Newsweek - The Democrats' Dilemma: Fight Now, or Save Their Fire for the Next Round

August 1, 2005
By Howard Fineman and Debra Rosenberg; With Tamara Lipper, Richard Wolffe and Holly Bailey

(Washington) - Wait for the subway in the Capitol and the press will inundate you on the platform. As a former senator, Fred Thompson knew that, which is why he steered Judge John G. Roberts Jr. onto the sidewalk that runs beside the tracks. On rounds of Senate drop-bys last week they were an odd couple: the shy, almost diminutive judge; his towering, foghorn-voiced bodyguard. Amiable but cautious, Roberts chatted about benign matters of Washington establishment life as he strolled: the soaring real-estate prices in Chevy Chase, Md., the virtues of a new book by Richard Haass, a friend who runs the Council on Foreign Relations. Thompson, meanwhile, walked point, looking for signs of danger. He carried in his briefing material the minutely detailed 542-page autobiography of Sen. Arlen Specter, chairman of the Judiciary Committee, which will conduct hearings, probably after Labor Day, on Roberts's nomination to the Supreme Court. "How are things going? Well, here's how," declared Thompson, hefting the tome. "I've got to read Arlen's book!"

No amount of caution and preparation, both men know, will ensure an easy stroll to Senate confirmation. In a culturally divided nation, where constitutional law is politics by other means, conflict is all but unavoidable. Lobbying groups have amassed vast war chests, and ferocious nomination fights don't usually materialize early. "Clarence Thomas had 80 days of bliss and then we all know what happened," said Leonard Leo, a conservative strategist allied with Roberts. Potential enemies are lurking out there, if not yet crowding the Senate corridors. "People are keeping their powder dry," said Ralph Neas, the battle-hardened president of the liberal People for the American Way.

Still, President George W. Bush's surprise launch of Roberts couldn't have gone more smoothly and, Senate insiders say, augurs well for his eventual success. The judge's own personality, contacts and track record are key reasons why. A Washington insider's insider with impeccable credentials, he drew immediate, bipartisan praise across the capital's social spectrum, from his professional colleagues in the elite Supreme Court bar to his fellow parishioners at the Church of the Little Flower in suburban Maryland. Those who scoured the fine print in his relatively few appellate-court opinions found a genuinely cautious judge, a hard-to-attack model of nonactivism deferential to the will of legislatures and the presidency.

And Roberts hardly needed Thompson to supply affability and tact; the judge arrived on the Hill armed with plenty of his own. With Republican Sen. Tom Coburn, an ardent pro-lifer looking for signals on abortion, he discussed family. From Democratic Sen. Dick Durbin, who in 2003 had voted against him for the U.S. Court of Appeals, he accepted a biography about a crusading Southern judge--and, according to a Senate aide, conveyed a sense that he understood the message about the need to fight for the powerless. With Sen. Ted Kennedy, another 2003 "no" vote, Roberts engaged in a blarneython about shared family roots in Ireland.

The White House and its allies weren't relying on Roberts to make his own case, however. The "rollout" was textbook. Before the pick, Bush consulted widely (Democrats dismissed it as largely pro forma). Roberts, according to a senior administration official, "was never red-flagged." By interviewing several candidates late and keeping his pick a secret, the president was able to achieve surprise--and allow Roberts to bask in news cycles of unalloyed praise.

As the choice was announced, conservative allies spread words of reassurance to leaders such as James Dobson of Focus on the Family. "Zero pushback is what we got--none," said Jay Sekulow, a conservative lawyer involved in the effort. On the Hill, Karl Rove lured movement conservatives such as Rep. Mike Spence into the Roberts tent by giving them lead roles in the sales campaign. The off-Hill message machine kicked into gear, too, with TV and radio ads calling on the Senate to give Roberts a prompt, fair hearing.

Flummoxed democrats responded cautiously. Politics is a game of comparison, and Roberts benefits from who he isn't--hard-core federal appeals court Judge Michael Luttig, for example. "Luttig would have produced all-out war," said a top Senate aide, who insisted on anonymity to protect his boss's options. "Bush threaded the needle with Roberts." The bipartisan "Gang of 14" tentatively concluded that Roberts, unlike some other lower-court contenders, should not be considered filibuster material. "The White House didn't try to give us somebody they'd dug up from the filibuster graveyard," said Sen. Lindsey Graham. Knowing that they may have to deal with two or three other nominations, the Democrats seem inclined, at least for now, to save their ammunition for more desperate battles. Democrats may also want to pipe down on Roberts so they can focus on Rove's role in the CIA leak probe. "This could be at least a three-act play," said the Senate aide.

But the first act hasn't been written yet. It could get nasty and, perhaps inevitably, personal. Pro-choice groups went on the attack, worried that Roberts, with his instinct to defer to legislative powers, would sanction state-created restrictions on abortion even if, as he said in his previous confirmation hearing for the appellate court, he regards Roe v. Wade as "settled law." "We know it's an uphill battle here," said Nancy Keenan, president of NARAL Pro-Choice America. But that doesn't mean they won't try. GOP defenders will cry foul, accusing the Democrats of making an issue of Roberts's Roman Catholic traditionalism--even though White House allies used that part of his profile to reassure conservatives. Democrats will demand access to Roberts's memos from his time as deputy solicitor general (the White House is certain to say no). They may try to unearth his tax returns, or even the documents he and his wife filed when they adopted their two children. Some are questioning his wife's membership in a group called Feminists for Life.

But as he made his rounds, Roberts not only had Thompson on his side, but history. It helps--a great deal--if the president who nominates you is a member of the same party that controls Congress. In fact, says historian Michael Beschloss, the success rate under those circumstances is 96 percent. A cautious judge couldn't ask for better odds.