By Mike Allen and Dana Milbank
Washington Post Staff Writers
Tuesday, August 16, 2005
Democrats have decided that unless there is an unexpected development in the weeks ahead, they will not launch a major fight to block the Supreme Court nomination of John G. Roberts Jr., according to legislators, Senate aides and party strategists.
In a series of interviews in recent days, more than a dozen Democratic senators and aides who are intimately involved in deliberations about strategy said that they see no evidence that most Democratic senators are prepared to expend political capital in what is widely seen as a futile effort to derail the nomination.
Although they expect to subject President Bush's nominee to tough questioning at confirmation hearings next month, members of the minority party said they do not plan to marshal any concerted campaign against Roberts because they have concluded that he is likely to get at least 70 votes -- enough to overrule parliamentary tactics such as a filibuster that could block the nominee.
"No one's planning all-out warfare," said a Senate Democratic aide closely involved in caucus strategy on Roberts. For now, the aide said, Democratic strategy is to make it clear Roberts is subject to fair scrutiny while avoiding a pointless conflagration that could backfire on the party. "We're going to come out of this looking dignified and will show we took the constitutional process seriously," the aide said.
"This was a smart political choice from the White House," said one prominent Democratic lawmaker, who like several others interviewed for this article requested anonymity because they were departing from the Democrats' public position. "I don't think people see a close vote here."
In a reflection of the mildness of the Democrats' message, a set of party talking points circulated last week to Senate offices included no specific criticism of the nominee but simply called for "an honest look at John Roberts's record" -- which they say is made harder by the Bush administration's refusal to release some documents from the nominee's work as a government lawyer in GOP administrations.
"A thorough review of Roberts's record is required to guarantee that Judge Roberts will support the rights and freedoms of all Americans if he is confirmed," the memo says. "The Bush Administration must stop playing games over the release of documents; a lifetime appointment to the highest court is too important."
The Democrats' plan is not without risk. Outside strategists working with the White House said that if an overwhelming majority of Democrats vote for Roberts, Republicans will be able to argue in future confirmation fights that the opposition has taken ideology off the table as a relevant factor. In addition, many party activists outside Washington are eager for senators to show more backbone against President Bush.
The Democrats' decision to hold their fire -- less a formal strategy than an emerging consensus -- has allowed conservatives to husband their resources for future battles. Progress for America, a political group working closely with the White House, had planned to spend $18 million to promote the confirmation of Roberts but now may spend less than half that, according to Republican aides.
Democrats said that instead of mounting a headlong assault on Roberts, they plan to use the hearings and the surrounding attention by the news media to remind voters of their party's values, including the protection of rights for individual Americans. The plan calls for emphasizing rights beyond abortion in an effort to appeal to a broader swath of the electorate.
A 27-page document circulating among Republicans and conservatives compiles senators' public statements about Roberts to come up with what White House allies are calling their unofficial "whip count": 56 senators are positively inclined to support Roberts, with 44 of those solid and 12 senators leaning toward Roberts. That leaves 44 unknowns. But eight of those are Republicans who have made no public statement, and nine of them are Democrats who have made positive comments about Roberts's demeanor, intellect or integrity. So the pool of potential outright opponents could be as few as 27 senators, according to the Republican analysis.
Without question, Democrats on the Senate Judiciary Committee will subject Roberts to intense grilling -- and the discovery of new and damaging information about Roberts could dramatically change the strategy. But for now, Democratic lawmakers say they are less interested in opposing Roberts than in serving notice to Bush that they would react very differently if a more overtly conservative choice were made for a future Supreme Court vacancy.
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."