not occur.

“I don’t think there is any way there will be a filibuster,” said Sen. Rick Santorum (R-Pa.).

But Judiciary Committee Chairman Arlen Specter (R-Pa.) was more cautious when asked whether Roberts was a “safe nomination.”

“Professionally, it would be hard to find someone with better credentials than John Roberts,” Specter said. “But I don’t think anything in Washington is safe.”

Democrats will be under pressure from liberal activists to press a case against Roberts.

“An initial review [of his record] has led to serious concerns about whether he will be fair, independent and will protect the rights and freedoms of all Americans,” said Nan Aron, president of the liberal Alliance for Justice. She has called on Democrats to filibuster any nominee who would tip the ideological balance of the court.

Bush made a point of consulting senators of both parties before making his choice but kept even members of his own party in the dark about his decision and its timing.

A leadership aide said Senate Democrats were divided over whether to go on the attack immediately or take a wait-and-see approach. In their initial reactions, most chose the latter.

“I generally have a policy of reserving judgment on a particular nominee prior to the Judiciary Committee conducting its review,” said Sen. Dianne Feinstein (D-Calif.). “I will keep my powder dry until the due diligence is completed.”

Sen. Charles E. Schumer (D-N.Y.) said the fact that Roberts was confirmed to the federal appeals court by a voice vote in 2003 did not necessarily mean he was a slam-dunk for confirmation to the high court, because such nominees were subject to greater scrutiny. He pointed out that Bork, several years before he was rejected for the Supreme Court, had been confirmed to a lower court post unanimously.

Schumer, one of three members of the Judiciary Committee to vote against Roberts’ appellate court nomination in 2003, said he did so because Roberts did not answer all the questions he put to him -- including one asking him to identify three Supreme Court rulings he disagreed with.

Republicans are aiming to have a vote on the nomination before the high court begins its new term in October. They plan to begin hearings in the Judiciary Committee the last week of August or the first week of September. Although lawmakers are out of town for August recess, staff members will be analyzing Roberts’ decisions and speeches and lining up witnesses, and the FBI will be updating its investigation of his background.

Democrats seem in no hurry to wrap up the debate.

“It’s going to take a fair amount of time,” said Sen. Patrick J. Leahy (D-Vt.), ranking Democrat on the Judiciary Committee. Leahy said there was no magic in the Republicans’ early-October deadline, because O’Connor has said she would continue to serve until her successor was confirmed.

Although the initial attention will focus on the Judiciary Committee, another group of senators will be crucial: the seven Republicans and seven Democrats who defused a tense conflict over lower-court judicial nominations in May. In the agreement struck by the “Gang of 14,” Republicans agreed not to support their leaders’ effort to ban judicial filibusters and Democrats agreed to withhold support for judicial filibusters -- except in “extraordinary circumstances.”

A key question has been whether Bush would choose a nominee so ideologically unacceptable to Democrats that they would deem it an “extraordinary circumstance” justifying a filibuster. After Roberts’ nomination, many members of the group of 14 were reluctant to comment. The senators are scheduled to meet to discuss the matter Thursday.

Sen. Ben Nelson (D-Neb.), a leader of the group, said he hoped that delaying tactics would not be used. “An up-or-down vote is now looked at as the appropriate way to handle” judicial nominations, Nelson said.

And Democrats acknowledge that there is some risk if they are seen as obstructing a vote for political reasons. It was in deference to that political reality that Democrats’ initial response was muted.

“What people don’t want to see is bitter partisanship,” said Jim Manley, Reid’s spokesman. “We’re taking a more statesmanlike approach today. There’s more to say tomorrow.”

Sen. Trent Lott (R-Miss.) said he believed senators of both parties were weary from the fight over the filibuster.

“The atmosphere has changed here,” Lott said. “The outside groups are dying for a bloodbath ... but I don’t think the Senate is.”