Much at Stake for Democrats in Confirmation Hearings

For Democrats, more is at stake in the confirmation hearings scheduled next week for John G. Roberts Jr. than the fate of the nominee for chief justice -- more at stake, even, than the direction of the Supreme Court.

The Democratic Party, still hurting from losses in the last three national elections, is trying to revamp itself before the next one in 2006. And while much public attention is focused on the ravages of Hurricane Katrina, the nomination hearings offer an opportunity for Democrats to showcase the values and ideas of their party in ways they hope will generate new electoral appeal.

“The Democrats think there’s an outside chance they can win the Senate back [in the 2006 elections], and maybe the House,” said G. Terry Madonna, director of the Center for Politics and Public Affairs at Franklin & Marshall College in Lancaster, Pa. “The Democrats have a chance here to present themselves as the champion of a series of rights and liberties.”

They also have a chance to capitalize on the criticism of the federal relief effort for Hurricane Katrina, pressing their argument that the response demonstrates that the Republican vision of limited government has failed the country.

“While Democrats know they can’t defeat Roberts, there will be a certain passion in their questions, given the events of the last week,” said Marshall Wittmann, a former aide to Sen. John McCain (R-Ariz.) who is now a senior fellow at the Progressive Policy Institute, a centrist Democratic think tank. “The bottom line in the debate over Roberts’ nomination and in the Katrina disaster is the role of government in our society.”

Democrats know that with Republicans in control in the Senate, they have little chance of blocking the confirmation of Roberts, who initially was selected by Bush to succeed Justice Sandra Day O’Connor. The Democrats could resort to a filibuster, but that tactic could easily backfire with the public. Not only would it reinforce the GOP’s attacks on them as obstructionist, but it would be seen by many as highly partisan at a time of national emergency.

Moreover, Bush’s decision to replace recently deceased Chief Justice William H. Rehnquist with Roberts, a like-minded conservative, effectively postpones the battle over Democrats’ main concern -- the court’s political balance -- until the next nomination. So instead of trying to defeat Roberts, Democrats are likely to use the televised hearings that begin Monday to accomplish two more modest goals: to retool their party’s message and to set the stage for the struggle over O’Connor’s successor.

“More than anything else, they want to lay down markers for what would be acceptable or unacceptable in the next vacancy,” Wittmann said. “That means there will be an intensification of the questions they will ask Roberts because they know they will be sending signals to the administration about the next nomination.”

Fortunately for the Democrats, hearings on Supreme Court nominees often are about lofty notions -- such as freedom and constitutional rights -- that appeal to many voters. Unfortunately for the Democrats, they also tend to focus on hot-button topics -- such as abortion and gay rights -- that polarize voters.

The key for Democratic senators during the hearings will be to talk more about the loftier matters than controversial subjects, said Lanny Davis, who served in the White House as legal counsel and crisis manager for President Clinton.

“As important as abortion is, it’s not a value. It’s an issue,” Davis said. “The underlying value is individual liberty.... We shouldn’t make Judge Roberts about specific issues; we should make it about specific values.”

Davis said one of the long-term problems plaguing Democrats is that Republicans have claimed certain values -- like individual liberty and judicial restraint -- as GOP values. Davis argued that Democrats should reclaim those values.

“I want the Democrats to use ... Roberts’ hearings to reestablish our commitment to certain values that I believe are liberal values that have been stolen by the conservatives,” he said.

In practice, that means Democrats are more likely to talk about the right to privacy than the right to an abortion. And it means they will probably stress the importance of civil rights while steering clear of debates over affirmative action.

The strategy of using the hearings to broaden their appeal holds some dangers for Democrats, warned Paul Freedman, a political scientist at the University of Virginia.

“Since the last election, they have made a conscious effort to frame their positions in terms that will appeal to a broad cross-section of Americans,” he said. “One of the reasons this is risky for Democrats is that they also need to satisfy their own base, and Senate Democratic leaders can’t afford to be seen by their base as capitulating. So, you may see the gloves come off a bit.”

But Madonna, the analyst at Franklin & Marshall College, said that considering the hearings would be held during a time of national crisis, Democrats would have to strike a balance between appearing tough and appearing partisan.

“The hurricane might make it a bit less vitriolic,” Madonna said. “I just don’t think the American people are ready for a televised slugfest.”