Democrats Split on Roberts Nomination

By David Corn, The Nation. Posted September 22, 2005.

What's a Democrat to do?

On September 20, Democratic Senate leader Harry Reid issued a passionate statement denouncing the nomination of John Roberts Jr. as chief justice of the Supreme Court. He said he would vote against Roberts, and he pointed to memos Roberts had written in the 1980s in which Roberts took hard-edged conservative stances on civil rights, privacy issues and other matters. Reid also cited the Bush administration's refusal to release memos Roberts had written when he served in the solicitor general's office during the first Bush administration. "We should only vote to confirm this nominee if we are absolutely positive that he is the right person" for the post, Reid said. His position was unambiguous.

On September 21, Senator Patrick Leahy, the ranking Democrat of the judiciary committee, declared that he would vote for Roberts. Leahy released a lengthy statement that could have justified either a nay or aye vote. He said he was "extremely disappointed by the lack of cooperation from the Administration....The Bush administration treated senators' requests for information with little respect. Instead, for the first time in my memory, they grafted exceptions from the Freedom of Information Act to limit their response to Senators' requests for information. They stonewalled entirely the narrowly tailored request for work papers from 16 significant cases John Roberts handled when he was the principal deputy to Kenneth Starr at the Solicitor General's office during the President's father's administration." Leahy also complained that Roberts "disserviced himself" by being tight-lipped about his judicial views during his confirmation hearings. And Leahy voiced concern about where Roberts would lead the court:

Judge Roberts's work in the Reagan and Bush Justice Departments as well as his formative period in the Reagan White House seem to have led him to a philosophy of significant deference to presidential authority.....Maybe this deference was a principal basis on which this President chose him....This is a fundamental question. We know that we are in a period in which the Executive has a complicit and compliant Republican Congress that refuses to serve as a check or balance. Without the courts to fulfill that constitutional role, excess will continue, and the balance will be tilted.

But Leahy put aside these and other concerns. Why? Because he believes "Roberts is a man of integrity." He explained:

I can only take him at his word that he does not have an ideological agenda. For me, a vote to confirm requires faith that the words he spoke to us have meaning. I can only take him at his word that he will steer the court to serve as an appropriate check on potential abuses of presidential power. I respect those who have come to different conclusions, and I readily acknowledge the unknowable at this moment, that perhaps they are right and I am wrong. Only time will tell.

"Only time will tell" is not much of a bone to toss to the Democratic base, which has organized against Roberts and yearns for a fight. Once again, the Democrats are splitting on an issue that its most ardent supporters care much about. Just like Iraq. Ted Kennedy (no surprise) is voting against Roberts. So is John Kerry. Max Baucus, a Montana Democrat, is voting for Bush's pick. Some progressive bloggers have tried to target Baucus, depicting him as a Democratic turncoat. Are they now going to do the same with Leahy, an otherwise reliable liberal? And can any Democrat who wants to run in 2008 vote to confirm Roberts? There is much anticipation regarding Hillary Clinton's vote. Perhaps Leahy has given her the cover she needs to vote for Roberts. Still, imagine the debate during the Democratic presidential primaries of 2008 if Roberts reaches the court and then weakens abortion rights. Candidates who voted for Roberts could expect to face harsh questions from candidates who opposed Roberts as well as from potential supporters and voters.

David Corn is the Washington editor of The Nation and author of "The Lies of George W. Bush: Mastering the Politics of Deception." He writes a blog at davidcorn.com.

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