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Dems Will Wait and See on Roberts

The Supreme Court justice nominee's name is out — and he's not who Capitol insiders expected.

"I congratulate the president on confusing everyone in Washington," joked former Sen. John Breaux on Tuesday following President Bush's prime-time address.

The president on Tuesday night named Judge John G. Roberts Jr. (search) to replace retiring Justice Sandra Day O'Connor. Earlier on Tuesday, Washington was abuzz with news that Judge Edith "Joy" Clement, declared by court-watchers to be a moderate conservative, was Bush's choice.

But just one hour before Bush's 9 p.m. EDT announcement, administration officials announced that Roberts, who served former Presidents Ronald Reagan and George H.W. Bush and is seen as a more reliable conservative, would be named.

On Wednesday afternoon, Roberts, a former clerk to Justice William H. Rehnquist, will call on Majority Leader Sen. Bill Frist, R-Tenn. He is then expected to make a quick round of courtesy calls on Capitol Hill, visiting with all members of the Senate Judiciary Committee, and prepare for hearings, which could be in late August or early September. If all goes well for the nominee the Senate could schedule a confirmation vote before the court reconvenes on Oct. 3.

While Republicans were roundly thrilled with the president's choice, Democrats who remembered being wary of Roberts during his confirmation hearings for the U.S. Court of Appeals for the District of Columbia Circuit two years ago expressed their displeasure.

"The president had an opportunity to unite the country with his Supreme Court nomination, to nominate an individual in the image of Justice Sandra Day O'Connor. Instead, by putting forward John Roberts' name, President Bush has chosen a more controversial nominee and guaranteed a more controversial confirmation process," said Illinois Sen. Dick Durbin, D-Ill., who was one of three Democrats who voted against Roberts in 2003.

But other Democrats were more measured in their remarks.

"The nominee will have an opportunity to testify before the Senate Judiciary Committee and make his case to the American people," said Minority Leader Sen. Harry Reid, D-Nev. "I will not pre-judge this nomination. I look forward to learning more about Judge Roberts.

Shortly after Bush named Roberts as his pick, Democrats on the Senate Judiciary Committee circulated a revised set of talking points.

"The president has chosen someone with suitable legal credentials, but that is not the end of the inquiry," the internal document reads. "Justice O'Connor has been an inspirational figure to Americans. The Senate will review carefully the record of her replacement to guarantee that this person respects the rights and freedoms of all Americans as she did."

A Middle-of-the-Road Nominee

With some of Bush's previous judicial picks for lower court positions like Priscilla Owen and Janice Rogers Brown, Democrats blasted the White House for not consulting more with them on prospective nominees. They said this lack of consultation led to the near-deadlock that occurred in the Senate when Republicans threatened the use of the so-called "nuclear option," which would have forced an end to Democrats' filibuster of those nominees they considered too conservative for the bench.

At the time, the "Gang of 14" senators came together to forge a compromise to avoid such showdowns in the future, and agreed to filibuster judicial nominees only in "extraordinary circumstances."

Sen. Barbara Boxer, D- Calif. (search), who is not a member of the Gang of 14, told FOX News that because O'Connor was the swing vote on many controversial issues, lawmakers will take a long, hard look at a replacement nominee to make sure he is more middle-of-the-road.

"There's no question about it — there's a lot at stake, so everything has to be out on the table," Boxer said before Roberts' name was released. "We want to make sure that the person who’s elected will be from the mainstream of thinking … is in the spirit and tradition of Sandra Day O'Connor (search).

"I would predict that the vast majority of the Democrats in the Senate will say 'Let's look at this person's record, let's get our questions together on what we want to ask this nominee,'" Boxer added.

Judiciary Committee Chairman Sen. Arlen Specter, R-Pa., who noted Roberts' impeccable credentials after the announcement was made, had said prior to it that he wanted Bush to nominate someone who could keep the balance on the court. But Sen. Lindsey Graham, R-S.C., one of the centrist negotiators, told FOX News on Tuesday that Bush promised during his reelection campaign in 2004 to nominate a conservative and Democrats should have expected such a choice.

Graham said that simply being conservative is "no longer an extraordinary circumstance" as defined by the filibuster agreement and the president is in a good position to send a conservative judge to the Senate for confirmation.

"I couldn't be more pleased with the tone I hear in the Senate," Graham said. "Bottom line is that the president is in the best position since I've been here in 2002 to send a nominee to the Senate, who is conservative, who will be confirmed by the United States Senate."

Boxer countered that when issues such as contraception and abortion come before the Supreme Court, "I believe it's an extraordinary circumstance when these rights disappear."

Sen. John McCain (search), R-Ariz., said Tuesday he expects the Gang of 14 to meet either Wednesday or Thursday to discuss the nominee.

Advise and Consent

The White House was quick to point out that the president had consulted with 70 senators during his decision-making process, including three-quarters of the Democratic caucus.

Republican Sens. Jon Kyl of Arizona and John Cornyn of Texas said Tuesday that Bush had gone above and beyond the usual process in consulting with senators.

"My guess would be that when historians write about this, there's been more consultation by President Bush on this occasion than ever before in the history of the republic," Kyl said.

Sen. Ben Nelson, D-Neb., described a Tuesday Democratic caucus lunch focusing on the potential court picks as "very tempered."

"The climate was very matter-of-fact. There was no speculation ... I'm not aware of any real criticism [of the consultation process]," said Nelson, a member of the Gang of 14. "The president has been reaching out. Most people thought he was reaching out."

But not all Democrats were of that mindset; some criticized what they said was a lack of consultation at the level they hoped to have.

"So far, no one that I know of [on our side] has been consulted in the way we wanted," Sen. Chuck Schumer, D-N.Y., said late Tuesday afternoon.

Sen. Patrick Leahy, the ranking Democrat on the Senate Judiciary Committee, also said he wanted more from the White House.

"Well, there has been some reaching out to Democrats but certainly not to the extent we saw during the Reagan or Clinton administration," Leahy said.

Reid acknowledged that the president "spent some time" talking with Democrats about whom he may nominate.

"Whether that has been [meaningful consultation] depends on who the president gives us," Reid said ahead of Bush's Tuesday night announcement. "If this is a non-controversial candidate, there's no reason we can't take August to read the briefs, wait for the FBI investigation, the Judiciary Committee investigation ... there's no reason we can't do hearings early in September."

Reid added that he recognized it's not the Senate Democrats' place to choose the nominee.

"You know, we're not co-nominators. That's not the Constitution. The Constitution ... has an advise and consent qualification and we're going to do our best to give the president that," he said.

Sen. Ted Kennedy (search), D-Mass., said Tuesday he wants the nominee to "bring the nation together … rather than further divide us."

"To reach that result, consultation must be more than a one-way street," he said. "No one is suggesting that senators co-nominate candidates for the Supreme Court. But for members of the Senate to provide advice to the president, there must be a real discussion and a two-way conversation about specific candidates … the result will be a distinguished nominee who is acceptable to the vast majority of the American people and who will easily be confirmed."

Bush has said more than once that senators should expect a conservative nominee to put forward. He's also voiced his concern with so-called "activist judges" on the bench; jurists to whom he and some other Republicans have objected are those that have taken certain issues such as marriage and quality of life into their own hands, often twisting constitutional law according to their ideological bent.

"I do have an obligation to think about people from different backgrounds that have shared the same philosophy, people who will not legislate from the bench," Bush said Tuesday during a press conference with visiting Australian Prime Minister John Howard.

The internal memo passed around by Democrats and obtained by FOX News states that the "standards for a nominee are clear. Does this nominee:

— Protect the individual rights and freedoms of Americans?

— Judge cases fairly, with an open mind, and without a political agenda?

— Protect all Americans and not side with powerful special interests?

— Meet the highest ethical standards?"

While both sides appear to be arguing the same points, Roberts will likely find that the parties measure those questions according to different criteria.

FOX News' Julie Asher and Jim Mills contributed to this report.