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CHOOSING A CHIEF JUSTICE

Democrats Consider a Voting Strategy

Minority-party senators can't block Roberts' confirmation, but they can send a message about the next nominee.

September 16, 2005|Maura Reynolds and Richard Simon | Times Staff Writers

WASHINGTON — Congressional hearings for chief justice nominee John G. Roberts Jr. concluded Thursday, but the Democrats' dilemma over whether to vote to confirm him did not.

Despite the nominee's 20 hours under questioning this week from the Senate Judiciary Committee, Democrats on and off the panel said they were as conflicted over Roberts as they were before the hearings began.

"I for one have woken up in the middle of the night thinking about it, being unsure how to vote," Sen. Charles E. Schumer (D-N.Y.), a committee member, said as the questioning drew to a close.

Roberts' confirmation in the Republican-controlled Senate is virtually assured. But the big political question in Washington is whether he draws significant Democratic support.

For many Democrats, the decision is about much more than whether they believe Roberts is qualified to lead the Supreme Court. And it's about more than how their constituents and supporters want them to vote.

It is about how to maximize their influence while in the minority, especially with a second seat vacant on the court.

Should they vote against Roberts to remind the White House that they still have enough votes to filibuster if they find the next nominee more of a conservative ideologue than Roberts appears to be?

Or should they vote for Roberts so that they will appear more reasonable and less partisan if they decide to block the second nominee?

"That's a critical part of this conversation," said Sen. Richard J. Durbin (D-Ill.), the Senate's No. 2 Democrat and a committee member. "We understand that this is the first of two vacancies on a court that's so evenly divided that one bad choice ... could have an impact for a long time."

In the next two weeks, there will be two votes on Roberts -- one in the Judiciary Committee on Thursday and one on the Senate floor, probably in the last week of September.

Among the undecided on the committee is Sen. Dianne Feinstein (D-Calif.).

"I don't really know what I'm going to do with respect to voting for you or voting against you," she told Roberts on Thursday. "I'm convinced you will be [chief justice], God willing, for 40 years. And that even concerns me more because it means that my vote means more."

Some Democrats argue that Roberts acquitted himself well during the hearings, convincing many that although he may hold conservative views, he is not an ideologue who would seek to impose those views on others.

"I think if you've looked at what I've done since I took the judicial oath [as a federal appellate court judge], that should convince you that I'm not an ideologue," Roberts said Thursday in response to a question from Schumer. "You and I agree that that's not the sort of person we want on the Supreme Court."

Many Democrats had feared that Bush would nominate a judge in the mold of justices Antonin Scalia and Clarence Thomas -- the court's most conservative members -- but Roberts took pains during his testimony to distance himself from some of their views.

Moreover, according to most calculations of the court's ideological balance, Roberts' confirmation to replace Chief Justice William H. Rehnquist, who died Sept. 3, would merely substitute one conservative for another.

Democrats are much more concerned about whom Bush will nominate to replace Justice Sandra Day O'Connor, who frequently has been the court's swing vote on key decisions.

"You've got to choose your battles," said David DiMartino, an aide to Sen. Ben Nelson of Nebraska, a centrist Democrat who said he had yet to see anything in Roberts' record that disqualified him from a seat on the nation's highest court. "If you go to the mat on this one, then when you go to mat on the next one, it could be perceived as crying wolf," DiMartino said.

Douglas W. Kmiec, a law professor at Pepperdine University who served in the Justice Department under presidents Reagan and George H.W. Bush, said that substantial Democratic support for Roberts could complicate White House calculations about its nominee to replace O'Connor.

A "yes" vote for Roberts by Democrats, Kmiec said, "is a message that says, 'Give us quality and you get our vote. But if you give us anything less, understand: The next person does not get nearly the same affirmation.' "

Other Democrats say senators will strengthen their hand if they vote against Roberts.

"The more Democrats vote against Roberts, the harder it will be for Bush to put up a real right-winger next time," said a Democratic strategist who is consulting with the party's leadership and requested anonymity when commenting on the issue.

Most of the liberal advocacy groups taking an interest in the Roberts nomination are urging Democrats to vote against him. Some of their officials testified to that effect before the Judiciary Committee on Thursday in the final phase of the hearings.

Others met privately with Senate Minority Leader Harry Reid (D-Nev.) to make their case against Roberts.

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