When President Bush met with Senate leaders at the White House yesterday to discuss the Supreme Court, it marked the opening act in a process of consultation to which both sides say they are committed. But Republicans and Democrats have very different views of what that process should entail, coloring the early stages of what could easily become an all-out battle over Bush's nominee.
White House officials and Senate Republicans have already declared that the outreach to lawmakers about the vacancy created by the retirement of Justice Sandra Day O'Connor is unprecedented, with more than 60 senators contacted or consulted about the choice. "He has gone way beyond what any president has ever done," said Sen. Orrin G. Hatch (R-Utah).
But Democrats are trying to establish their own standard for the consultation, with demands likely to increase. Unless Bush shares the names of potential nominees, they say, the process will have been a charade that could affect the confirmation battle. "There has to be more consultation," Sen. Patrick J. Leahy (Vt.), ranking Democrat on the Judiciary Committee, said after the meeting. "This was only a first step."
This yawning divide is the latest front in the ongoing war over the judiciary, part of the jockeying for advantage in advance of Bush's decision. But the two sides have consulted the Constitution and reread the pertinent Federalist Papers, and both are looking at the record of other presidents for evidence to support their interpretation of what the consultation requires.
Democrats assert that two recent presidents -- Bill Clinton and Ronald Reagan -- did what they want Bush to do. Republicans say the Democrats misinterpret those cases and argue that nowhere does the Constitution require a president to share such information in advance with anyone in the Senate. The next days and weeks will test Bush's and the Democrats' willingness to come together.
Yesterday's meeting was more intimate than many that Bush conducts with members of Congress. Held in a study off the Oval Office, the group talked for an hour, although much of the discussion involved process and not potential nominees. "No one came into the meeting with lists," a Senate aide said.
The small Senate delegation included Majority Leader Bill Frist (R-Tenn.), Minority Leader Harry M. Reid (D-Nev.), Judiciary Committee Chairman Arlen Specter (R-Pa.) and Leahy. In addition to the president, the White House contingent included Vice President Cheney and Chief of Staff Andrew H. Card Jr.
Attendees said Bush noted that, in his campaign, he had laid out markers on nominating strict constructionists who are not activists and that he is in intent on hewing to those principles. In a light moment, Democrats said there are plenty of activist conservatives, as well as liberals.
At one point, the Democrats offered the names of three Hispanic federal judges and suggested that they could win broad Senate support. The three are Sonia Sotomayor of the U.S. Court of Appeals for the 2nd Circuit, who was named a district judge by President George H.W. Bush and elevated to the appeals court by Clinton; Edward Charles Prado of the 5th Circuit, nominated to be a district judge by Reagan and named to the appeals court by President George W. Bush; and U.S. District Judge Ricardo H. Hinojosa of McAllen, Tex., nominated by Reagan.
One area of agreement came over scheduling, with senators in both parties saying they prefer to hold hearings in September rather than during their August recess. But Bush gave no hint of his timetable and made no promises to share names in advance.
The issue of consultation was a key part of the agreement among the "Gang of 14" senators, which averted a meltdown on the Senate floor over judicial nominees this spring, with Sens. John W. Warner (R-Va.) and Robert C. Byrd (D-W.Va.) crafting the language calling on Bush to consult senators on future nominations.
Since the O'Connor resignation, Card, White House counsel Harriet Miers and Deputy Chief of Staff Karl Rove have made calls to lawmakers soliciting opinions, an action that Warner praised. "I feel very definitely that it meets and really exceeds the spirit of that agreement," he said.
Sen. Mark Pryor (D-Ark.), another member of the Gang of 14, agreed that the consultations have been helpful, but he said future talks should be more intense and be limited to members of the Judiciary Committee, Senate leaders and, perhaps, Byrd and Warner.
Democrats point to Clinton's conversations with Hatch as the kind of consultation they want to see. Clinton, according to Hatch, raised the names of a number of possible nominees with him in 1993. Hatch told Clinton that the nomination of then-Interior Secretary Bruce Babbitt could cause problems in the Senate, but he also told Clinton that the two eventual nominees, now Justices Ruth Bader Ginsburg and Stephen G. Breyer, would have a far easier time.
However, Hatch says that, unlike some Democrats, he never threatened a filibuster and he said the president is not required to get a stamp of approval in advance. "For some Democrats, consultation means 'do things the way we want,' " he said. "No president's ever put up with that."
Sen. Joseph R. Biden Jr. (D-Del.) recalls being asked by Reagan for his views on potential nominees after the Senate rejected the nomination of Robert H. Bork. Among them was now-Justice Anthony M. Kennedy. But Biden said Reagan had already made up his mind about Kennedy.
Biden said he told Card yesterday that the president should draw up a list, including the names of some probably not under consideration, and ask key senators their opinions.
David Alistair Yalof, a University of Connecticut professor who wrote "Pursuit of Justices," said that real consultation on Supreme Court picks has generally occurred when a president was weak or had higher priorities. "None of the circumstances that typically produced real input are present here," he said. "Ultimately, the president holds all the cards, and the president knows that."
Democrats know that, too, which is why they are trying to put down markers on consultation. But Leahy said they hold one important card, as well. "I have no problem with the fact that the final choice is the president's and the president's alone," he said. "But the final choice of consenting is ours alone."