By Mike Allen
Washington Post Staff Writer
Sunday, July 3, 2005
The two parties have begun outlining their strategies for confirmation hearings once President Bush nominates a successor to Justice Sandra Day O'Connor, with Senate Republicans planning a rapid and rigid schedule designed to prevent Democrats from pinning the nominee down on divisive issues such as abortion.
A planning document for Senate Judiciary Committee Republicans says the nominee will be counseled to avoid disclosing "personal political views or legal thinking on any issue" in an effort to put a focus on qualifications rather than specific issues, including same-sex marriage and the government's treatment of suspected terrorists.
Democrats signaled that whoever the nominee is, their three likely lines of attack will be to assert the White House did not consult them sufficiently, then paint the nominee as ideologically extreme and finally assert that the Senate had not received sufficient documents about the candidate. But Senate Democratic aides said they will focus for now on bipartisan consultation and not publicly prejudge the nominee.
Republican leaders said they are prepared to start Judiciary Committee hearings as soon as three weeks after Bush announces his choice, although they are more likely to begin in late August or early September. Party leaders said it is their goal to have the new justice on the bench when the court reconvenes Oct. 3. O'Connor said in her retirement letter to Bush that she will stay until her successor is confirmed.
Lawmakers and aides said leaders are conscious of the poor image of Congress in recent polls and are determined to avoid having the two to three days of nationally televised hearings come off like a trial. Senate Majority Leader Bill Frist (R-Tenn.) appealed for hearings marked by "dignity and respect."
That does not appear likely. Sen. Charles E. Schumer (N.Y.), the ranking Democrat on the Judiciary Committee's subcommittee on courts, said an effort to choke off inquiries about specific issues would fail because Democrats believe they have "an obligation to our country and the Constitution to thoroughly vet the nominee."
"The number one thing we look for are the person's views," Schumer said. "The hard right wants to get it done with as few questions and as quickly as possible."
Republicans cited as precedent the hearings of justices Ruth Bader Ginsburg in 1993 and Stephen G. Breyer in 1994, when the nominees said it was inappropriate to give their views on legal issues that could come before the court.
With the nominee still unknown, the parties' plans are sketchy at points and could change. But to a remarkable degree, the contours of the strategies -- and the avenues down which lawmakers plan to steer debate in coming weeks -- have already emerged in interviews, floor statements and internal planning documents.
An instruction sheet prepared by Senate Republican leaders and given to conservative allies of the White House on Friday afternoon said in its first sentence, in a reference to the tough line taken by Sen. Edward M. Kennedy (D-Mass.), that the instructions place an "emphasis on taking the high road and avoiding the attacks that Kennedy et al. are implicitly threatening."
The sheet was distributed at a meeting where speakers urged the groups not to stress the abortion issue in their public statements. Eric Ueland, Frist's chief of staff, "urged them not to fall into the mainstream media trap of rhetorical or behavioral excess on behalf of a highly qualified nominee," according to an attendee.
Senate Democrats said they will insist on a more deliberative and candid process than Republicans appear to be contemplating, and called for an unprecedented amount of consultation with the White House before the announcement of a nominee. The Constitution says the president shall nominate judges to the Supreme Court and appoint them "with the Advice and Consent of the Senate," but it does not define the advising function.
Talking points distributed by e-mail by Senate Republican leaders state that consultation "does not mean co-nomination," hinting at the disputes that are likely to erupt even before the public hearings begin. "Consultation is a courtesy," said the talking points, which are guidelines for other senators. "The Constitution does not require it."
Senate Democrats said in their own e-mails that they plan exclusive interviews and briefings for bloggers and Hispanic news outlets throughout the confirmation fight. The party distributed talking points, used to guide lawmakers' news releases and sound bites, stating: "We hope this process will be one of consensus rather than confrontation, but that will be up to President Bush." The Democratic National Committee circulated a memo saying that Bush's sinking poll ratings mean that he "needs a win -- desperately" and that the nomination is "a chance to bring the country together."
Sen. John Cornyn (R-Tex.) said in an interview yesterday that his party will resist Democratic arguments for "ideological balance" on the court, a concept not in the writings of the Founding Fathers. And he said it is important to set "reasonable deadlines" for confirmation.
"The longer a nominee is dangled out there, the more people are going to try to take a whack at him like a piñata," Cornyn said.
Senate Democrats said a more reasonable pace than that being contemplated by Republicans would be 75 days between the announcement of a vacancy and the start of hearings. (The hearings for the last two, Breyer and Ginsburg, were less than that.) Schumer said that confirming the nominee by Oct. 3 is "not going to be so easy to do, because it's hard to imagine how hearings would begin before Labor Day." He said to finish hearings, a committee vote and a floor vote by the first Monday in October would be "pretty rough."
Confirmation hearings did not become national spectacles until the television age: Before 1955, only two Supreme Court nominees appeared before the committee, according to court histories. The hearings, the first Supreme Court confirmation since Breyer's 11 years ago, are likely to be held in the Beaux-Arts splendor of the Russell Senate Office Building Caucus Room, site of hearings on the Teapot Dome oil reserves, the Watergate break-in, the Iran-contra affair and the confirmation of Justice Clarence Thomas.
The televised portion of the hearing would probably last two to three days, with an additional day or two for testimony from outside groups. The first day would be taken up mostly by introductions of the nominee and opening statements, so the second would likely be the most intense. Before the committee vote, senators also would be likely to hold a one-day, closed session to discuss confidential matters such as the contents of the FBI report on the nominee.
Judiciary Committee Chairman Arlen Specter (R-Pa.) is intent on moving expeditiously, Republican aides said. As soon as the nomination is announced, he and Frist will agree on a schedule. One topic of discussion might be limiting opening statements at the committee hearing to Specter and the top Democrat, Sen. Patrick J. Leahy (Vt.), to allow more time for questioning the nominee, the aides said.
Specter is to finish chemotherapy treatment for Hodgkin's disease on July 22, and Republican aides said he will show his resilience at the hearings by living up to his reputation for wielding a firm gavel. "You're not going to see him jam the Democrats at all," one of the aides said. "But he can see when they're being dilatory and will draw the line."
But other Judiciary Committee members said that for Specter, 75, the hearings are part of his legacy, as surely as the result will be part of Bush's. His aim is to be driven by objectivity and precedent, fellow Republicans said.
But former GOP senator Alan K. Simpson, who voted to confirm seven of the nine sitting justices, said from his home in Cody, Wyo., yesterday that he already sees the committee members "ripping into each other" and fears there is no way to head off contentious hearings because the groups on both sides are so galvanized.
"If this just turns into an issue of abortion and 'partial birth' abortion, gay marriage, homosexual issues," Simpson said, "it will be the disaster of the ages."