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Home arrow Byron York arrow Roberts opposition as a bloc would hurt Dems' credibility
Byron York PDF Print E-mail
Roberts opposition as a bloc would hurt Dems' credibility
Posted: 09/15/05 12:00 AM [ET]

“Look, it’s gonna be a party-line vote in the committee,” says one well-connected Republican working for the confirmation of Supreme Court Chief Justice nominee John Roberts.

“A party-line vote,” says another clued-in Republican.

“Party-line vote,” says a third.

Although no Democrat on the committee has come out and said it, the growing assumption is that all eight of them will vote against Roberts.

Just why they might do so is not entirely clear. After all, back in 2003, when Roberts was confirmed for a seat on the federal courts of appeals, just three committee Democrats — Edward Kennedy (Mass.), Charles Schumer (N.Y.) and Dick Durbin (Ill.) — voted against him.

Patrick Leahy (D-Vt.) voted for Roberts. Joseph Biden (D-Del.) voted for him. Herb Kohl (D-Wis.) voted for him. Dianne Feinstein (D-Calif.) voted for him. Russ Feingold (D-Wis.) voted for him. And then-Sen. John Edwards (D-N.C.) voted for him.

So why would they vote against him now?

A better question might be, why would they vote for him now? Consider the reasons.

First, any vote for Roberts will bring the unending wrath of liberal interest groups that have read in the newspapers that the Democratic Party is simply resigned to Roberts’s confirmation. And, second, a vote against Roberts will be, to put it bluntly, pretty cheap. Since he’ll be confirmed in the 55-Republican-member Senate, why not?

In addition, changing their minds will simply not be a big problem for formerly pro-Roberts Democrats. They can argue that (a) the job for which Roberts is now nominated is much more important than the earlier confirmation, (b) Democrats now know much, much more about John Roberts and (c) they could not make a fully informed decision without documents currently being withheld by the Bush administration.

Beyond that, each member will be able to cite reasons of his own.

Leahy has laid the groundwork for making his vote, in effect, a protest against the Bush administration’s handling of the issue of civil liberties in the war on terrorism.

Biden said on the first day of the hearings that, unless Roberts has changed since his days as an aide in the Reagan administration, Biden would vote against him.

Kohl will probably do what other Democrats do — it’s unlikely he would stand alone for Roberts.

Feinstein has made Roe v. Wade the ultimate test for a nominee, and Roberts has not given her the assurances she wants.

Feingold will likely base his opposition on discomfort with Roberts’s position — still not entirely clear — on some civil-liberties issues. (Edwards, of course, is gone and was not replaced on the committee.)

Put them all together — adding Kennedy, Schumer and Durbin — and you get that 10-8 party-line vote.

The only problem for committee Democrats is that if they all vote against Roberts, what are they going to do with the next nominee, coming soon, to fill the seat of Justice Sandra Day O’Connor?

Voting unanimously against such an eminently confirmable nominee — Roberts — will make it more difficult to vote against the next nominee, who may be more objectionable, from a Democratic/People for the American Way/Alliance for Justice point of view.

That doesn’t mean they won’t be able to do it, but, simply put, Democrats will have less credibility to reject a more “objectionable” candidate if they have voted against Roberts on the basis of, well, not very much.

Doing so would repeat, on the grand scale of the Supreme Court, the strange and sometimes arbitrary confirmation process Democrats conducted when they ran the Judiciary Committee in 2001-2002.

Back then, they confirmed Michael McConnell to a seat on the 10th Circuit Court of Appeals, even though McConnell had written an op-ed in The Wall Street Journal titled, “Roe v. Wade at 25: Still Illegitimate” in which he called the reasoning of the Roe decision “an embarrassment to those who take constitutional law seriously.”

And yet Democrats, led by then-Chairman Leahy, voted for McConnell.

And then they blocked Priscilla Owen, not over some fundamental and strongly-worded attack on Roe but because of her decision on a secondary issue in a Texas law that dealt with parental notification — not consent, just notification — for underage girls who seek an abortion.

And then they blocked Miguel Estrada over nothing.

So now, those same committee Democrats might vote as a bloc against Roberts.

Why? Because despite his sterling credentials — he is, as Sen. Biden said, intelligent, decent and honorable — and even though he appears as confirmable as any judge who has ever come before the committee, they simply cannot bring themselves to support a conservative Bush nominee.

“We are rolling the dice with you, judge,” Biden said yesterday.

Yes, that’s true — to the same extent that it’s true of any other confirmation.

But in the end, Democrats might be rolling the dice with something much closer to home: their own credibility.

York is a White House correspondent for National Review. His column appears in The Hill each week. E-mail: This email address is being protected from spam bots, you need Javascript enabled to view it

 
 
 
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