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Democrats Say Nominee Will Be Hard to Defeat

By Peter Baker and Charles Babington
Washington Post Staff Writers
Thursday, July 21, 2005

The White House and its allies opened their campaign to confirm Judge John G. Roberts Jr. to the Supreme Court with a mix of soft-sell persuasion and hard-pitch pressure yesterday as Senate Democrats plotted strategy for responding to a nomination they conceded could be hard to defeat.

After meeting President Bush for coffee at the White House in the morning, Roberts headed to Capitol Hill for the ritual of convivial courtesy calls not seen in 11 years, while Republican operatives began television advertising to push the Senate to approve the appellate judge. Bush called for a "fair and civil process" that would put Roberts on the bench by the time the court reconvenes Oct. 3.

An array of interest groups on the left began mobilizing opposition to Roberts, but reticent Senate Democrats demonstrated little eagerness for an all-out war against him. Some Democratic senators laid the groundwork for a struggle focused on prying loose documents related to Roberts's career in government and using any resistance by the administration against him. Yet as the day progressed, Democrats seemed increasingly resigned to the notion that they cannot stop his appointment.

The key barometer came from members of the Gang of 14 senators who forged a bipartisan accord in May to avoid a showdown over lower-court appointments. Two Republican members of the group, John McCain (Ariz.) and John W. Warner (Va.), said the Roberts selection would not trigger the "extraordinary circumstances" clause of the agreement that would justify a Democratic filibuster.

Under Senate rules, a filibuster would be the only procedural way the minority party could stop the nomination. By the end of the day, though, Democrats held out little prospect of a filibuster.

"Everybody ought to cool their jets on this and let the process work," said Sen. Ben Nelson (Neb.), a Democratic member of the group. "Going in, it looks good" for Roberts, he said.

Bush introduced his nominee in a prime-time White House ceremony Tuesday night, choosing a practiced appellate lawyer to replace retiring Justice Sandra Day O'Connor. Roberts, who served in the Ronald Reagan and George H.W. Bush administrations and earned a reputation as one of the most successful lawyers in the Supreme Court bar, was appointed by the current president to the U.S. Court of Appeals for the D.C. Circuit in 2003.

Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) said yesterday that he expects hearings on Roberts's nomination in early September after the August recess, although he added that they could be moved up to late August if needed. He promised "extensive hearings" and predicted that Roberts "will have the answers" to senators' questions.

White House officials and Republican strategists exuded confidence, saying they had found the most confirmable conservative to put forward. "I think he's ultimately going to sail through," said Jay Sekulow, chief counsel to the American Center for Law and Justice, who has been advising the White House on court strategy.

"There'll be a battle because all Supreme Court nominations are battles, but this is not a holy war," said Kenneth M. Duberstein, a Reagan White House chief of staff who steered the previous two Republican nominations onto the court for Bush's father. "I don't think the passion from the far left will be felt by all these Democratic senators."

Democrats prepared for a strategy that recently has served them well on contentious nominations: focusing on a nominee's refusal to answer questions or provide documents rather than just the person's political beliefs.

Senate Democrats have bottled up John R. Bolton's nomination to be U.N. ambassador by insisting on State Department documents that the administration refuses to yield. And they successfully filibustered Miguel Estrada's court nomination in Bush's first term by emphasizing his refusal to answer questions about judicial philosophy.

But key differences could frustrate Democrats. Bolton was portrayed as a divisive figure before the document issue emerged, feeding the notion that he may have something to hide. Even some Democrats agreed that Roberts is "a very affable individual," as Sen. Barbara Boxer (Calif.) put it yesterday, undermining any claim that he is concealing dark secrets.

Throughout the day, Democrats stressed that Roberts, 50, could spend 30 or more years on the court and that it is essential to scrutinize his record and philosophies. "A preliminary review of Judge Roberts's record suggests areas of significant concern that need exploration," Sen. Patrick J. Leahy (Vt.), the Judiciary Committee's top Democrat, said in a floor speech. "We need to know what kind of Supreme Court justice John Roberts would be. I hope the White House and the nominee will work with us and cooperate so that all relevant matters can be constructively explored."

Sen. Trent Lott (R-Miss.) said Democrats would not get far with such a strategy. "I'm sure that Schumer and Durbin and the usual suspects, Kennedy, will make a fuss over that," he said, referring to the three Democrats who opposed Roberts's appointment to the appellate court in 2003, Charles E. Schumer (N.Y.), Richard J. Durbin (Ill.) and Edward M. Kennedy (Mass.). "But if that's all they've got to hang their hat on, it's not very much."

Sen. Orrin G. Hatch (R-Utah) put it more colorfully. "It's a little bit like biblical Pharisees, you know, who basically are always trying to undermine Jesus Christ," he said on Fox News. "You know, it goes on the same way. If they can catch him in something, they can then criticize and the outside groups will go berserk."

Some of the outside groups wasted little time yesterday airing their dissent. NARAL Pro-Choice America, Americans United for Separation of Church and State, and MoveOn.org said they will oppose Roberts because of his views on abortion, school prayer and other issues. Planned Parenthood staged a small protest outside the Supreme Court building.

"Clearly there is an obligation on the Senate, and a burden on the part of Roberts, to come to grips with what his judicial philosophy is, especially regarding [abortion] and privacy," said Marcia D. Greenberger, co-president of the National Women's Law Center.

Their opposite numbers rallied behind Roberts with e-mail blitzes, new Web sites, and radio and television advertising. A $1 million commercial buy by Progress for America, a group allied with the White House, praises Roberts and calls on the Senate to endorse him expeditiously. "Shouldn't a fair judge be treated fairly?" the ad asks.

C. Boyden Gray, founder of the Committee for Justice, another group with ties to the White House, said more ad buys will depend on how aggressively the other side attacks Roberts. "It's apparent that the Democrats are going to hold back a little bit," he said. "I don't see where their traction comes from, myself. There's not going to be any filibuster."

The day after his nomination, Roberts began his quest for confirmation with an early-morning coffee with Bush. The president declared that the nomination was "off to a very good start" and vowed to "push the process forward because he and I both agree that it's important that he be sworn in prior to the court reconvening in October."

At a speech in Baltimore later in the day, Bush prodded the Senate further. "I urge the Senate to rise to the occasion, to provide a fair and civil process and to have Judge Roberts in place before the next court session begins," he said.

Roberts took off for Capitol Hill, squired by former senator Fred D. Thompson (R-Tenn.), now an actor. After Roberts chatted privately for 30 minutes with Majority Leader Bill Frist (Tenn.), Majority Whip Mitch McConnell (Ky.) and Specter, the four briefly sat for photographers .

"I appreciate and respect the constitutional role of the Senate in the appointment process," Roberts said. "And I'm very grateful to the senators for accommodating me and having me over here today just the day after the announcement of the nomination."

Roberts later paid brief visits to Minority Leader Harry M. Reid (D-Nev.) and Leahy. He will return to call on other Judiciary Committee members today, but Democrats already seemed interested in changing the subject as Reid scheduled a morning news conference on defense matters.

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