Three Democrats joined Republicans as the Senate Judiciary Committee voted 13 to 5 Thursday to recommend John G. Roberts Jr. as the next chief justice of the United States, sending his nomination to the full Senate, where his confirmation is a virtual certainty.
The split among the committee’s eight Democrats reflected division among Senate Democrats as a whole. Several Democratic senators predicted that Roberts, 50, could get the support of most Democratic senators when the chamber deliberates next week.
The vote also reflected a split among Democrats over how to influence President Bush’s next nomination to the Supreme Court. Some argued it was best to endorse a candidate as qualified as Roberts; others worried that the White House would see affirmative votes as a sign of weakness.
Sen. Dianne Feinstein (D-Calif.), who has voted with the panel’s Republicans in the past, said she could not do so this time.
“I am the only woman on this committee,” Feinstein said. “And when I started, I said that was going to be my bar.”
But, she said, he did not reassure her that he would uphold women’s and minorities’ rights, notably on abortion. “He didn’t cross my bar.”
The three Democrats who voted to recommend Roberts said they were giving him the benefit of the doubt -- to “vote my hopes and not my fears,” as Sen. Herb Kohl of Wisconsin put it.
Kohl and others said that because Roberts was a conservative to succeed a conservative -- the late Chief Justice William H. Rehnquist -- the real battle over the court’s balance would come when President Bush named his choice to succeed retiring Justice Sandra Day O’Connor, often the court’s swing vote.
“If [Roberts] had been nominated, as he was originally, to replace Justice O’Connor, then his confirmation would have moved the court to the right,” Kohl said. “That would have been a much more difficult decision. It is my hope that the White House recognizes this concern when they choose their next nominee.”
Republicans said that in many ways, the vote on Roberts was more about the coming nomination than the current nominee. Sen. Lindsey Graham (R-S.C.) accused Democrats of opposing Roberts to demonstrate strength before the next nomination.
“We’re already talking about the next nominee in code,” Graham said. “It will not be easy for those [Democrats] who choose to side with Roberts, because [their party is] trying to drive down the vote numbers because of the next person to come.”
The White House has indicated that the president intends to name a nominee for O’Connor’s seat shortly after the Senate decides on Roberts -- a vote expected no later than next Thursday.
Conservative advocacy groups hailed the vote as a victory, and liberal advocacy groups described it as a defeat.
“The vote by the Judiciary Committee reflects the fact that John Roberts is an exceptional nominee with a conservative judicial philosophy -- a philosophy that represents mainstream America,” said Jay Sekulow, chief counsel of the conservative American Center for Law and Justice. “It’s encouraging that several Democrats recognized his talents and capabilities by voting for his confirmation.”
The president of the liberal National Organization for Women, Kim Gandy, said: “Those who lose their rights and liberties in the future because of Roberts’ leadership on the court will remember the senators who voted to confirm.”
All of the Democrats said their decision was difficult. Sen. Charles E. Schumer of New York, who voted not to recommend Roberts, said he and Feinstein made up their minds at 10 p.m. Wednesday in a phone conversation. In the end, Schumer told reporters after the vote, he felt the risks were too great.
“Even if he is more likely to be a Rehnquist than a Thomas, the downside of him being a Thomas outweighed the upside of him being a Rehnquist,” Schumer told reporters after the vote. “Thomas” referred to conservative Justice Clarence Thomas.
The committee chairman, Sen. Arlen Specter (R-Pa.), said the fact that several Democrats voted to recommend Roberts was a sign that the president had made a good choice -- one that might be hard to equal next time.
“When President Bush selected John Roberts, he disarmed his critics,” Specter said. “They went into this war disarmed. That’s why I would say that if he found someone of the highest caliber [for the second vacancy], he’d be doing the political process and the court and the country the biggest favor.”
After the committee’s decision, several Senate Democrats announced their voting intent. Mark Pryor of Arkansas said he would support Roberts; Barack Obama of Illinois and Hillary Rodham Clinton of New York said they would oppose him.
“It is telling that President Bush has said the justices he most admires are the two most conservative justices, Justices Thomas and [Antonin] Scalia,” Clinton said in a statement. “It is not unreasonable to believe that the president has picked someone in Judge Roberts whom he believes holds a similarly conservative philosophy, and that voting as a bloc they could further limit the power of the Congress, expand the purview of the executive and overturn key rulings like Roe vs. Wade.”
The committee Democrats who voted not to recommend Roberts said that they had no doubt about his legal qualifications but that he had not convinced them he was as committed to protecting the rights of the disadvantaged as he was to protecting the rights of those more powerful.
Feinstein said she found some of Roberts’ responses to her questions during the hearings “dispassionate” or “detached.” And she voiced concern that Roberts had several times said he had “no quarrel” with certain court decisions. She said the phrase echoed answers Thomas gave during his confirmation hearings.
“I came to believe that ‘I have no quarrel with it’ is a term of art of equivocation, frankly,” Feinstein said, noting that after Thomas was seated on the court, he appeared to reverse his position on those cases. “Judge Roberts used this phrase when discussing five topics.... So does this mean that he, too, will have a quarrel with these issues when they come before him?”
Republicans accused Roberts’ Democratic opponents of holding the nominee to singleissue tests.
“If we could look at the person before us based on qualifications, character and integrity and not require them to show an allegiance to a particular case or a cause, it would serve the country well -- because liberals and conservatives come and go, but the rule of law is bigger than all of our philosophies,” Graham said.
In fact, the possibility of political change was one reason that Sen. Russell D. Feingold (D-Wis.) cited in voting to recommend Roberts.
“History has shown that control of the White House, and with it the power to shape the courts, never stays for too long with one party,” Feingold said. “When my party retakes the White House, there may very well be a Democratic John Roberts nominated to the court.... And, in the end, it is one of the central reasons I will vote to confirm Judge John Roberts to be perhaps the last chief justice of the United States in my lifetime.”
Republicans on and off the committee said the number of Democrats who ultimately voted in Roberts’ favor should not affect the president’s pick for O’Connor’s seat.
“I don’t see a big difference between what happened here and a party-line vote. This is still partisanship,” said Leonard A. Leo, a Washington lawyer on leave as executive vice president of the Federalist Society, who has been advising the White House through the nomination process. “It just looks a little different because they are throwing in a few votes.”
Sen. Orrin G. Hatch (R-Utah), former chairman of the Senate Judiciary Committee, said: “The Democrats feel like they should have another swing vote” as a successor to O’Connor. “But if they want that, they should win the presidency.”
How they voted
The Senate Judiciary Committee voted 13 to 5 to send the nomination of John G. Roberts Jr. to the full Senate with the recommendation that he be confirmed as chief justice of the United States. The full Senate deliberates next week.
Democrats for: Patrick J. Leahy, Vt.; Russell D. Feingold, Wis.; Herb Kohl, Wis.
Republicans for: Orrin G. Hatch, Utah; Arlen Specter, Pa.; Charles E. Grassley, Iowa; Jon Kyl, Ariz.; Mike DeWine, Ohio; Jeff Sessions, Ala.; Lindsey Graham, S.C.; John Cornyn, Texas; Sam Brownback, Kan.; Tom Coburn, Okla.
Democrats against: Edward M. Kennedy, Mass.; Joseph R. Biden Jr., Del.; Dianne Feinstein, Calif.; Charles E. Schumer, N.Y.; Richard J. Durbin, Ill.
Republicans against: None
Sources: Associated Press
Los Angeles Times