Published July 24, 2005
WASHINGTON – Among the senators deciding whether to put John Roberts (search) on the Supreme Court, no one may have more at stake than those with designs on the White House in 2008.
For those harboring the slightest interest in a presidential bid, the debate over the first high-court nominee in more than a decade leaves a tricky calculation: what to say — and not to say — about a jurist expected to steer the court to the right but whose enigmatic record makes him difficult to predict.
"It matters a lot for the party activists. It matters some for primary voters. And it matters a little for undecided general election voters," said Jack Pitney, government professor at Claremont McKenna College. "Even if it matters for 5 percent of the electorate — no candidate can ignore that."
In Roberts, Bush chose a federal appeals court judge who has served in Republican administrations and is a certified conservative. He is regarded as possessing a razor-sharp intellect and a judicial record that covers few of the contentious topics capable of energizing special-interest groups.
In the first few days since Bush's announcement, there was little indication of an all-out confirmation battle. Yet some fight is expected as senators scrutinize Roberts' close ties to conservative groups and his writings on abortion and other issues.
The decision of how tough a line to take in that process is most difficult for the least-known senators, said Norm Ornstein, a political analyst at the American Enterprise Institute think tank.
Sens. Joe Biden, D-Del., and Sam Brownback, R-Kan. — two talked about as 2008 candidates — are on the Senate Judiciary Committee, which has initial responsibility for considering Roberts.
Both men may feel the need to steal some of the national political attention being lavished on Sen. Hillary Rodham Clinton (search), D-N.Y., and Sen. John McCain (search), R-Ariz., considered the early 2008 front-runners in the absence of any official word.
For Biden, who has carved a niche as a foreign-policy expert and has been the most open about his White House ambitions, the challenge is to remain statesmanlike while delving aggressively into Roberts' record, Ornstein said.
Biden said Sunday he did not think presidential politics would play a role in how Democrats approach Roberts' nomination. "Whether or not that is the motivation of anyone voting on Roberts or asking questions about Roberts, I'm sure it'll be phrased in that context," he told a Sunday morning news show.
Two years ago, Biden supported Roberts' nomination to the U.S. Court of Appeals for the District of Columbia Circuit. A potential White House hopeful who is no longer in the Senate — John Edwards, the Democratic vice presidential nominee in 2004 — did so as well.
Sen. John Kerry, D-Mass., the party's presidential candidate in 2004, may hope to win the nomination again. On Friday, he urged the White House to release all documents and memos from Roberts' tenure at the Justice Department during the Reagan administration.
Brownback counts his greatest support among religious conservatives. There could be pressure from GOP activists to make certain Roberts isn't another David Souter, the Supreme Court justice named by former President Bush who has often sided with liberal members of the court.
Republican Sen. Rick Santorum of Pennsylvania, also a favorite of the right, could face the same problem.
In the end, said Pitney, supporting Roberts will likely be an easy call for Brownback and Santorum, along with other Senate Republicans considered presidential material — such as Majority Leader Bill Frist of Tennessee and Chuck Hagel of Nebraska.
"I don't think they'll press him very hard because they don't want to blow the nomination," Pitney said.
Potential Democratic candidates face a scary scenario of their own: What if Roberts ends up being the vote that overturns Roe v. Wade, the 1973 Supreme Court decision legalizing abortion?
That prospect led Democratic consultant Dane Strother to offer this advice: "The safe vote is just to vote no. They don't need to filibuster, they don't need to throw a fit. Just vote no."
Pitney said that guidance is especially relevant for Indiana Sen. Evan Bayh, a conservative Democrat who needs to address the problem that he "has no natural constituency among Democratic primary voters."
Even Clinton could do well to follow the "vote no" suggestion, Strother said.
The Roberts nomination presents the New York senator "another opportunity to be centrist," Strother said, and a "yes" vote isn't likely to dent her popularity with the Democratic Party base. But assuming that Roberts' decisions on the court will never bring that vote back to haunt her is too much of a risk, he said.
Like Clinton, McCain may be too well-defined with voters to have to worry about the negative political impact of his vote. In fact, the Roberts nomination seems so far to have offered the Arizona senator, who is liked by Democrats and independents, the chance to shore up his standing with his own party.
Conservatives felt betrayed that McCain was part of the group of seven Republicans and seven Democrats who averted a Senate showdown over judicial filibusters by agreeing to participate in them only in extraordinary circumstances.
Immediately after Bush announced his choice of Roberts, McCain signaled his support and termed Roberts someone who doesn't meet the definition of "extraordinary circumstances."
"If Roberts goes through, it's a big win for McCain," Pitney said.