After four days in front of the Senate Judiciary Committee, John Roberts appears headed for confirmation as the 17th chief justice of the United States, even as Democrats and outside groups gear up for the next, even more critical, fight.
Steady and nuanced - with flashes of dry wit - Judge Roberts held a consistent line through more than 20 hours of questioning: He supports the rule of law. He will decide issues in light of the court's precedents and facts of the case, with an open mind. He refused to comment on issues likely to come before the court - and even on some that won't, such as the 2000 case Bush v. Gore.
Democrats now must decide whether or not to oppose the nomination, knowing they face a second confirmation battle, possibly as soon as Roberts's nomination is settled, legal analysts say.
Democrats must watch that "they aren't perceived as obstructionist or too overbearing," says Carl Tobias, a law professor at the University of Richmond in Virginia. "If they believe Roberts is similar to [Chief Justice William] Rehnquist, and essentially replaces Rehnquist, they may well be keeping their powder dry for the next seat" - the crucial swing seat on the court.
In 1986, Democrats and liberal activists launched an intensive campaign to block the nomination of Rehnquist, then an associate justice, to become chief justice. The attempt failed 65-to-33 in the GOP-controlled Senate, and Rehnquist moved to the center seat on the high court. But the anti-Rehnquist drive left critics inside and outside the Senate too spent to mount a vigorous campaign against the next nominee, Antonin Scalia, who is even more conservative than Rehnquist. The vote for Justice Scalia was unanimous.
"After the vote [on Rehnquist], the Senate didn't have the appetite for another big fight," says activist Nan Aron, president of Alliance for Justice. "There's a huge temptation to be on to the next nomination, but a vote for Roberts is voting your fears that the next one is going to be worse."
By the end of the second day of questioning, with no smoking guns or "gotcha" moments in sight, the swarm of activists on both sides of these hearings began quietly talking about the next nomination.
"Many of the questions Democrats asked by the second day [of the hearings] were signals for the next candidate," says Julian Zelizer, a congressional historian at Boston University. "By Wednesday afternoon, the Democrats and [interest] groups were beginning to refocus, to save energy. You can't always appear in the public eye as just an aggressor."
While legal analysts are still parsing his comments, Roberts revealed some new information during the hearings:
• He says he now believes the 14th Amendment contains a substantive privacy right, an issue tied to the abortion debate.
• He says he now disagrees with the approach taken by the Reagan administration in a 1980s civil rights case involving Bob Jones University.
• He is troubled by the citation of foreign law as a precedent in the interpretation of American statutes and the US Constitution.
• He says he is no longer certain that the US Constitution permits Congress to strip the federal courts of jurisdiction in controversial areas.
Such concessions offer no practical insight into how Roberts may rule in the future on abortion, civil rights, and his analysis of the text of the Constitution, legal analysts say.
"Many of us are struggling with what kind of a justice you would be, John Roberts," said Sen. Dianne Feinstein of California, in the closing hour of questioning Thursday. Senator Feinstein is one of five Democrats on the panel who voted for Roberts's confirmation to the Fourth Circuit Court of Appeals in 2003.
A wild card in a final Senate vote is whether Democrats will filibuster the nomination. A May 23 agreement by a bipartisan group of 14 senators takes that option off the table, except in the case of "extraordinary circumstances." Two of the Democrats on the so-called Gang of 14 urged the White House this week to release documents covering Roberts's years in the first Bush administration. But neither senator is saying that a White House refusal would likely be enough to break the agreement.
"If this were a fight, they'd have called it," says Sen. Lindsey Graham (R) of South Carolina, challenging Democrats to explain why they'd vote against Roberts in light of the fact that Republicans voted overwhelmingly for Clinton nominee Ruth Bader Ginsburg, one of the most liberal justices on the high court.
The Senate Judiciary Committee is expected to vote on Roberts's nomination Sept. 22, and a floor vote would follow Sept. 26. The White House and Senate Republicans say they want the vote wrapped up by Oct. 3, when the Supreme Court reconvenes.