Published September 16, 2005
WASHINGTON – The only real question left about Supreme Court nominee John Roberts (search) is how many Democrats will vote for him to become the nation's 17th chief justice.
This week's grueling four-day Senate confirmation hearings only confirmed for most of the Senate's majority Republicans their contention that President Bush's pick to succeed William H. Rehnquist (search) is the perfect choice.
Since Democrats don't plan to filibuster (search), they must decide if it's worth casting a symbolic vote against the 50-year-old Roberts, knowing they can't stop his confirmation and that Bush will soon choose another conservative to replace retiring Justice Sandra Day O'Connor (search), a swing vote on the court.
Senate Minority Leader Harry Reid, D-Nev., has asked his caucus members not to make a decision before a closed-door meeting Tuesday. But Sen. Kent Conrad, D-N.D., thinks about half of them ultimately will vote to confirm Roberts.
There are 55 Republicans, 44 Democrats, and independent Sen. Jim Jeffords of Vermont in the Senate, and "I think he can get from 75 to 80 votes," Conrad told reporters.
That would disappoint liberals, who are hoping the Roberts vote will influence Bush's next pick. It also would surprise conservatives, who say Democrats are too partisan on judicial picks to consider voting for Roberts.
The last three Supreme Court nominees with significant opposition were Robert Bork, who was defeated 58-42 in 1987; Clarence Thomas, who was confirmed 52-48 in 1991, and the late Chief Justice Rehnquist, who was confirmed as a justice in a 68-26 vote in 1971, and as chief in a 65-33 vote in 1986.
No other Supreme Court nominee since 1970 got more than nine "no" votes from the 100-member Senate.
Getting a large number of votes from the Senate is important, said Senate Judiciary Chairman Arlen Specter (search), R-Pa. The other justices' vote counts are often referenced by people when they talk about the court, he said.
"I think there's an element of stature and prestige," he said.
Wendy Long, lawyer for the Judicial Confirmation Network and a former law clerk for Justice Thomas, said the only thing that matters is that Roberts is confirmed.
"Justice Thomas, my old boss, got 52 votes. Justice (Antonin) Scalia got 98 votes," Long said. "But Justice Thomas is no less a justice than Justice Scalia. They have the same vote on the court."
The first Roberts vote will be Thursday in the Judiciary Committee. The panel's eight Democrats aren't talking about how they will vote. "I haven't made up my mind," Sen. Charles Schumer, D-N.Y., said Friday.
Democrats say Roberts didn't answer enough of their questions, and the White House should have released his paperwork from his time working in the solicitor general's office during the George H.W. Bush administration.
But some also are saying the decision will come down to how conservative Roberts will be as Rehnquist's replacement — deeply conservative like Scalia, conservative like Rehnquist or moderately conservative like Justice Anthony Kennedy.
"If I think he's going to be a Justice Scalia, who I like personally very much, I vote no," Sen. Joseph Biden, D-Del., said Thursday. "If I think he's going to be a Kennedy, I vote yes. If I think he's going to be a Rehnquist, I probably vote yes."
Republicans don't believe Roberts has a chance of getting any Judiciary Democrat's vote, saying partisanship will trump any other consideration. "The vote was 10-8 the day President Bush nominated him, the vote was 10-8 when the hearings began, the vote was 10-8 yesterday, and the vote is 10-8 today," Long scoffed.
Anything less than a large Democratic vote against Roberts will upset many of the Democrats' liberal supporters.
Voting for Roberts would make Democrats partly responsible for any decisions the chief justice makes between now and the congressional elections in 2006 and the presidential elections in 2008, said Ralph Neas, leader of the liberal People for the American Way.
"They will have no standing to criticize President Bush, John Roberts and the court for taking away fundamental rights that the American people thought was theirs forever," Neas said.
A strong 'no' vote also tells Bush he shouldn't nominate an ideologically rigid conservative as O'Connor's replacement, said Nan Aron of the liberal Alliance for Justice.
"The fact of the matter is that they're casting a vote on the chief justice, the highest judicial post of our country, the public face of the judiciary, and they should feel confident that when they vote 'No,' they are articulating an important statement about their values," she said.