Roberts Battle Moves Ahead

Posted July 20, 2005 at 6:49pm

In the wake of John Roberts’ nomination to the Supreme Court, Senate Democrats moved on two fronts Wednesday, with some calling for a large number of documents and raising other process questions as others made plans for addressing agenda items beyond the Roberts nomination.

Judiciary Democrats took the lead in questioning how Republicans would handle the nomination process, invoking the first judicial filibuster fight two years ago that focused on the administration’s refusal to turn over a nominee’s writings while working at the Justice Department.

Sen. Charles Schumer (D-N.Y.), one of three committee Democrats to oppose Roberts’ nomination to the appellate court in 2003, suggested that the committee would need to see those memorandums that Roberts wrote while working in the Solicitor General’s office of former President George H.W. Bush — writings that most all Solicitor Generals, Democratic and Republican, have called confidential.

“These kinds of documents should be” released, Schumer said, recalling the similar fight that led to the filibuster of then-appellate court nominee Miguel Estrada in 2003. Estrada, like Roberts, was nominated to the U.S. Circuit Court of Appeals for the District on the same day in 2001, but Democrats focused in on Estrada at the time, requesting his Solicitor General memos and not Roberts’.

Schumer said he felt Roberts was not very forthcoming with answers at his 2003 hearing, but that he would need to be now, given the importance of the position he is seeking. “I can’t think of another nominee, other than Miguel Estrada, who was less forthcoming,” Schumer said.

And in a meeting Wednesday morning in the office of Minority Whip Dick Durbin (D-Ill.), a group of leading Democrats talked over floor strategy and message in a new weekly gathering of Durbin’s deputy whips and other key players. The discussion this week focused heavily on the Supreme Court battle, but also dealt with the need for Democrats to sharpen their nonjudicial legislative agenda since there are only eight Democrats on the Judiciary Committee.

“How do we as Democrats ensure that our agenda is out there? We’ve got to have issues,” said one aide familiar with the discussions. “The first set of battles will be fought by the Judiciary Committee. What the heck do the rest of us do?”

Reinforcing that point to other Democratic aides, Minority Leader Harry Reid’s (D-Nev.) daily talking point memo drove home the need to keep pushing other agenda items. “Key Point: Democrats look forward to examining the qualifications of President Bush’s Supreme Court pick. In the meantime, we will move forward with our common-sense agenda to keep Americans safe,” the memo read.

Participants in the Durbin meeting included Reid, Schumer and Sens. Edward Kennedy (D-Mass.), Mark Pryor (D-Ark.) and Ken Salazar (D-Colo.). Pryor, who helped orchestrate the “Gang of 14” deal averting a showdown on judicial filibusters, walked out of the meeting arm in arm with Reid.

While no Democrats were willing to admit it publicly, they privately acknowledged the chance that the Roberts nomination may not turn into the imbroglio that both parties had anticipated, if he proves to be a mainstream conservative who can win confirmation by a large vote. In that case, Democrats will need to push other issues to keep their base energized and keep the Republicans on the defensive.

Senate Republicans exhibited confidence in the handling of nomination process in its first 24 hours, as Roberts wended his way through the labyrinth of Capitol hallways and passageways to Senate office buildings, providing photo-ops as he visited more than a half-dozen of the chamber’s top leaders.

Sen. John Cornyn (R-Texas), a prominent Judiciary member, dismissed requests for more information and answers from Schumer and other Democrats. “Are they looking for a fight, or are they looking for a dignified, orderly process,” Cornyn said.

He said that during the Estrada fight almost every living Solicitor General, Democratic and Republican, opposed the release of those materials because they are considered similar to a private lawyer’s work product, which is strictly confidential. Noting that Roberts had a background check by the FBI and the committee just two years ago, Cornyn said the process should move quickly and smoothly.

“He is a known quantity,” he said.

But Democrats countered that the importance of his position — and the fact that he’s replacing Associate Justice Sandra Day O’Connor, a key swing vote — requires a whole new degree of scrutiny.

“It’s an entirely different standard,” Sen. Pat Leahy (D-Vt.), ranking member of Judiciary, declared immediately following Bush’s nomination Tuesday night.

While Schumer and other Democrats were raising procedural questions on the nomination, Democratic leaders appeared to be successful in preventing any Democrats from overly praising Roberts or promising to vote for him.

“We need to review the whole record before we make any judgements,” said Salazar, another key player in the “Gang” deal.