Even before Judge John Roberts faces 18 senators and a sea of cameras, senators are reworking the informal ground rules for the first high-court confirmation hearings in 11 years.
At the heart of the battle: How important a factor in the decision to confirm is a nominee's ideology - and how much does the Senate need to know about it?
Historically, the most toxic charges against any nominee are lack of ability or ethical misconduct - claims that almost derailed the 1991 confirmation of Clarence Thomas. No one expects these to be an issue in the Roberts hearing.
But Senate Democrats say they plan to question Judge Roberts closely on his views on issues ranging from abortion to the commerce clause of the Constitution. In a more controversial move, some signal they may insist on access to private memos that Roberts drafted while serving in the Solicitor General's office. A similar request, refused by the White House in 2002, led to a filibuster of Miguel Estrada, who later withdrew as a nominee for the D.C. Circuit Court of Appeals.
"Ideology has always been part of confirmation fights, but it has generally been kept just under the surface of questioning," says Jonathan Turley, a professor at George Washington University Law School.
In fact, the Constitution sets no legal qualifications to serve on the Supreme Court. While all justices have been lawyers, many of the most respected had little or no experience as a judge before confirmation. In a 1957 essay, Justice Felix Frankfurter fixed the correlation between "prior judicial experience and fitness for the Supreme Court" at zero.
But the nominee's political views have also been in play in past confirmation fights, even if not openly acknowledged. John Rutledge, nominated by George Washington to be Chief Justice in 1795, was the first to be voted down over politics. (Unwisely, he delivered a speech blasting the Senate for ratifying the Jay Treaty just before senators were to take up his confirmation.) Nominee Ebenezer Hoar was voted down in 1869 for urging the president to ignore the views of home state senators in circuit court picks. Others, such as Stanley Matthews in 1881 and Pierce Butler in 1922, were blocked for an alleged probusiness bias.
Of 154 nominations to the Supreme Court between 1789 and 2004, 34 were not confirmed by the Senate, according to the Congressional Research Service.
When Democrats regained control the Senate in 2001, one of the first hearings in the Judiciary Committee was over the need for a more open examination of ideology in confirming judges. Sen. Charles Schumer of New York, who chaired that subcommittee panel, reopened that debate in a policy address to the Center for American Progress last week.
"If a nominee's ideology, judicial philosophy, constitutional views are central considerations in a President's decision to nominate (as they inevitably are) and if such questioning is going on in private, I dare say that the American people have an absolute right to have those questions answered publicly," he said.
In a news conference this week, Senate Judiciary Chairman Arlen Specter (R) of Pennsylvania promised "very, very detailed hearings," including an examination of some 60 opinions that Judge Roberts has written. Questions will range from what the nominee thinks about precedents to his views on judicial activism. But he said it was not appropriate for senators to ask how a nominee will rule in a specific case likely to come before the Supreme Court.
While disunited in the run-up to this nomination, Senate Democrats rallied this week around the need for a full examination of the nominee's personal views. Sen. Patrick Leahy, the ranking Democrat on the Senate Judiciary Committee, says that, if confirmed, Roberts may be expected to serve to the year 2030 or 2040.
"The one thing we're quite unified about is that the nominee has to answer questions and give us the facts about not only his résumé, but about his judicial philosophy and his views," said Senator Schumer in a press briefing.
Yet all recent high court nominees - with the notable exception of Reagan nominee Robert Bork, who lost his confirmation fight - have balked at some of those questions. Judge's Bork's paper trail as a judge and a law professor opened a wide range of questions on ideology that are not as obvious for a nominee like Roberts, with only two years on the federal bench.
That's why demands for the memos that Roberts worked on in the solicitor general's office could emerge as a flashpoint in these hearings. Democrats did not demand these documents when considering Roberts's nomination for the D.C. Circuit of Appeals, although they did require them of Mr. Estrada, nominated for the same court the same day. But a high court nomination raises the bar, Democrats say.
The Bush administration and most others have refused such requests in the past.
"There is a strong reason for the administration to keep that material private, because it wants the candid opinion of its lawyers," says Mark Moller, editor of the Cato Supreme Court Review.
How far to push the request for documents could be a divisive issue for Senate Democrats, especially those who decide early on that the Roberts nomination may be unstoppable. "In the next few days you'll see senators making an initial decision on whether they want to see a fight," says Turley. If some don't want a fight, "then it becomes in their interest not to find anything particularly controversial in the Roberts record that could put a wedge between Democrats and their activist base."