Glum Democrats Can't See Halting Bush on Courts - New York Times
The New York Times

January 15, 2006

Glum Democrats Can't See Halting Bush on Courts
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 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 would take 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 say that Mr. Bush, in making conservative judicial choices, has
been doing precisely what he said he would do in both of his presidential
campaigns.
Indeed, they say, 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.

Now,, several Democrats said, even at a time when many of his other
initiatives seem in doubt, and though he was forced by conservatives to
withdraw his
first choice for the seat, Mr. Bush appears 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 that Judge Alito is confirmed - the Judiciary Committee vote
is
expected to occur in the next 10 days - 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.

"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,
images of 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, Democrats 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,
and 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," said Dale Bumpers, a former Democratic senator from Arkansas.
"Obviously,
we didn't do a very good job. 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, Democrats said, because Mr.
Bush has never made a secret of what he wanted to do with the judiciary, and
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 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 had
been hampered because many of the issues they needed to deal with - like
theories
of executive power - were arcane and did not lend themselves to building a
public case against Judge Alito.

Mr. Kennedy said that 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 had been 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.

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.

Asked how they might stop the shift, Stephanie Cutter, a senior Democratic
Senate aide, sighed and responded: "Win. Win in 2006."

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.

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