As Battlefield Shrinks, Democrats Mute Their Attacks

By Dan Balz
Washington Post Staff Writer
Tuesday, September 13, 2005

The first day of confirmation hearings for Judge John G. Roberts Jr. to become the 17th chief justice of the United States proved to be a tepid opening to what once was billed as a battle of monumental proportions between left and right.

There may yet be some of the fireworks that were predicted when the first of two Supreme Court vacancies opened up two months ago -- particularly this morning, when members of the Senate Judiciary Committee begin to question Roberts. But with Roberts's confirmation seemingly assured, some of the fight appears to have gone out of the Democrats and they have been forced to shift their strategy.

The confirmation hearings are now only partly about Roberts and what he thinks about the law. Instead, they have become a prelude to the coming battle over President Bush's as-yet-unnamed successor to Justice Sandra Day O'Connor and a forum with broader political implications for a debate about deep philosophical differences between Republicans and Democrats over the role of government and the courts in American society.

In laying out areas of potential inquiry, the Democrats were generally polite and, with few exceptions, largely devoid of passion. However, Roberts's unwillingness to answer certain questions and the White House's continuing to deny Senate Democrats documents from the nominee's days as deputy solicitor general in the administration of President George H.W. Bush are likely to raise the temperature of the opposition.

But the positive reaction to Bush's nominee to replace the late Chief Justice William H. Rehnquist and the internal head counts in the Senate have forced Democrats to adopt a different stance in approaching the hearings, one aimed as much at future elections as the question of whether Roberts will become the next chief justice. A new Washington Post-ABC News poll shows that, by 2 to 1, Americans say he should be confirmed.

Judging from the opening statements, Democrats and Republicans approached the first day of the hearings with far different goals. Confident of the outcome of the Roberts confirmation battle, many Republicans came with a set of procedural talking points aimed at encouraging Roberts not to answer the Democrats' questions about his views on controversial issues before the court.

That view was summed up most succinctly by Sen. John Cornyn (R-Tex.), whose advice to the nominee was: "Don't take the bait."

Democrats came with the intention of talking about their values and their view of the courts as protectors of women's rights and civil rights, and of the importance of preserving an expansive view of the federal government's powers in the face of a series of Supreme Court decisions limiting that power.

Sen. Joseph R. Biden Jr. (D-Del.) said that, with two vacancies, Bush and his conservative allies have a "once in a lifetime moment" to reshape the Supreme Court and to change the court's view of the Constitution. "I believe with every fiber in my being that their view of the Constitution and where the country should be taken would be disaster for our people," he said.

Richard W. Garnett, a law professor at Notre Dame University and a former Rehnquist clerk, said Republicans will have missed an important opportunity if they fail to engage.

"I would have said the Republican strategy should be not just to smooth the way to the confirmation," Garnett said, "because that's going to happen, but to remind the people that ours is a government of limited powers and that the judiciary is limited not to restrict freedom but to protect democracy."

Sen. Lindsey O. Graham (R-S.C.) suggested that he understood that advice and that Republicans could more than hold their own in such a debate. Pointing out that there will be many questions raised by memos and documents Roberts wrote while a young lawyer in the administration of President Ronald Reagan, he said to the nominee, "To some, those policies make no sense; those policies are out of the mainstream. But this hearing is about whether or not you're qualified and whether or not Reagan conservatism is in the mainstream."

Roberts was largely a bystander as the 18 members of the committee gave opening statements. When his time finally arrived, he spoke briefly and without notes, outlining a view of the judiciary as one that requires humility, an open mind and a deference to precedent.

Tougher questions await him today, and the Democrats yesterday telegraphed the areas on which they will focus. Sen. Edward M. Kennedy (D-Mass.) argued that courts must protect the rights gained by women, minorities and the disabled over the past half-century. "The central issue before us in these hearings," he said, "is whether the Supreme Court will preserve the gains of the past and protect the rights that are indispensable to a modern, more competitive, more equal America."

In one of the most arresting moments of the day, Sen. Dianne Feinstein (D-Calif.) talked about abortion rights and her days as a student at Stanford University, before abortion was legal, and when fellow students collected money for a young woman seeking an abortion in Mexico and when another woman committed suicide because she was pregnant. "I don't want to go back to those days," she said.

Sen. Russell Feingold (D-Wis.) raised questions about the administration's decision not to release documents from Roberts's tenure in the solicitor general's office. "The refusal gives rise to a reasonable inference that the administration has something to hide here," he said.

Those issues and others will dominate the Democrats' questioning of Roberts over the next two days, and after a quiet opening day, that is likely to increase the tension inside the Senate hearing room. That will not jeopardize Roberts's likely confirmation; whether it achieves the Democrat's political objectives is much more an open question.

© 2005 The Washington Post Company