January 15, 2006 DEMOCRATS SEE WIDE BUSH STAMP ON COURT SYSTEM
By ADAM NAGOURNEY, RICHARD W. STEVENSON and NEIL A. LEWIS
This article was reported by Adam Nagourney, Richard W. Stevenson and Neil A. Lewis and written by Mr. Nagourney.
WASHINGTON, Jan. 14 - Disheartened by the administration's success with the Supreme Court nomination of Judge Samuel A. Alito Jr., Democratic leaders say that President Bush is putting an enduring conservative ideological imprint on the nation's judiciary, and that they see little hope of holding off the tide without winning back control of the Senate or the White House.
In interviews, Democrats said that the lesson of the Alito hearings was that this White House could put on the bench almost any qualified candidate, even one whom Democrats consider to be ideologically out of step with the country.
That conclusion amounts to a repudiation of a central part of a strategy Senate Democrats settled on years ago in a private retreat where they discussed how to fight a Bush White House effort to recast the judiciary: to argue against otherwise qualified candidates by saying they were taking the courts too far to the right.
Even though Democrats thought from the beginning that they had little hope of defeating the nomination, they were dismayed that a nominee with such clear conservative views - in particular a written record of opposition to abortion rights - appeared to be stirring little opposition.
Republicans said that Mr. Bush, in making conservative judicial choices, was doing precisely what he said he would do in both of his presidential campaigns, and indeed that his re-election, and the election of a Republican Congress, meant that the choices reflected the views of much of the American public.
Republicans rejected Democratic assertions that Judge Alito was out of the mainstream. "The American people see Judge Alito and say, that's exactly the sort of person we want to see on the Supreme Court," said Steve Schmidt, the White House official who managed the nomination.
As a result, several Democrats said, Mr. Bush - even at a time when many of his other initiatives seem in doubt and when he had been forced by conservatives to withdraw his first choice for the seat - appeared on the verge of achieving what he had set as a primary goal of his presidency: a fundamental reshaping of the federal judiciary along more conservative lines. Mr. Bush has now appointed one-quarter of the federal appeals court judges, and, assuming Judge Alito is confirmed, will have put two self-described conservatives on a Supreme Court that has only two members appointed by a Democratic president.
"They have made a lot of progress," said Ronald A. Klain, a former Democratic chief counsel for the Judiciary Committee and the White House counsel in charge of judicial nominations for President Bill Clinton. "I hate to say they're done because Lord only knows what's next. They have achieved a large part of their objective."
Asked if he had any hope that Democrats could slow President Bush's effort to push the court to the right, Mr. Klain responded: "No. The only thing that will fix this is a Democratic president and more vacancies. It takes a long time to make these kinds of changes and it's going to take a long time to undo them."
Senator Charles E. Schumer, a New York Democrat and a member of the Judiciary Committee, said it was now hard to imagine a legislative strategy that could slow Mr. Bush's judicial campaign, assuming vacancies continue to emerge, at least through the end of this year.
"To stop a president on judicial nominations, you either need a Democratic president, a Democratic Senate or moderate Republicans who will break ranks when it's a conservative nominee," Mr. Schumer said. "We don't have any of those three. The only tool we have is the filibuster, which is a very difficult tool to use, and with only 45 Democrats, it's harder than it was last term."
Few Democrats or analysts said they thought that Judge Alito's nomination could ever be blocked, noting that as a rule presidents tend to get their Supreme Court nominees approved by the Senate. "It may be a mistake to think that their failure demonstrates that they necessarily did something wrong," said Richard H. Fallon, a professor of constitutional law at Harvard Law School. Referring to one of the major Democratic complaints about Judge Alito's testimony, Mr. Fallon said: "As long as most of the public will settle for evasive or uninformative answers, maybe there was nothing that they could have done to get Alito to make a major error."
Nonetheless, there have been some recriminations in the party since the hearings ended about how Democrats responded to a nominee who once seemed an easier target than Chief Justice John G. Roberts Jr., because of his long record of written opinions and briefs.
Several Democrats expressed frustration over what they saw as the Republicans outmaneuvering them by drawing attention to an episode Wednesday when Judge Alito's wife, Martha-Ann, began crying as her husband was being questioned. That evening, senior Democratic senate aides convened at the Dirksen Senate Office Building, stunned at the realization that the pictures of a weeping Mrs. Alito were being broadcast across the nation - as opposed to, for example, Senator Edward M. Kennedy, Democrat of Massachusetts, pressing Judge Alito about his membership in an alumni club that resisted affirmative action efforts.
"Had she not cried, we would have won that day," said one Senate strategist involved in the hearings, who did not want to be quoted by name discussing the Democrats' problems. "It got front-page attention. It was on every local news show."
Beyond that, they said Judge Alito had turned out to be a more skillful witness than they had expected. They said Democrats on the Judiciary Committee had been outflanked in their efforts to pin down Judge Alito on any issues, that some of the questioners - notably Senator Joseph R. Biden Jr., Democrat of Delaware - devoted more time to talking than to pressing the nominee for answers.
"You're trying to convince the American people that this man is not on your side. Obviously, we didn't do a very good job," said Dale Bumpers, a former Democratic senator from Arkansas. "Or I'd put it this way: Alito and Roberts did a good enough job that the Democrats couldn't make that case."
Tom Daschle, the former Democratic senator from South Dakota, said: "It is causing far more serious consideration by at least the Democrats on the Judiciary Committee of what you do in future cases. How do you make clear where this person stands? Alito was pretty successful at getting through this maze."
The developments were particularly frustrating, they said, because Mr. Bush has never made a secret of what he wanted to do with the judiciary. Democrats had devoted much energy to trying to stop it.
The Democratic push began in earnest on the last weekend of April 2001, when 42 of the 50 Democratic senators attended a retreat in Farmington, Pa., to hear from experts and discuss ways they could fight a Bush effort to remake the judiciary.
"There were very few principles on which we could all agree," said Mr. Daschle, who was Senate minority leader at the time of the meeting. "But one was that we anticipated that the administration would test the envelope. They were going to go as far as the envelope would allow in appointing conservative judges."
At the 2001 retreat, Democrats listened to a panel composed of Laurence H. Tribe of Harvard Law School, Cass R. Sunstein of the University of Chicago Law School and Marcia D. Greenberger, the co-president of the National Women's Law Center. The panelists told them that the court was at a historic juncture and that the Bush White House was prepared to fill the courts with conservatives who deserved particularly strong scrutiny, participants said.
The panel also advised them, participants said, that Democratic senators could oppose even nominees with strong credentials on the grounds that the White House was trying to push the courts in a conservative direction, a strategy that now seems to have failed the party.
Mr. Tribe said Friday that Democrats were increasingly discouraged in their efforts to mount opposition campaigns. "When it comes down to it, the numbers of Democrats means that it begins to feel to some like tilting at windmills," he said.
Members of the committee, while defending their performance, said they were hampered because many of the issues they needed to deal with - such as theories of executive power - were arcane and did not lend themselves to building a public case against Judge Alito.
Mr. Kennedy said the nomination process, and particularly the hearings, had "turned into a political campaign," and that the White House had proved increasingly skilled in turning that to its advantage.
"These issues are so sophisticated - half the Senate didn't know what the unitary presidency was, let alone the people of Boston," he said, referring to one of the legal theories that was a focus of the hearings. "I'm sure we could have done better."
"But what has happened is that this has turned into a political campaign," he said. "The whole process has become so politicized that I think the American people walk away more confused about the way these people stand."
Democratic aides said there was even less strategy than usual in trying to coordinate the questioning by the eight Democratic senators. The situation was complicated because senators and staff were out of Washington before the hearing on a break.
But while there was some self-criticism among Democrats, the main concern coming out of the hearings was that the nation had reached a turning point in the ideological composition of its judicial system.
By the end of last year, about 60 percent of the 165 judges on the federal appeals courts were appointed by Republican presidents, with 40 percent from Democratic presidents. Of the 13 circuit courts of appeal, 9 have majorities of judges named by Republicans presidents.
The extent to which Republicans are intent on remaking the judiciary was demonstrated by one of President Bush's greatest setbacks, when he was forced to abandon the Supreme Court nomination of Harriet E. Miers, in no small part because conservatives were distrustful of her position on abortion rights.
Indeed, many Democrats said that what took place with both the Roberts and Alito nominations simply underlined what Senator John Kerry, the Massachusetts Democratic who ran for president in 2004, said would happen to the court if Mr. Bush was returned to the White House.
"George Bush won the election," said Representative Rahm Emanuel, an Illinois Democrat. "If you don't like it, you better win elections."
Neil A. Lewis contributed reporting for this article.