Foes Hope to Slow Roberts

Posted September 2, 2005 at 5:55pm

Liberal interest groups and Senate Democrats opposed to the Supreme Court nomination of Judge John Roberts will begin their last-ditch effort today to turn the momentum against confirming President Bush’s first selection for the high court.

With today’s first round of hearings focusing entirely on opening statements from both Judiciary Committee members and Roberts, the most important phase of the process will commence Wednesday, when Senators will get their first chance to publicly grill the nominee about everything from his writings in the early days of the Reagan administration to his recent rulings as a circuit court judge.

The Senate Democratic leadership has been adamant in pronouncing that Roberts will face a tough barrage of questions, with senior Democrats proudly noting that not a single Senator in their 45-member Caucus has endorsed Roberts at this point.

“None of this is set in stone,” said Sen. Charles Schumer (N.Y.), chairman of the Democratic Senatorial Campaign Committee and a Judiciary member.

But despite more than 66,000 pages released from Roberts’ days in the Reagan Justice Department and White House, there have not yet been the kind of dramatic revelations about the nominee that could imperil his prospects for joining the nation’s highest court. So far, it appears Democrats have simply heeded the call of Minority Leader Harry Reid (D-Nev.) to hold off on backing Roberts until after the hearings.

Even Nan Aaron, president of the Alliance for Justice and one of the most ardent opponents of Roberts, acknowledged last week that Roberts is eminently qualified for the post based on his legal mind. “Now the Senate and the American people have to learn the rest of the story,” Aaron said in announcing her group’s opposition to Roberts.

The lack of ready ammunition to use against the nominee has made it critical for opponents to upend Roberts at the hearings, and they hope to trip him up on his views on civil rights, privacy and other issues on which he trumpeted aggressively conservative views in his early 20s while a top Justice Department aide.

However, one senior Democratic strategist noted that Roberts is expected to perform fairly well at the question-and-answer sessions on Wednesday and Thursday. He’s already been peppered by nine Supreme Court justices 39 times in his appearances before the high court, and he appeared before the very same Judiciary Committee only two years ago in winning confirmation to the U.S. Court of Appeals for the D.C. Circuit.

Republicans and their conservative allies have not backed down at all in their defense of Roberts, but their volume of attack on the airwaves has been dramatically lower than originally anticipated.

Last week Progress for America, the conservative 527 group closely allied with the White House, announced a $400,000 ad campaign on CNN and Fox News in a preemptive strike to try to shield the nominee from having to answer questions about legal topics that could come before the court.

The topic has become the dominant issue of late — with the battle focusing on how much Justice Ruth Bader Ginsburg ducked questions during her 1993 hearings — but the relatively insignificant amount of cash put behind the ad demonstrated how confident conservatives have become of Roberts winning confirmation by a large margin.

In mid-June, Progress for America’s president, Brian McCabe, announced his group would pump $18 million into a campaign to defend whomever Bush nominated to the court, with about two-thirds of that designated for use on paid media.

To date, the group’s officials say that less than half of the $18 million has been allocated in the Roberts fight, leaving about $10 million or more for either a late confirmation push if he performs poorly at the hearings or as a reserve fund to be used in the next big nomination battle.

Indeed, at a press briefing last week, Progress for America’s Chris Myers said so far the nature of the Roberts fight has not necessitated more spending, and that the group’s preference would be to stockpile the cash for a future judicial fight.

“We haven’t seen the need,” said Myers, the group’s executive director. “We hope not to spend it. If it takes $2 million, $10 million or $18 million, we’re prepared to spend it.”

Myers also openly speculated that Roberts may end up winning confirmation by a massive margin along the lines of seven of the nine current justices, each of whom received 87 votes or more. (Only Chief Justice William Rehnquist, with 65 votes for confirmation to his post in 1986, and Justice Clarence Thomas, with 52 votes in 1991, have faced tough floor battles of the current makeup of the court.)

“It could be a situation of, what if there were a war and nobody came?” Myers said.

Many conservatives, along with the White House, have been predicting that the Judiciary Committee will split along partisan lines when it is expected to convene to vote on the nomination on Sept. 15.

A 10-8 vote in committee would set up a dramatic test of the credibility and standing of the Judiciary Democrats in their Caucus. Under former Minority Leader Tom Daschle (D-S.D.), the Caucus adhered to an unofficial rule that if every Democrat on Judiciary opposed the nominee, that candidate would be filibustered.

Schumer said that, since the White House won’t turn over writings and memos from Roberts while he served in the first Bush administration’s solicitor general’s office, the bar for fully answering questions at the hearings has become “more important” for the nominee.

If he doesn’t at least answer questions about his views on already-settled Supreme Court cases, Schumer said, “It would make a filibuster more likely. You can’t rule it out right now.”

But there has been little indication that most of the Democratic Caucus has the political stomach for a filibuster fight.

After meeting Roberts last month, Sen. Mary Landrieu (D-La.), a member of the so-called “Gang of 14” that averted the filibuster showdown in the spring, praised Roberts both personally and professionally, dismissing any notion of a filibuster.

“At this early point, I have not seen anything that would warrant a filibuster of this nominee, and I’ve been honored to help lay the groundwork to ensure an up-or-down vote,” Landrieu said in a statement, indicating she was “leaning towards supporting his confirmation.”

This Landrieu statement came weeks before her hometown of New Orleans was wiped out by Hurricane Katrina, which has taken up the focus and energy of most lawmakers over the past week.

Both Republicans and Democrats pledged to push ahead with the Roberts hearings, but it’s unclear if the disaster will make it more difficult for Democrats to launch a pitched, partisan battle on the nomination.

Schumer said the stakes were too high to simply avoid the battle entirely.

“This nomination is going to have implications for generations to come,” he said, adding, “We have to proceed on this basis that we can do two things at once — I think we have to.”