A six-pronged strategy for defeating Roberts

Tom Curry National affairs writer • Profile • E-mail

WASHINGTON - Although defeating Judge John Roberts, President Bush’s nominee to the Supreme Court, is an uphill climb for Senate Democrats and the liberal groups allied with them, the outlines have emerged of a strategy to challenge, if not defeat Roberts.

Democrats and liberal groups will press Roberts on several fronts, using varied arguments, some short-lived and simple, others more substantive and subtle.

Here are the themes Democrats and liberal advocates were using as Roberts made his second day of courtesy calls to senators Thursday:

Argument One - GENDER: Roberts is male, unlike retiring Justice Sandra Day O’Connor.

Sen. Ken Salazar, D-Colo. released a letter he’d sent to President Bush Wednesday lamenting “that you have missed an opportunity to help create an America that includes women at all levels of our nation’s government.”

And when a female reporter asked Sen. Barbara Boxer, D-Calif. whether she thought it was regrettable that Bush had nominated what this reporter described as “just another white guy” instead of a woman, Boxer agreed that it was regrettable, although she added that commitment to women’s rights was more important to her than just the sex of a nominee.

Argument Two - IDEOLOGY: The ideological make-up of the court is fixed — and Bush is wrong to change it.

“Judge Roberts is no Sandra Day O'Connor,” said Sen. John Kerry, D-Mass., in an e-mail to his supporters Wednesday. “Last night we learned that President Bush wants to replace a woman who voted to uphold Roe v. Wade with a man who argued against Roe v. Wade, and that sends a clear signal that this White House remains bent on opening old wounds and dividing America.”

On each of these cases, decided by a 5-to-4 margin, the outcome might well have been different had Roberts sat in O’Connor’s place:

• Stenberg v Carhart (2000): O’Connor joined the decision striking down Nebraska’s ban on certain abortions which involve dismemberment of the fetus.
• Grutter v. Bollinger (2003): O’Connor wrote the decision upholding the use of racial preferences in the University of Michigan law school admissions department.
• McCreary County v. American Civil Liberties Union (2005) The court, with O’Connor in the majority, held that display of the Ten Commandments in a county courthouse was a government promotion of religion.

Argument Three - EVASIVENESS: Roberts was evasive in his 2003 confirmation hearings to become a federal appeals court judge. He might try the same thing again. Sen. Charles Schumer, D-N.Y. used this argument Wednesday.

“I can’t think of another nominee other than (Bush appeals court nominee) Miguel Estrada who was less forthcoming in the questions when he was nominated to the D.C. court of appeals” in 2003, Schumer said. (Despite this, the Senate confirmed Roberts unanimously.)

Schumer — who stressed that he had not yet made up his mind on Roberts — criticized him for refusing to answer these questions which he posed to him in 2003: “What two current Supreme Court justices do you believe have the most divergent judicial philosophies? How would you characterize the judicial philosophies of each? Of the two you name, which justice do you anticipate you will more closely approximate and why?”

Roberts replied that it wasn’t his job to issue critical reviews of justices of the Supreme Court.

Reminded that Justice Ruth Bader Ginsburg refused to answer several questions during her confirmation hearings in 1993, Schumer brushed that off: “It was a different time” and she was “a consensus nominee.”

Cordial Roberts-Schumer meeting
Schumer had what he called a “cordial” meeting with Roberts for 55 minutes Thursday afternoon and will have another meeting with him next week.

Schumer said they discussed the kinds of questions that senators will pose to Roberts during the confirmation hearings.

The New Yorker handed Roberts a list of 110 detailed questions about past Supreme Court decisions and constitutional law that Schumer intends to ask during the public hearings. Schumer said the list was “not inclusive.”

Roberts told Schumer that “he had ‘modesty in terms of a judge’s role, in terms of precedent and in terms of the legislature.’” Schumer said he expected the nominee “to fill in a little more detail” of this statement.

Asked if he thought he could nudge Roberts toward his views with this series face-to-face meetings, Schumer said, “He’s too smart a man with too much experience and too much confidence, frankly, that he’s going to be nudged because a senator says ‘you ought to think this way.’”

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