Roberts Poses Calculus Test for Democrats

WSJ.com - JEANNE CUMMINGS : Senators Weigh Whether Vote Should Send a Message to Bush, Liberal Base or to Centrists
"Chief Justice nominee John Roberts is all but certain to be approved by the Senate Judiciary Committee Wednesday and the full Senate next week. But the vote involves a host of political calculations for Democrats struggling to satisfy their liberal base and reach out to moderate voters.

"I literally have not made up my mind. I really don't want to talk about it anymore," Sen. Dianne Feinstein (D., Calif.) said Tuesday in the Capitol as she backed away from a crowd of reporters into an elevator.

For President Bush, whose approval rating has dropped in recent polls, the vote tallies also matter as he moves to fill a second vacancy on the Supreme Court. Many Democratic votes against Judge Roberts -- who is widely seen as conservative but has kept his political leanings to himself -- would suggest a tougher fight against a nominee with a clear stance against abortion rights. But that is just what the president's base is demanding.

Mr. Bush meets at the White House this morning with Senate leaders to discuss how to proceed in picking a successor for retiring Justice Sandra Day O'Connor. Among the group will be Senate Minority Leader Harry Reid of Nevada, who Tuesday took to the Senate floor to announce his opposition to Judge Roberts. "This is a very close question for me," Mr. Reid said in his speech. "But I must resolve my doubts in favor of the American people whose rights would be in jeopardy if John Roberts turns out to be the wrong person for the job."

Judge Roberts's intellectual strength is obvious, Mr. Reid said later, but the senator wasn't "too sure if his heart was as big as his head."

Yet earlier in the day, at the Senate Democrats' weekly caucus lunch, Mr. Reid made clear that his fellow partisans were free to follow their own consciences on the matter, a move that he said will likely lead to "plenty of votes" for the nominee, who is currently on the District of Columbia Court of Appeals. "You can only go to the well so many times," Mr. Reid told reporters. "This just wasn't one of the times I wanted to."

New York Sen. Charles Schumer has told colleagues that Judge Roberts overall acquitted himself well before the committee. But a yes vote could undermine Mr. Schumer's ability to raise money from anti-Roberts donors for the Democratic Senatorial Campaign Committee, which he now heads. When asked Tuesday if he had made up his mind, Mr. Schumer answered, "Nope."

Similar battles are bedeviling Democrats not on the committee. Some moderates, such as Florida's Sen. Bill Nelson and Nebraska's Ben Nelson, face re-election next year in Republican-leaning states and are eager to pocket some centrist credentials by voting for Judge Roberts. Mr. Nelson of Nebraska said Tuesday he has "not seen anything that would cause me to vote against" the nominee. Another red-state Democrat, Max Baucus of Montana, said, "I'm inclined to vote for him."

By backing Judge Roberts, some Democrats argue, the party will have more credibility if it takes on the president's nominee for Justice O'Connor's seat, one that arguably is more important because she has played a critical role in rulings on issues such as affirmative action and abortion rights.

"It makes the case that they are mindless obstructionists much weaker," says Ross K. Baker, a professor of political science at Rutgers University in New Jersey.

But liberal activists are near unanimous in opposing Judge Roberts, who they say echoed the pre-appointment positioning of conservative Justices Antonin Scalia and Clarence Thomas. They are pressing Democrats to vote against Judge Roberts to send a message about the party's priorities. Those arguments likely will weigh heavily on Indiana Sen. Evan Bayh and New York Sen. Hillary Clinton, who both have presidential ambitions and are trying to juggle the left-leaning voters in the party's primaries with general-election voters, who might favor a more centrist approach. "I have not" decided, Sen. Clinton said Tuesday.

Whatever the Democrats decide, they should do so based on their own political calculations, because it is unlikely to sway the White House's thinking, says David Gergen, a former adviser to four presidents. If they oppose Judge Roberts, the White House will conclude "there's no way to please them, so why even consider sending a moderate," Mr. Gergen said. If they vote for him, White House advisers could argue "those guys are patsies. We can roll over them."

The politics of the next high-court appointment are complicated by President Bush's decision to switch Judge Roberts's nomination from the O'Connor seat to that held by Chief Justice William Rehnquist, who died of thyroid cancer earlier this month. Democrats had signaled that filling the Rehnquist seat with another conservative wouldn't spark a major fight, since it wouldn't tip the court's balance significantly. The O'Connor seat is another matter, and Democrats vow to give that nominee closer scrutiny, because that justice could represent a swing vote on the landmark abortion-rights case, Roe v. Wade. That also is why social conservatives have stepped up their lobbying of the White House.

People familiar with the administration's efforts say the White House is scouring the federal-court benches for a female judge who could hold up under committee questioning. These people also say the administration is looking for a nominee whose record is conservative enough to appeal to the party base but not so sharp as to give ammunition to Democrats, who note that public polls show that most Americans don't want to see Roe v. Wade overturned.

White House Chief of Staff Andrew Card has been calling senators seeking recommendations. Mr. Reid said that at this morning's meeting, he will urge the president not to rush the next nomination, so that the Senate can work on other matters. He also warned that not all confirmations "are going to be easy like this one" -- referring to Judge Roberts -- and that he would consider it a "sharp poke in the eye" if the president sent up the name of a judge whose nomination had been the target of a Democratic filibuster.

That caution would rule out such candidates as Fifth Circuit Judge Priscilla Owen and D.C. Circuit Judge Janice Rogers Brown, who secured their court seats this spring after a bipartisan Senate compromise. Among the names circulating are Fourth Circuit Judge Karen Williams, Ninth Circuit Judge Consuelo M. Callahan and Fifth Circuit Judge Alice M. Batchelder.

Many Bush associates think the president is determined to pick his friend and loyal aide, Attorney General Alberto Gonzales. But some conservatives would be cool to that choice, saying Mr. Gonzales isn't sufficiently opposed to affirmative action and abortion rights.

Scott Reed, who ran Republican Bob Dole's 1996 presidential bid, says Mr. Bush's weak position leaves him few options. "Bush has got to go right on this choice or his base will totally implode," Mr. Reed says."