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Next week’s Supreme Court confirmation hearings, now upgraded for the chief justice seat, promise to be as theatrical as Congress gets. But the telegenic John Roberts Jr. will, in some respects, be a supporting actor, sharing the stage with 18 senators who view the hearings as their own star vehicle. More than simply trying to pin down the elusive Roberts on his jurisprudence, the Senate Judiciary Committee’s 10 Republicans and eight Democrats will be putting their own ambitions and agendas on display. Rival Democrats will be trying to electrify their party base by showing who can be the toughest on the nominee, while Republicans will be seeking to burnish their own national credentials, competing to place Roberts’ more controversial statements in the most benign light. It is a committee of extremes � both liberal and conservative � and, even by Senate standards, of powerful egos. Six members have either run for president or are contemplating a bid (or in Delaware Democrat Joseph Biden Jr.’s case, another bid) in the 2008 election. And there’s another dynamic at play: A Supreme Court confirmation gives Congress a rare chance to tell the Court what it thinks about its co-equal branch. While the Judiciary Committee already gets plenty of attention � it deals with the most explosive topics facing the country, from gun control to flag burning to abortion � the Roberts hearings will provide a chance for members to enhance or sink their own political futures.Just ask Judiciary Committee Chairman Arlen Specter (R-Pa.), another former presidential candidate. His opposition to Judge Robert Bork nearly cost him his Senate seat, while his aggressive cross-examination of Anita Hill during the Clarence Thomas hearings both failed to assuage hard-line conservatives and drew the wrath of liberal supporters. “Think of all the legislation Congress does; most of it will be forgotten,” says Melissa Patack, a former counsel to Judiciary Committee member Sen. Charles Grassley (R-Iowa), who worked on four Supreme Court nominations. “This will not be forgotten. This will make it into the history books.” JOCKEYING FOR POSITION Specter, who is a stickler for order and has no problem cutting off the most senior committee members if they speak too long, is expected to run the Roberts hearings with characteristic rigor. That means members will make statements and use their allotted question time in strict order of committee seniority, alternating between Republican and Democrat. That in itself has strategic implications, because each side will have very different objectives. For Democrats, the goal is to put Roberts on the spot, to probe his few contentious writings and pin down his legal philosophy as precisely as possible. Republicans will then do what they delicately refer to as “rehabilitation,” holding up those same statements and explaining how the Democrats have willfully misread them. “The challenge,” says one senior Republican committee aide, is that “we don’t know what documents they will wave around or what statements they will take out of context.” For example, Sen. Jon Kyl (Ariz.), considered one of the brightest of the 10 GOP members, is set to follow Biden, a former Judiciary chairman, who, despite a tendency for drama, generally asks difficult, well-considered questions. But Biden, like fellow committee Democrat Russell Feingold of Wisconsin and Republican Sam Brownback of Kansas, has presidential ambitions. That, say committee staffers, might make each senator play to his respective constituencies even more than usual. “What do Feingold and Biden have to gain by voting for Roberts?” asks one Democratic Judiciary counsel. Biden, for example, may be carrying a grudge. He sponsored the Violence Against Women Act of 1994 (VAWA), which the high court struck down in part in 2000, saying Congress had failed to establish a link between violence toward women and regulating interstate commerce. In recent years the Court has shown hostility to broad prohibitions laid down by the legislative branch. “The Court has slapped down Congress on more than one occasion � on VAWA, on the CDA, on guns in the schoolyard,” says former Democratic Judiciary counsel Beryl Howell, referring to the Communications Decency Act and a 1990 law forbidding students from carrying guns in a school zone. Like VAWA, the Court struck down those laws on the grounds that Congress had exceeded its constitutional authority. “The Court has slapped Congress and treated them worse than an administrative agency,” adds Howell, now the general counsel at Stroz Friedberg in Washington. Biden may demand to know how Roberts views congressional power. And if Biden doesn’t like the answer, it may be up to Kyl to smooth it over, to say, in effect, that Biden’s question is out of line � something Roberts won’t be able to say directly. For Kyl and two other Republicans, Sens. Mike DeWine (Ohio) and Orrin Hatch (Utah), who ran for president in 2000, the hearings have special significance: The three are up for re-election in 2006. Three committee Democrats are also up next year: Sens. Herbert Kohl (Wis.), Dianne Feinstein (Calif.), and Edward Kennedy (Mass.), whose presidential bid was in 1980 and who will be running for his eighth term. PLAYING DEFENSE Republicans, of course, have made educated guesses about the subjects Democratic members are likely to broach and are preparing their responses accordingly. Kennedy, for example, is viewed as most likely to toe the tough line of liberal special interest groups like the Alliance for Justice and People For the American Way. He will talk about civil rights, voting rights, and affirmative action, while Biden will focus on privacy and women’s issues. Ranking member Patrick Leahy of Vermont, often overshadowed by Biden and Kennedy, will raise the issue of Roberts documents missing from the Reagan archives. Kohl, the antitrust subcommittee’s ranking Democrat, will most likely bring up business-related queries. Feinstein, the only woman on the committee, is sure to talk about abortion. Like other Democrats, she’s in a bit of a political bind. Roberts was confirmed to the U.S. Court of Appeals for the District of Columbia in 2003 by unanimous consent. If she votes “no,” she will be accused of flip-flopping; if she votes “yes,” she risks alienating her base. Feingold is among the most unpredictable of committee Democrats: the only senator of either party to vote against the USA Patriot Act and the only Judiciary Committee Democrat to vote to confirm former Attorney General John Ashcroft. Like Biden, Kennedy, and New York’s Charles Schumer, who follows Feingold in committee seniority, he can be a tenacious questioner, especially when it comes to his favorite subjects, such as the death penalty and campaign finance reform. Of course, says one former Democratic committee counsel, members will have to remain flexible. “You wouldn’t expect Feingold to focus on choice, but he follows Feinstein, and if something’s left hanging, he’ll try to clean it up.” Schumer, so far the most outspoken Democratic critic of the Roberts nomination � and the Democrat conservative Republicans most love to hate � has released a long laundry list of questions he might ask. “All the fireworks will be about how much Chuck Schumer makes this about Chuck Schumer,” insists one Republican leadership aide working on the hearing. Illinois’ Richard Durbin, who despite being assistant Senate minority leader is the committee’s most junior Democratic member, will likely focus on any subjects that are left. “He’s at the bottom of the ladder, so he’ll get the crumbs,” notes a Democratic aide. So important is the order of questioning that Republicans are quick to note that, given their 10-8 numerical advantage, the GOP will have three members in a row ask questions: Brownback; Tom Coburn (Okla.), the committee’s most junior Republican; and then back to Specter, before Democrats get another shot at Roberts in round 2, which Specter has said will last only 20 minutes per person. Specter, who will almost certainly vote for Roberts, could nonetheless deliver some of the week’s toughest attacks on the 50-year-old judge. Last month he sent Roberts an angry letter denouncing the Court’s ruling in U.S. v. Morrison, which declared that Congress could not create a federal civil remedy for gender-related crimes. “Members of Congress are irate about the Court’s denigrating and, really, disrespectful statements about Congress’ competence,” Specter wrote, referring to the Court’s rejection of Congress’ “method of reasoning.” In that vein, he is likely to mirror some of Biden’s objections, though without Biden’s flamboyance. The committee’s second-ranking Republican and its former chairman, Hatch, on the other hand, is Specter’s polar opposite. Where Specter’s questions are likely to dig in, Hatch is better known for his brand of rehabilitative questioning on the order of, “�Isn’t it true, sir, that you’re a really good guy?’” mocks the Democratic counsel. It’s true that while Democrats will have the luxury of remaining on the offensive, and Republicans will largely be forced to play defense, the 10-member GOP team is hardly monolithic. Hatch will be followed by Grassley, a longtime committee member; he and Coburn are the panel’s only non-lawyers. Grassley, a blunt-speaking farmer; DeWine; and South Carolina’s Lindsey Graham are probably the panel’s most independent-minded Republicans. It is the committee’s three most junior members � Coburn, Brownback, and, especially, former Texas Supreme Court Justice John Cornyn � who are most likely to do the White House’s bidding. Indeed, while Democrats would love to pin down Roberts on his views on Roe v. Wade, it is possible that the job may be done for them by a conservative Republican such as Brownback, something that would be anathema to most committee Republicans. “Brownback and [Virginia Sen. George] Allen are the only two Republicans competing for the outer limits of the conservative party,” notes a Judiciary Committee counsel for a Republican member. “So of course Brownback would love to pin him down on Roe v. Wade. That way, if he turns out to be another [David] Souter, Brownback can say he tried.” But, he adds, “we’re working hard on Roberts not to answer.” Brownback’s office declined to comment. The senior leadership staffer, however, denies any split in the ranks. “We’ve had meeting after meeting on this and we’re all very much up the middle,” he says. “I’m expecting a relatively dull experience.”
T.R. Goldman can be contacted at [email protected].

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