BAYH
Jay Laprete  /  AP file
Will it be 'aye' or 'no' on fellow Hoosier Roberts from Sen. Evan Bayh, D-Ind.?
By Tom Curry National affairs writer
msnbc.com
updated 9/20/2005 8:54:32 AM ET 2005-09-20T12:54:32

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.

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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?

Dean calls for Roberts rejection
The Democratic Party’s leader, Howard Dean, urged Democratic senators Friday to reject Roberts. The nominee “missed his opportunity to disavow, back away from or explain the litany of right-wing views on key Constitutional freedoms he has advocated against throughout his career,” Dean said. “This is not the time for a Chief Justice bent on rolling back the progress we have made over the past fifty years….”

And the nation’s leading voice of liberal opinion, the New York Times, also called on senators to reject Roberts.

“He has not met the very heavy burden of proving” he has the qualities to be chief justice, the Times said in an editorial Sunday, citing his refusal to endorse abortion, church-state separation, gay rights, and the right of illegal immigrant children to attend public school.

The Democratic Party’s most powerful constituencies — gays, feminists, African-Americans, environmentalists — would be chagrined to see Democratic senators join the Republican majority to give Bush a landmark victory by confirming Roberts.

Even before Roberts testified, the gay rights lobbying group, the Human Rights Campaign opposed him.

“With Judge Roberts on the Court, we can envision a day when the landmark Lawrence v. Texas case is overturned and millions of Americans lose the right to privacy in our own homes,” HRC said.

And in fact during last week’s testimony, Roberts did not make a commitment to uphold Lawrence v. Texas, the 2003 decision that gave constitutional protection to same-sex sexual relations, even though he did endorse the predecessor of that decision, the 1965 ruling in Griswold v. Connecticut, which gave protection to marital couples’ use of contraceptives.

Biden dissatisfied with Roberts's answers
Of the potential 2008 contenders, Biden’s vote seems the easiest to predict.

The Delaware senator was entirely unsatisfied with the answers Roberts gave during his testimony before the Judiciary Committee.

Biden dismissed as “preposterous” Roberts’s argument that if he gave a senator an answer on a specific case that might come before him, he’d be making a commitment to vote a particular way in exchange for the senator’s vote.

After all, Biden argued, whatever answer Roberts might give now isn’t binding on him because “he’s entitled to change his mind” if he gets confirmed and joins the Court. Given how scornful Biden was of Roberts’s testimony, it is hard to imagine him voting for Roberts.

Biden also voted against Republican Supreme Court nominees Clarence Thomas in 1991, William Rehnquist in 1986, and Robert Bork in 1987.

Here’s a look at the other potential contenders and how they might line up on Roberts:

Bayh: The conventional wisdom is that the Indiana senator will be the centrist in the Democratic race and that he therefore must move to the left between now and 2008 to align himself with Democratic primary voters, who skew to the left of the general electorate.

Bayh supports Roe v. Wade, but voted for the 2003 ban on the procedure known as partial-birth abortion.

He has already tracked left by voting against the nomination of Alberto Gonzales to be attorney general, as well as voting “no” on Bush appeals court nominees William Pryor, Janice Rogers Brown, and Priscilla Owen.

Clinton: A “yes” vote would disappoint her fans among pro-abortion rights and gay rights groups, but would show that she has enough self-assurance to move to the right with an eye on the 2008 general election. It would be a declaration of independence from Dean, the New York Times, and the liberal consensus.

Like Bayh, she voted “no” on the nominations of Gonzales, Pryor, Brown, and Owen.

Feingold: Unlike Bayh and Clinton, Feingold serves on the Judiciary Committee and got a chance to show his skills as an interrogator by grilling Roberts last week.

Feingold implied strongly that he thought Roberts ought to have recused himself from hearing the appeal of Guantanamo prisoner Salim Hamdan because his work on the Hamdan case coincided with his interviews by White House officials for a Supreme Court opening and thus may have created a conflict of interest.

Feingold, too, voted “no” on the nominations of Gonzales, Pryor, Brown, and Owen, but he is capable of surprise: in 2001 he was one of the few Democratic senators to vote to confirm John Ashcroft as attorney general.

But in the 2008 Democratic field, right now he’s the darling of the left and if he wants to run for the presidential nomination he will need to consolidate his base supporters, not alienate them even before the 2008 battle has begun.

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