It's official. The long-anticipated Senate battle over the first vacancy on the US Supreme Court in 11 years has been downgraded to a skirmish, as both sides position for the next, more critical court fight.
With three Democrats on the Senate Judiciary Committee voting to confirm John Roberts as chief justice Thursday, the last prospect for a party-line stand to block the nomination on the Senate floor next week expired.
In part, it's a tribute to the nominee, who ground down many of his critics with his grasp of the law and, just as important, his modest, collegial style.
But it's also a careful calculation by each Democratic senator on how best to set up the next vote to replace Sandra Day O'Connor - the key swing vote on the court. And the Roberts vote is providing liberal interest groups with an early test of their clout on an issue with high stakes for the Democratic base.
The vote by the committee's top Democrat, Sen. Patrick Leahy (D) of Vermont, was a disappointing tipping point to such groups.
"I have not reflexively opposed conservative nominees. I have drawn the line only at those nominees who are extreme ... in the mold of activists," said Senator Leahy, the first in his party to announce he would support Judge Roberts.
Senator Leahy's decision, coming after a meeting Wednesday with President Bush, alarmed many liberal activists. Prominent civil rights activists, in a meeting with Democrats earlier in the week, insisted that it was "essential to the base" that Senate Democratic leader Harry Reid and all eight Democrats on the Judiciary panel strongly oppose the nominee.
"We let the Democrats know that this is a very broad coalition of organizations representing their base, and the base is concerned that they pay attention," says Nancy Zirkin, deputy director of the Leadership Conference on Civil Rights. Feminist groups called the Democratic votes deeply disappointing.
"Democrats have been saying for years to their women's rights and civil rights base: 'Vote for us, and we'll save the Supreme Court.' Now, they have stepped back from using that power," says Eleanor Smeal, president of the Feminist Majority Foundation.
But, in fact, the dialogue between Democrats and their key interest groups is harder to parse than such public statements suggest. One factor in the Democratic vote Thursday - and perhaps next week's Senate vote - is the fact that advocacy groups have largely ceased spending money to fight Roberts. The same is true for groups supporting Roberts.
"No major group has spent a dime [on television ads] in the last week," says Bert Brandenburg, executive director of Justice at Stake, a nonpartisan group that has been tracking ad campaigns for and against the Roberts confirmation.
After groups spent more than $2.5 million to shape public views of the court fights since January, the dropoff of the past few weeks is striking. "There's a signaling going on with this spending," adds Mr. Brandenburg. "Democrats who are on the margin might feel more free to support Judge Roberts this time, particularly if they feel they might oppose the next nominee."
Only two groups, NARAL Pro-Choice America and Progress for America, continued to run ads in the week before confirmation hearings.
"Interest groups that planned to run TV advertising may be conserving their resources in anticipation of the next high-court nomination," said Deborah Goldberg, director of the Democracy Program at the Brennan Center for Justice, an affiliate of the New York University School of Law, which cosponsors the ad study with Justice at Stake.
Legal analysts say the split Democratic vote is a bid for individual senators, and the party as a whole, to preserve credibility going into a second court fight. While Judge Roberts is replacing a conservative vote on the Supreme Court, the next vacancy replaces Justice O'Connor.
"I suspect that Leahy and the Democrats' position is strategic: to defuse Republican charges that this is strict partisanship - that interest groups are controlling the show," says Sheldon Goldman, an expert on judicial confirmations at the University of Massachusetts at Amherst.
"Leahy's vote is a show of independence that also makes him more credible to oppose a much more extremist candidate for the O'Connor seat, or someone who cannot present as relatively reasonable a position as Roberts did," he adds.
The other Democrats to vote for Roberts were Sens. Russell Feingold and Herbert Kohl, both of Wisconsin. "I will vote my hopes and not my fears," says Senator Kohl.