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Leading Democrat to Vote No on Roberts

Times Staff Writer

Senate Minority Leader Harry Reid, the chamber’s top Democrat, announced Tuesday that he would vote against confirming John G. Roberts Jr. as chief justice of the United States, citing concerns that his heart was not as big as his intellect.

Reid was the first Democrat to formally state his position on Roberts’ nomination to lead the Supreme Court. The Nevada senator said his decision should not be seen as a party position and that other Democrats should vote as they saw fit.

However, because Reid is a centrist who opposes abortion, his opposition was widely seen as a signal that most Democrats would probably come out against the 50-year-old federal appeals court judge.

“No one disputes his academic prowess, his mental power. He’s a very smart man,” Reid said of Roberts. But he added, “I have too many unanswered questions about the nominee to justify a vote confirming him to this enormously important lifetime position.”

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During 20 hours of questioning by the Senate Judiciary Committee last week, Democrats repeatedly asked Roberts about his commitment to civil rights, citing comments he had made as a young lawyer in the Reagan and George H.W. Bush administrations that Democrats considered insensitive or flippant -- especially in reference to women and minorities.

In his remarks Tuesday, Reid mentioned a memorandum in which Roberts had referred to illegal immigrants as “illegal amigos” and said that Roberts’ failure to repudiate that phrase played a role in his decision.

“Through all this I came to the realization that I’m not too sure his heart is as big as his head,” Reid said.

Roberts faces two Senate votes, one by the Judiciary Committee on Thursday and one by the full Senate next week. With Republicans holding 55 of the Senate’s 100 seats, Democrats have only one tool to stop a nomination: the filibuster. But they have indicated that they will not use it this time.

Reid acknowledged that Roberts would be confirmed no matter how many Democrats voted against him.

“The arguments against him do not warrant extraordinary procedural tactics to block the nomination,” Reid said, referring to the filibuster. “Nonetheless, I intend to cast my vote against this nominee.”

Reid and three other Senate leaders are to meet this morning with President Bush to discuss who might replace Justice Sandra Day O’Connor, who in July announced her intention to retire.

Some Democrats said the White House should see Reid’s opposition as a message that Democrats will not capitulate if they consider Bush’s next pick for the court unacceptable.

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“At the end of the day, the president should know: If he sends someone who is an ideologue or somebody who is an extremist right-winger, that person is going to have a very, very difficult time getting through the Senate,” said Sen. Ken Salazar (D-Colo.), one of seven Democrats who joined with seven Republicans earlier this year to preserve the minority’s right to filibuster judicial nominees.

The White House expressed disappointment in Reid’s decision. “In confirming recent nominees like [Ruth Bader] Ginsburg, [Stephen G.] Breyer and [Antonin] Scalia, senators based their decisions on the qualifications of the nominee, not on whether or not the person doing the nominating was in their same party,” White House spokeswoman Dana Perino said. “The public does not want to see the Supreme Court become an extension of partisan politics.”

Senate Republicans suggested that the move was motivated by partisanship.

“To me, a no vote is a triumph of partisanism and special interests over the merits,” Sen. John Cornyn (R-Texas) said outside the Senate chamber. “My hope would be that it would not degenerate into partisanship. But that appears to be the road we’re headed down.”

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Since the hearings ended last week, Democrats have been weighing two strategies: Vote in favor of Roberts because he is qualified and less ideological than many had feared, or vote against him because he is more conservative than they would like.

On Tuesday, most said they were undecided.

“I’ll make my own decision. I’m weighing a lot of things,” said Sen. Dianne Feinstein (D-Calif.), who as a member of the Judiciary Committee will vote twice on the nomination.

However, a few Democrats took advantage of Reid’s announcement to drop hints about their votes. Sen. Edward M. Kennedy of Massachusetts described a vote for Roberts as a “leap of faith” in the Bush administration.

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“There are those who took the leap on the Iraq war. There were those who took the leap in terms of taxes. And they’re being invited again to take the leap in terms of Judge Roberts,” Kennedy said. “I don’t think I’m going to be among them.”

Senior Senate aides said they expected about a dozen Democrats, mostly senators from Republican-majority states, to back Roberts.

Sen. Ben Nelson (D-Neb.) suggested he would be one of them. “I haven’t seen anything that would cause me to vote against John Roberts,” he said. “We have a couple more days, but I’m not expecting anything to come out of the woodwork.”

Some Democrats have argued that a no vote would demonstrate determination to filibuster the president’s next nominee if he picked someone more ideological than Roberts.

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But that strategy might backfire, warned Leonard Leo, a Washington lawyer who has advised Roberts and the White House on judicial nominations.

“I think the Democrats have decided that their strategy is going to be to keep the margin of victory as low as possible to condition the environment for a big fight on the next nomination,” Leo said. “The [White House] response is very simple: to nominate whoever we want in the future, because Democrats will oppose whoever we nominate.”

When Bush selected Roberts in July to succeed O’Connor, Reid praised the nominee as a “very nice man” and “someone with suitable legal credentials.”

But Charles Cook, who edits the nonpartisan Cook Political Report, said that even if Reid had been initially inclined to vote for Roberts, as leader of the minority he needed to represent the position of Senate Democrats as a group.

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Cook said that confirming Roberts might create more of a problem for the White House, because Roberts deeply impressed both parties with his poise and expertise.

“What are they going to do for an encore?” Cook asked. “Anyone else they choose is going to pale in comparison.”

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Times staff writer Richard Simon contributed to this report.

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