As Washington vacations, preparations continue for the confirmation hearings for Judge John Roberts — the president's choice to replace Sandra Day O'Connor (search) on the Supreme Court.
Wrangling between Democrats and Republicans continue over how many documents will be released and when they might be made available. If I were to stack all of the letters that have been exchanged on this topic, it would look like a New York City phone directory. There have already been lengthy negotiations over the starting date for the hearing and a dispute over which hearing room to use. This is all pretty standard Washington bickering; don't read much into all that.
But lately, knowledgeable sources have suggested that, short of some unforeseen revelation, Democrats might give Judge Roberts a pass. Oh sure, they'll grill him; they'll ask tough questions as is their constitutional duty, but they will ultimately confirm him.
Why? The reasoning goes something like this:
While Roberts is clearly a conservative jurist, the Democrats’ initial reading of his record shows him to be fairly reasonable and open-minded. The Democrats have had the chance to size him up in one-on-one meetings and have come to the conclusion that he will come across in hearings as a sensible man with a charming, even-keeled personality. In short, he will be appealing to those at home watching the hearings on TV (and trust me on this, every broadcast news organization is planning extensive wall-to-wall coverage of the hearings).
Some Democrats may look at some of his past legal writings and point to a few positions that give them heartburn. Republicans will easily bat that away by making the case that lawyers are hired guns — advocates for their clients — and such legal writings do not reveal how they actually feel about a given subject. So at the end of the day, unless something big crops up, the Democrats will have a hard time pointing to anything disqualifying in Roberts’ record.
From the Democrats’ point of view, Roberts is probably about as moderate a nominee as they are likely to get from this president. If they knock off Roberts, they can be assured that the next nominee President Bush sends them will be a serious conservative hard-liner. So, the reasoning goes: Why not rough him a bit and send him on his way? Doing so would give Democrats greater credibility when the next nominee comes along. They could then easily argue, " Hey, we're reasonable people. We gave you Judge Roberts, but we have real concerns about this nomination." In Washington, this is known as saving your ammunition for the bigger battle to come.
Initially, I didn't think much of this scenario, but, after pondering it for a while, I think it makes some sense. Democrats have surely noticed Chief Justice William Rehnquist (search) has been to the hospital at least a couple of times recently. The chief has shown remarkable resiliency since being diagnosed with cancer, but when his time on the court is over there could well be two big battles ahead. The president might choose to promote someone like Justice Antonin Scalia (search) or Justice Clarence Thomas (search) to be the new "chief." That would open up another slot on the highest court in the land. From the Democratic perspective, it might make sense to save their fire on Roberts — and gird for one or both of the coming battles.
Let me also suggest that such signals coming from Democrats might also be a head-fake, but without 41 senators unified in opposition to the Roberts nomination — it's a done deal. So far there doesn't appear to be anything in Robert's record that would unite 41 Democrats against Roberts.
We will be talking about the Roberts nomination Saturday and Sunday on “Weekend Live” (I'm filling in for Tony Snow on Saturday). I hope you'll join us.
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Brian Wilson is a congressional correspondent for FOX News and anchor of the Sunday edition of "Weekend Live."