By J. Taylor Rushing - 07/23/10 10:00 AM EDT
Senate Democrats are expressing regret for supporting the nominations of Supreme Court Chief Justice John Roberts and Associate Justice Samuel Alito.
The Democrats’ criticism of Roberts and Alito comes as some centrist Republicans mull whether to break with their party and support Elena Kagan, President Obama’s nominee to the high court.
From the rank and file to senior members, Democrats widely said they were particularly frustrated that Roberts, during his confirmation hearings, portrayed himself as an umpire merely calling balls and strikes. Instead, they say, he has joined the far-right wing of the court and been a leading voice in recent controversial 5-4 rulings.
“The representations that were made and implied turned out not to be accurate,” Sen. Byron Dorgan (D-N.D.) said of Roberts. “Many of us met with him personally and tried to take his measure, and I remember worrying, ‘Is this someone who’s going to go to the far-right corner with [Antonin] Scalia and [Clarence Thomas]? Most of us were assured that wouldn’t happen. Turns out that’s exactly what happened.”
“He was one thing when he was trying to get confirmed, and he became another thing which he seemed to have planned all along,” said Sen. Jay Rockefeller (D-W.Va.), who, like Dorgan, backed Roberts.
“He is what you see. Does that reflect what he said at the hearings? No,” said Sen. Patrick Leahy (D-Vt.), who now chairs the committee and was the ranking minority member during Roberts’s confirmation vote. “I do not regret wanting to have the chief justice of the United States not be confirmed on a party-line vote. But I do wish his votes were more consistent with what he told us.”
A Senate floor vote on Kagan’s nomination, meanwhile, is expected by early August.
Kagan’s nomination was approved by Judiciary Committee members this week on a 13-6 vote, with GOP Sen. Lindsey Graham (S.C.) the only Republican on the committee to vote for her, a year after he voted for Justice Sonia Sotomayor. Sen. Richard Lugar (R-Ind.) said this week he will also back Kagan.
Sotomayor received nine Republican votes last August, but Kagan is expected to attract less GOP support.
Roberts was confirmed by a 78-22 Senate vote on Sept. 29, 2005. Alito was confirmed by the Senate on a 58-42 vote on Jan. 31, 2006.
The Democrats who backed both Roberts and Alito were Sens. Robert Byrd (W.Va.), Kent Conrad (N.D.), Tim Johnson (S.D.) and Ben Nelson (Neb.).
At least one Democrat who voted for both of President George W. Bush’s nominees indicated he would do things differently if he knew then what he knows now.
“I feel I was misled by some of the previous candidates for the court,” Conrad said. “I asked very straight questions, and I got what appeared to be very straight answers, which have not proven to be the case.”
Some of the regrets have been caused by two recent 5-4 decisions with which Democrats have disagreed. Most notably, the Roberts court voted 5-4 in June 2008 to strike down the District of Columbia’s handgun ban, a decision that broadened gun rights and was a severe blow to gun-control efforts. Roberts, Alito, Scalia, Thomas and Anthony Kennedy signed the majority ruling.
The Washington Post reported a few years ago that Obama initially wanted to vote for Roberts, but was talked out of it by his staff. Obama, reportedly impressed by Roberts’s intellect, was advised a yes vote would cripple a future presidential run. Obama subsequently voted no.
One Democrat who supported Roberts, Sen. Mark Pryor of Arkansas, said he remembered privately urging Roberts to do what he could to reduce the number of 5-4 cases by the court.
“I actually talked to him about the fact that I was hoping there wouldn’t be as many 5-4 decisions, because it really has a way of dividing America,” Pryor said. “He said he’d work on that, but I guess it just hasn’t worked out.”
Some Democrats who voted for Roberts had different views.
“I’ve been disappointed he hasn’t been more balanced, but I always think you have to look at the totality of someone’s career instead of making a decision based on a few years,” Sen. Chris Dodd (Conn.) said.
“I’ve been torn about it, but I can’t say I regret it,” said Sen. Carl Levin (Mich.). “I haven’t seen the independence from him that I expected. I had expected he wouldn’t be an automatic [vote], and he seems to have become one.”
The Supreme Court did not comment for this article.