Democrats struggle to find chinks in Roberts's armor

This week's flare-up between left-wing activist groups and Democratic elected officials over Supreme Court nominee John Roberts reflects a longstanding tension that has been growing ever since the 2004 elections.

Since Judge Roberts's nomination July 19, most Senate Democrats have taken a fairly measured approach in public statements about the man - promising aggressive questions when confirmation hearings begin Sept. 6 and pushing for the release of documents The White House is withholding, but avoiding tough rhetoric on Roberts's judicial philosophy.

When the Washington Post ran a front-page article early this week concluding that, barring an unforeseen revelation on Roberts, the Democrats were not planning a major fight to block confirmation, liberal activist groups struck back. The essence of their message: "This must not be a coronation." They cite what they see as an emerging picture of Roberts - from documents that have been released recently from his days in the Reagan White House and Justice Department - as one who holds positions far to the right of the justice he would replace, Sandra Day O'Connor.

Key Senate Democrats reacted in a New York minute, coming out with their toughest statements to date on Roberts. Patrick Leahy, the ranking Democrat on the Senate Judiciary Committee, called Roberts's views in those documents "among the most radical being offered by a cadre intent on reversing decades of policies on civil rights, voting rights, women's rights, privacy, and access to justice."

But the bottom line hasn't changed: Based on what is known today - sterling résumé, highest rating from the American Bar Association, likable personality, and apparently not even an unpaid parking ticket to his name - Roberts appears to be a shoo-in for confirmation. That's just not something most elected Democrats dare say out loud.

And indeed, analysts say, it's too soon to project a final vote count in the Senate. But for the Democratic Party, the hard truth is that it controls no branches of government, and in order to win seats in the 2006 midterm elections and then have a shot at the presidency in 2008, the party must keep its activists energized. Thus, the dance elected Democrats are doing with their most loyal foot soldiers.

"There's a strange minuet going on," says Ross Baker, an expert on the Senate at Rutgers University. "In some ways, even the activists feel they could do a lot worse than Roberts, but they can't say it. They have to put up some kind of fight."

Indeed, when it came out recently that Roberts had once done pro bono legal work for a gay-rights group, that caused all interested parties to pause - both conservative and liberal. That news nugget seemed to underscore Roberts's identity as a professional appellate lawyer, not an ideologue.

But in the Kabuki theater that often characterizes the Washington political scene, the various players have reverted to their expected roles. For the Democratic coalition, that involves maintaining as much of the activist energy level from the 2004 elections as possible, particularly for fundraising, party-building, and get-out-the vote activities.

For the liberal activist groups, who have been spoiling for a big Supreme Court confirmation battle for years, this is it - a chance to influence the outcome on this most weighty of presidential nominations, a lifetime appointment to the highest court. Their own fundraising and constituency-building depend heavily on an impressive showing.

But the Democratic caucus in Congress faces somewhat different imperatives. As the minority party, elected Democrats have limited options - particularly, with Roberts, in the face of such a smooth nominee. Some Senate Democrats from Republican states know their safe vote on Roberts is yes. For the caucus as a whole, the Roberts nomination is just one of an array of issues to contend with; decisions to go to the mat and fight the White House and majority Republicans in Congress are not taken easily or often.

Senate Democrats also know that another Supreme Court vacancy or two are likely before Bush leaves office, and that the president could nominate someone a lot less palatable than Roberts. And so, analysts say, that's another reason not to go to the mat on on this first vacancy. An important element of Roberts's confirmation hearings will be to watch for the markers put in place for next time.

"The groups want certain questions asked of Roberts to lay a predicate for future nominees," says Marshall Wittmann, a senior fellow at the Democratic Leadership Council. "Unless there's a revelation we can't fathom, this will be the meat of the hearings."

The larger political context of a weakening president - including the scene outside his Crawford, Tex., ranch with anti-war protester Cindy Sheehan - may also have emboldened the Democrats to ratchet up their rhetoric on Roberts. "This is paralleling the whole Cindy Sheehan phenomenon and decline in the president's poll numbers," notes Trevor Parry-Giles, an analyst on Supreme Court confirmations at the University of Maryland, College Park. "The president is taking heat for his long vacation, and the left sees an opportunity."