Commentary: the unmentioned factor
on Sep 15, 2005 at 11:14 am
Judge John G. Roberts, Jr., has now finished his appearance before the Senate Judiciary Committee on his nomination to be Chief Justice. The only real question about his prospects, it appears, is how many votes he will get from Democratic senators. (The hearing continues Thursday afternoon with outside witnesses, but no one expects them to make a difference.) A factor that looms large now in answering the question about Democratic votes is the second vacancy that remains for now in the background — the seat from which Justice Sandra Day O’Connor expects to retire.
That approaching vacancy has gone almost completely unmentioned during the Roberts hearings over the past four days, but it seems sure to become a central consideration as Democrats ponder how they will vote on Roberts. The judge, by who he is and especially by how he has performed in the witness chair, has made it more difficult for Democrats to vote against him to replace Chief Justice William H. Rehnquist. That has been most evident, this week, in the anguished musings of Sen. Dianne Feinstein, California Democrat, who openly confesses to facing “a dilemma.” Sharing that dilemma, to some extent, seem to be such hardy Democratic liberals on the Committee as Sens. Joseph Biden of Delaware and — more surprisingly — Charles Schumer of New York.
That phenomenon, by itself, would tend to make a no vote on Roberts less credible. But a no vote this time also could have a political effect that may well lessen the effectiveness of any resistance that Democrats very likely will put up when President Bush sends up a nominee to replace Justice O’Connor. An appearance of opposition for opposition’s sake would quickly be labeled obstructionism, and that could cost Democrats popular support if they do mean to contest the next nominee. Utah’s Sen. Orrin Hatch, a senior Republican on the Judiciary Committee, was apparently thinking along these lines on Wednesday when he told Judge Roberts: “If people can’t vote for you, then I doubt that they can vote for any Republican nominee.”
The President is, of course, still pondering the O’Connor succession, and has given no reliable hints of what he is likely to do. But few political observers expect him to choose someone who will be more acceptable to Democrats than Roberts has turned out to be. Considering those assumed to be on the President’s short list for that vacancy, not one would be as appealing to Democrats. Thus, there is virtually certain to be a fight — far more energetic, and perhaps less predictable on outcome — when a new nominee is put forth.
Although there has been no point during the Roberts hearings when the Democrats showed they had any chance of blocking his nomination, they have made it very plain that they are capable of significant resistance. For all of the ease of Roberts’ handling of questions from that side of the podium, and despite the fact they know they are going to be out-voted, the Democrats have sent a message that they do not intend to let any nominee go unchallenged. And, perhaps more importantly, they have shown that the process can get testy at times, even with a nominee as unfailingly courteous as Roberts has been.
Democrats are definitely aware that the balance of power on the Court is more likely to shift with a replacement for O’Connor than with Rehnquist’s successor. And their performance this week has disclosed their agenda for the next time around: focusing on the right of privacy and Roe v. Wade, on affirmative action and employment rights, on voting rights, presidential power, and more generally on Congress’ authority to emact progressive legislation. They have thoroughly tested these themes, and honed their arguments.
In a way, therefore, this week has turned into a dress-rehearsal for the next nomination hearing. And, the chances are, the Democrats’ task the next time around may well be made somewhat easier. It is hard to imagine a nominee who would be as talented a witness as Roberts has been, or one as deft as he has been in neutralizing the possible points of opposition. Moreover, despite the vivid conservatism that was on display in the thousands of pages of Roberts memos written as a young government lawyer, the next nominee probably will be a more ideological conservative, certainly more visibly so. (The President could hardly satisfy his most conservative following by using the O’Connor succession to nominate a consensus figure.)
To some degree, then, it could be argued that the advantage may shift, perhaps noticeably, to the Democrats with the next nomination. But that is an advantage that could be largely thrown away, in advance, by an array of hard-to-explain Democratic votes against Roberts.
