Roberts Unlikely To Face Big Fight

Officially, Democrats say they are taking no position until next month's hearings. But they do not dispute that the selection of Roberts did not present them with obvious ammunition against the White House. "There were some potential candidates with a record of hostility to fundamental rights who would have been opposed flat out by a majority of the Democratic caucus from Day One. Judge Roberts was not on that list," said Jim Manley, spokesman for Senate Minority Leader Harry M. Reid (D-Nev.). "It doesn't mean he's getting a free pass.

"There's nothing the White House would rather have seen than having us come out reflexively swinging at a nominee in order to accuse us of politicizing the debate," Manley added. "There was a strategic decision to keep our powder dry, to reserve judgment until the committee does its work. We want Democrats to be able to fight on principles, not politics."

But the minority party's signals so far suggest acquiescence. When the abortion rights group NARAL Pro-Choice America released an incendiary ad about the nominee last week, a number of prominent liberals joined conservatives in condemning the ad as misleading, and the spot was canceled after elected Democrats offered NARAL no support.

Republicans have growing confidence that Roberts will have smooth passage. "We all assume he'll be confirmed," said Sean Rushton, executive director of the Committee for Justice, which is working to secure Roberts's confirmation. "It's about padding the margin." The Democratic consensus not to mount a major fight comes in part from a calculation that the party would be in a stronger position to oppose a future -- and perhaps more clearly conservative -- nominee if it did not mount a full-scale and likely fruitless assault on Roberts. Also in the calculation, they say, is the lack of outcry about Roberts from liberal interests and a desire to keep the focus on issues such as Iraq and gas prices, where Bush is more vulnerable.

Democratic silence is not, by itself, a guarantee of support. The opposition to the failed nomination of Robert H. Bork in 1987 was evident from the start, but protests of Clarence Thomas in 1991 were slow to build. In early August 1991, a month after President George H.W. Bush nominated Thomas, no senator had yet announced opposition. It was not until the fall that controversy erupted over allegations that he had made sexually inappropriate comments to a subordinate. For now, even Sen. Christopher J. Dodd (Conn.), one of the more combative Democrats in the chamber, told "Fox News Sunday" two weeks ago that Roberts is "probably a good choice."

Even before Roberts was selected, Sen. Joseph I. Lieberman (D-Conn.) said he was the type of nominee who could be considered without a filibuster.

No Democrat has announced opposition to Roberts. The toughest remarks so far were by Sen. Barbara Boxer (D-Calif.) last week at the Golden Gate University School of Law in San Francisco, where she said she must know whether Roberts would support abortion rights and privacy. "If I don't believe he will, I won't vote for him," Boxer said. "I can use all the parliamentary rules I have as a senator to stand up and fight for you."

Democrats say they are not forswearing the possible use of delaying tactics that would require 60 senators to vote to proceed with his confirmation. But Democratic strategists said that barring startling new information about Roberts, they would not have enough votes for a successful filibuster.

Some Democrats would like to see more of a fight. Lanny Davis, a former Clinton legal aide and party official, complained that Democrats are avoiding a showdown with Roberts over ideology by fighting over whether documents will be released from Roberts's time in government. "If they wanted to have a fight on substance they wouldn't be talking about process," Davis said. Democrats, he said, have "either folded or procrastinated to the point where it [opposition] won't have any effect."