Today the Senate Judiciary Committee begins its hearing on President Bush’s nomination of Judge John G. Roberts Jr. to the Supreme Court. The dramatic developments of Labor Day weekend — the death of Chief Justice William H. Rehnquist, President Bush’s sudden new nomination of Roberts to succeed his former boss as chief justice, and the resulting reopening of the vacancy left by Justice Sandra Day O’Connor’s resignation — will give added attention to the Roberts confirmation hearing.
But these developments will not alter the three fundamental dynamics of the hearing: (1) While feigning openmindedness at the outset of the hearing, the committee’s Democrats will harshly attack Roberts. (2) Roberts’s primary strategic goal will be to secure Chairman Arlen Specter’s support, not to appease Democrats. (3) And the other Republican senators on the committee will face a choice between the politically safe and lazy course of defending Roberts entirely on neutral grounds and the jurisprudentially sound course of advancing the arguments for judicial restraint.
There is every reason to believe that Roberts will be confirmed as chief justice. But how these dynamics play out during Roberts’s hearing will shape the battle over the next justice.
1. The Democrats. Let’s begin with the committee’s Democrats. Faced with Judge Roberts’s impeccable credentials and the wide acclaim with which his July nomination to the O’Connor vacancy was met, some Senate Democrats initially signaled a desire to try to paint as moderate a picture as possible of Judge Roberts in order to better position themselves for the fight over the nominee for the next Supreme Court vacancy. Under this approach, Democrats would have joined with Republicans to confirm Roberts by a huge margin — 90-10 or better. Democrats would then have used their votes for Roberts to portray themselves as reasonable and would have attacked the next nominee on the ground that he is no John Roberts.
Given the dominant role of the Left in the fundraising and campaign apparatus of Senate Democrats, it is doubtful that this moderate approach would ever have been permitted. But when the disclosure of Roberts’s documents from his service in the Reagan administration showed that he (surprise, surprise) was a strong opponent of the Left’s sacred cows — such as racial and gender quotas, forced busing, and comparable worth — further talk of this approach quickly disappeared. And now the next vacancy is suddenly upon us.
Of the eight Democrats on the Judiciary Committee, four — ranking member Pat Leahy, Ted Kennedy, Chuck Schumer, and Dick Durbin — are among the fiercest partisans in the Senate. Two others, Joe Biden and Russ Feingold, have presidential aspirations that would seem to require them to kowtow to the Left, even if they were not otherwise so inclined. And Dianne Feinstein has already made clear that she sees herself as the standard bearer of all American women, whom she somehow imagines all have the values and sensibilities of a San Francisco-style feminist. The eighth Democrat is Herb Kohl, by all accounts a decent man and one whose extraordinary wealth frees him from fealty to the dictates of the likes of People for the American Way.
In 2003 Kennedy, Schumer, and Durbin voted in committee against Roberts’s nomination to the D.C. Circuit. Absent a farfetched scenario in which Roberts abjectly repudiates his long-held commitment to judicial restraint, it seems virtually certain that they, and Leahy (who has already stridently attacked Roberts), will vote against him in committee, and very likely that Biden, Feingold, and Feinstein will as well. If so, they will place intense pressure on Kohl to join them, and my bet is he will. So a unanimous (or, at best, all-but-Kohl) Democratic vote in committee against Roberts is likely. And there could well be fewer than ten Democrats in the entire Senate who vote for Roberts in the final roll-call tally.
Driven by the Left to vote against Roberts, Senate Democrats will need to justify their votes to their more moderate electorates so that they don’t end up, like former Democrat leader Tom Daschle, falling off the tightrope they’re forced to walk. This need will drive Democrats on the committee to subject Roberts to their usual caricatures and abuses. Democrats will deliver opening statements that profess their openmindedness but that express profound concerns. They will preface their questions with long-winded, tendentious statements and then insist that Roberts narrowly answer the specific question they pose: e.g.: “Judge Roberts, you have a long record of hostility to civil rights, the rights of women, and choice, and you’re perfectly entitled to hold your extremist views, but I’d like to ask you a question about your ruling in the French-fry case….”
There is one plausible variant to this attack scenario. In order to position themselves better to fight the nominee for O’Connor’s vacancy, Democrats like Biden and Feingold might seek to highlight the spurious argument for “maintaining the current balance” of the Court. To do so, they would still attack Roberts as extremist but say in the end that they will vote for him on the ground that he is replacing Rehnquist rather than O’Connor.
2. Chairman Specter. As a stellar Supreme Court advocate, John Roberts knew how to find the five votes he needed for victory. He will recognize that his surest path to Senate confirmation is not to try to appease Democrats but to hold his Republican majority. And the key to that, like it or not, is winning the support of Specter, the liberal Pennsylvania Republican who chairs the committee, without losing the support of conservative Republicans. That shouldn’t be a particularly difficult balancing act because Specter, in order to hold on to his chairmanship, wants to support Roberts, and Roberts will have plenty of leeway to provide Specter the broad expressions of respect for Congress’s constitutional role that Specter is seeking. So expect Roberts to be particularly respectful of Specter’s concerns. And expect Specter to announce his support for Roberts at the end of the hearing.
How tolerant Specter will be of the Democrats’ antics is another question. Will he keep Democrats from badgering Roberts? When Schumer makes clear that he is ready to exceed the unlimited time for questions that he seems to think that Specter has promised him, will Specter be ready to shut him down?
3. The other Republicans. The real question mark in the hearing is whether the committee’s Republicans (other than Specter) will fight the good fight on behalf of the jurisprudence of judicial restraint that Roberts advocates. This confirmation hearing provides a valuable opportunity for Republicans to explain that judicial restraint respects the constitutional power of American citizens to govern themselves through their elected representatives. The liberal judicial activism that Senate Democrats promote would, by contrast, have judges continue to impose their own policy preferences in the guise of the Constitution — stripping “under God” out of the Pledge of Allegiance, for example, and imposing same-sex marriage nationwide.
Seeking the easiest path to reelection, committee Republicans may be tempted merely to paint Roberts as a genial moderate and emphasize his impeccable credentials. But if they do not respond to the Democrats’ attacks on Roberts — and to the “balance” argument — by defending principles of judicial restraint, they will make the president’s next nomination more difficult and undermine the very reason that so many voters elected them in the first place.
The Roberts confirmation hearing is a prelude to the upcoming fight over the other vacancy. If Democrats are able to smear, and vote against, Roberts without paying a political price for it, they will be emboldened in that next fight.
— Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to NRO’s “Bench Memos” blog on judicial nominations. Whelan worked for the Senate Judiciary Committee from 1992 to 1995.