Which Democrats will vote 'yes' on Roberts?

Tom Curry National affairs writer • Profile • E-mail

WASHINGTON — Chief justice nominee John Roberts seems to be headed for the Supreme Court with the vote on his confirmation set for next week on the Senate floor, but the question of the moment in Washington is which Democrats will vote “yes.”

A couple of centrist Democrats, Sen. Ben Nelson of Nebraska and Sen. Mark Pryor of Arkansas, have already signaled they'll probably vote for Roberts. Even apart from Roberts's impeccable credentials and self-assured testimony, "aye" votes would make sense, given the political coloration of Nebraska and Arkansas.

But the most intense focus is on potential Democratic presidential contenders Sens. Joe Biden, Evan Bayh, Hillary Clinton, and Russ Feingold.

Would the risks they’d run in voting for Roberts outweigh any gain from voting "yes"?

Sarah Binder, a political analyst at the Brookings Institution, a Washington think tank, said Democratic senators “are thinking twice about what position they want to take here, lest they be accused of obstructionism… by voting against Roberts.”

Democrats, she said, are “thinking carefully that they need to improve or sustain their ability to be critical of the next nominee and it may cause them to say okay, and we're going to go ahead and vote for Roberts….”

There’s a lot at stake for the minority party. For Democrats, the Supreme Court is the last remaining stronghold of constitutional protection of abortion, gay rights, and environmental laws.

Intense interest in blogosphere
Bob Brigham, a Democratic blogger who writes for Swingstateproject.com said Democratic activists are following the Roberts battle more closely than they did the 1991 Clarence Thomas saga.

“With the decentralization of politics and the blogs, there are a lot more people paying attention. The Democratic base is following this very closely,” Brigham said.

If he is confirmed, Brigham predicted, “Roberts is going to have a chance to hand down some serious decisions before the 2008 presidential race heats up. And every bad decision he makes will be blamed on any Democratic senator who votes for him. Democratic senators will be held accountable individually for the bad decisions he makes between now and 2008.”

Senators face a dilemma: Bush seems unlikely to reveal whom he will choose for the Sandra Day O’Connor spot on the court before the Roberts vote. Democrats won't know if the next nominee will be more palatable or less palatable, from their point of view, than Roberts is.

And it is not as if the Democrats have much leverage over the choice of the next nominee: Bush can listen politely to their suggestions, but need not nominate a "moderate" such as O'Connor in order to get his nominee confirmed.

The 55 Republicans in the Senate give the president leeway to work with: he can afford to lose a few of them and still end up winning.

The next nominee could do as Roberts did and refrain from making any commitment to uphold the Roe v. Wade abortion decision, the crucial issue for many Democrats.

Roberts said that Roe was a precedent “entitled to respect under principles of stare decisis,” which means it could be overturned if the constitutional foundations of the ruling “had been eroded by subsequent developments.”

If Democrats vote to confirm Roberts, how could they then turn around and use the filibuster (endless debate) to block a confirmation vote on the next nominee, if, as expected, that nominee, like Roberts, refrains from explicitly endorsing Roe v. Wade?

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