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Roberts' confirmation likely

Both supporters, critics says he is on track for a Supreme Court seat

John Roberts
John Roberts

WASHINGTON — John Roberts is on track for a seat on the Supreme Court barring a misstep at hearings beginning Tuesday, according to supporters and critics who say the coming confirmation debate will test Senate Democrats as well as the nominee.

Relatively few Republicans and no Democrats have formally announced how they will vote on the nomination of the 50-year-old appeals court judge, saying they first want to follow the hearings.

Behind the studied show of neutrality, though, several Republicans who are tracking Roberts' nomination say he already has the likely support of all but two or three of 55 GOP senators and perhaps a few Democrats — enough to assure confirmation unless liberals launch a filibuster.

Sen. Arlen Specter, R-Pa., has pledged to preside over "efficient, dignified" hearings as chairman of a Judiciary Committee known for outbursts of unruly partisanship. At the same time, the Pennsylvania Republican said senators and the country "need to know much more" about Roberts' judicial philosophy.

President Bush named Roberts in July as the court's first new justice in 11 years. If confirmed, he would succeed Sandra Day O'Connor, who has often cast a deciding vote on abortion, affirmative action and other issues.

Conservatives, eager to have the court take a new direction, swiftly embraced Roberts when Bush appointed him.

Given the political backdrop, Democrats, as well as the liberal groups that have already announced their opposition to the nomination, hope to use the hearings to flesh out Roberts' judicial philosophy and views.

The Democratic objective "is to figure out what kind of justice John Roberts will be," Sen. Charles Schumer, D-N.Y., said in a recent interview. "Will he be an ideologue who imposes his views on everyone through the courts or will he be a mainstream justice, albeit a conservative one?"

Already, some Democrats have signaled the areas they intend to explore.

Sen. Dianne Feinstein, D-Calif., and the only woman on the committee, has said she feels a "special role and a special obligation" to explore his views on the landmark 1973 case that established the right to an abortion.

Sen. Patrick Leahy of Vermont, who will lead the Democratic questioning, informed Roberts that he will ask about a Justice Department memo that critics say led to torture of prisoners held by Americans overseas. "It will be raised, partly on the question of to what area — if any — can a president be considered above the law," Leahy said.

Sen. Edward M. Kennedy, D-Mass., likely will ask about civil rights. "This isn't about 2006 or 2008," he said recently. "This is about the direction of the country for the next 30 years and what protections will be afforded."

Among Republicans, Specter intends to ask about recent Supreme Court rulings invalidating laws passed by Congress. "I am concerned about the Supreme Court's judicial activism which has usurped congressional authority," he wrote to the nominee.

There is a strong likelihood for partisan skirmishing.

The White House, which consented to the release of material from Roberts' time in the Reagan administration, has refused repeated Democratic demands for documents from his work as principal deputy solicitor general under President George H.W. Bush.

Additionally, the two sides have been maneuvering for position on another topic.

Democrats may press and probe. But at a confirmation hearing more than a decade ago, Justice Ruth Bader Ginsburg "told the committee in no uncertain terms that she would offer 'no hints, no forecast, no previews' about the way she would rule on any case that might come before the high court," several former Republican attorneys general recently wrote.

It will be Specter's task to set limits.

The Republicans who described support for Roberts do so on condition of anonymity, saying they were not authorized to speak about vote counts. If either Democrats or their customary allies disagree with that assessment, they have not said so, and their own actions lend them credence.

When NARAL-Pro Choice America, which supports abortion rights, aired a commercial earlier this summer critical of Roberts — an ad it withdrew after charges that is was misleading and unfair — the group selected two states for special attention. The two, Maine and Rhode Island, are home to three Republican senators.

Beyond Roberts' confirmation fate are internal political considerations for Democrats.

"How the Democrats handle themselves will have an impact on how they're remembered by their constituents," said Nan Aron, head of the Alliance For Justice. "I think certainly constituents remembered how some of their senators voted on the Clarence Thomas confirmation and punished some of them for their votes."

As an example, Aron cited former Sen. Alan Dixon of Illinois, who lost a Democratic primary when he sought a second term after voting to confirm a man most liberal groups opposed.

With many civil rights and women's groups opposed to Roberts, Aron said it will "be very difficult for any Democrat with presidential aspirations to vote for John Roberts given his record against civil and women's rights, against the right to privacy."

On the committee, Democratic Sens. Russell Feingold of Wisconsin and Joseph Biden of Delaware are potential White House contenders in 2008.

So, too, are at least three Democrats not on the panel, Sens. Evan Bayh of Indiana, Hillary Rodham Clinton of New York and John Kerry of Massachusetts, the party's 2004 nominee.

Officials in both parties, speaking on condition of anonymity, say they expect a party-line vote in committee, 10 Republicans as well as eight Democrats from reliably Democratic states.

In the Senate as a whole, several Democrats are from so-called red states — those that Bush carried and trend Republican. They give Roberts a pool of potential supporters.

A recent AP-Ipsos poll showed 34 percent of those surveyed had a favorable opinion of Roberts and 52 percent thought he should be confirmed. Only 16 percent had an unfavorable opinion, and 24 percent said he should not be approved.

The first day of hearings will be a scripted ritual, with opening statements from each senator, followed by Roberts.

Roberts has informed associates that he does not want to read a statement that was prepared in advance, according to one Republican familiar with preparations. Instead, he hopes to respond to the comments of committee members.