The John Roberts Sideshow

Hillary walks tightrope! Schumer frolics in spotlight!

For once, Chuck Schumer is having all the fun. George Bush has finally made a Supreme Court nomination, and his pick, the supposedly pragmatic conservative John Roberts, is looking more ideological by the day.

Enter Schumer, popular Democrat, ultra-blue New York's "senator for life," his party's key inquisitor and pit bull on Bush's picks for the bench. An infamous media hound, Schumer has found himself king of the news cycle these days, hosting almost daily press conferences, issuing almost daily statements, making almost daily headlines. A member of the Senate Judiciary Committee, Schumer has sent a list of 82 questions to Roberts, and when the hearings start in September, he can expect to make hay out of the answers.

And then there is Schumer's counterpart, Hillary Clinton, junior senator, Democratic supernova, gearing up for re-election next year, all while lurching to the center and laying the groundwork for a presidential run in 2008. For her, the Roberts nomination makes for some tricky calculations: Should she try to back him, for the chance to look like a centrist, and thus appeal to elusive swing voters across the heartland? Or should she do what her New York constituents want? And what do you say or not say about a jurist expected to help steer the court to the right, but whose enigmatic record makes him tough to peg as extremist? No Democratic senator wants to support a Supreme Court justice who turns out to be the deciding vote against abortion rights, civil rights, gay rights, and a host of progressive issues.

While the usually up-front Clinton tries to say as little as possible—she's not on the judiciary committee, her friends will remind you—Schumer hasn't got a worry in the world. As one Democratic operative with ties to both senators puts it, "Chuck has no future political interests, so he can do what he wants and not sweat it."

Schumer has already said what it'll take for Roberts to win his vote.

"Fundamentally," Schumer told reporters on July 27, "he must persuasively demonstrate that he is not an ideologue. He must show that he doesn't want to impose his personal views on the rest of America, and that he'll be faithful to the Constitution and the law rather than to some political or ideological agenda."

Clinton, meanwhile, has been almost silent. On July 19, she issued a statement saying she'll wait for the hearings before jumping to conclusions. "I look forward to the committee's findings," she said, "so that I can make an informed decision about whether Judge Roberts is truly a guardian of the rule of law who puts fairness and justice before ideology."

Since then, she has stuck to the script, so much so that she can come across as rehearsed. Take her performance at a July 28 press conference on Capitol Hill, which she attended along with five female Democratic senators. The women held the event to kick off a new website allowing voters to submit questions to Roberts. Most of the senators took the opportunity to discuss their views on the judge as well. They insisted that he explain where he stands on the constitutional right to privacy, the legal underpinning of court decisions over abortion and gay rights. Some, such as Barbara Boxer of California, had no qualms admitting that his position on Roe v. Wade would make or break her vote.

When Clinton took the microphone, she sounded off on the virtues of . . . technology. "This is an extraordinarily innovative way of creating an opportunity for people around the country to be part of this process," she offered. "Thanks to the miracle of modern communication, we have an opportunity to include people and give them a chance to participate."

Asked what Roberts had to do to win her vote, she kept up her guard. "I am waiting to see the process unfold," she said.


In many ways, Clinton is playing the Roberts nomination just right. Unlike her senior colleague, she has never staked out territory as the party's big dog on court nominees. "They have different jobs," says former governor Mario Cuomo. Clinton must let Schumer do his: preparing questions, gathering documents, advancing the process. "The Senate has strict protocols, and they're abiding by them."

Besides, as the political analysts like to point out, Clinton doesn't gain much by speaking out on Roberts now. Tactically, she wants to appear thoughtful, senatorial, the antithesis of a liberal fanatic. "If she comes out swinging against Roberts," as Democratic consultant Hank Sheinkopf says, "she only gives the right more opportunity to bang her around."

Schumer, wisely, wants to play to the party's base—indeed, as head of the Democratic Senatorial Campaign Committee, he's busy raising money to bring Democrats back to power. "He benefits from getting liberals stirred," says Michael Edelman, a Republican analyst. And whenever he carries the liberal torch, Edelman adds, "he makes it easier for Clinton to show she's more moderate."

But that's not necessarily what Clinton's New York backers want to hear. State Assemblyman Richard Gottfried, for one, a Manhattan Democrat, believes she needs to play a more prominent role in the nomination. So when he attended a "Stand Up for Women" rally against Roberts on July 20 in Union Square, he urged her to take a stand. And since he hasn't seen her role increase, he's writing a letter that echoes his plea.


"People have these feelings about her as a moral leader who'll take courageous positions on important issues," he says, counting himself in this category. Hillary Clinton has what he describes as "an extraordinary gift"—she walks into a room, people listen. The senator, he says, "could make an enormous contribution to people's understanding of what Judge Roberts stands for"—by illuminating the way the judge threatens not just abortion rights but other progressive causes as well.

"It's important that our other senator take an advocacy role," he adds.

Dara Silverman sounds a similar note. The director of Jews for Racial and Economic Justice, based in New York, Silverman joined six other Jewish social-justice groups in delivering a three-page statement on Roberts to Clinton's office last Thursday. Though not opposed to the judge per se, the groups call for a "thorough examination" of the nominee and set out nine specific concerns. Delivered to both New York senators, the statement is meant to show how important the nomination is to social-justice advocates. But it's meant to do something else as well.

"Clearly," Silverman says, "people are looking to Hillary as someone who is a leader, and we want her to lead on this issue."

In fairness, it's hard for advocates to push Clinton to take a stand on Roberts when many liberal groups have spent the past few weeks mutely on the sideline. Most pro-choice and women's rights groups, including NARAL Pro-Choice New York and the National Organization for Women, have opposed Roberts as a direct threat to legal abortion and the health of women. And they're busy organizing letter-writing campaigns and national "call-in" days to the Senate. NARAL is circulating petitions demanding both Clinton and Schumer defeat Roberts.

Yet other groups, such as People for the American Way and Planned Parenthood, have taken a wait-and-see approach. Instead of railing against the nominee, they've crafted a nuanced set of talking points, pushing for information, fine-tuning questions. As Joan Malin of Planned Parenthood of New York City explains, "We want to make sure the right questions are asked and that Roberts answers them."

Who knows whether the left is even girding for a fight? If it does, though, many within this wing will expect Clinton to lead the way. And Steve Gilliard, who writes the liberal News Blog in Manhattan, says the senator couldn't afford to lay low then. Things are already shaky between her and liberals, he says, what with her remarks about finding "common ground" on abortion last January. She pissed off folks even more when she delivered a July 25 speech to the centrist Democratic Leadership Council, using it to broker a truce between the two warring factions of the party.

For liberals, Gilliard observes, "Roberts is just not an issue Senator Clinton can afford to disappoint people on." If she does, he adds, "the anger over these other issues would be dwarfed."


For Clinton, the dicey point comes with what liberals like Gilliard call "a very basic litmus test." Back in 2000, the then candidate went on the record during a debate with her Republican opponent, Rick Lazio, and pledged these words: "I could not support someone who would vote to overturn Roe v. Wade." Pro-choice advocates trumpeted the promise on the campaign trail, holding it up in endorsement literature, using it in TV ads, hammering away at Lazio for refusing to say the same.

These days, Clinton has said very little about that 2000 pledge. At the July 28 press event, reporters put the question to Clinton. But rather than reiterate her comments, she waffled, saying on the one hand that she "shares the concerns of my colleagues," yet on the other, "I'm not going to be speculating."

Her advisers point out that Roberts's positions on many issues, including Roe v. Wade, have yet to be determined, and they say she's merely waiting to see what comes out of the judiciary committee. "Senator Clinton has in no way expressed her intentions as to how she will vote on the nomination," says Philippe Reines, her spokesperson.

Meanwhile, pro-choice advocates aren't doubting where Clinton's loyalty lies. Both Clinton and Schumer, they argue, have long championed women's reproductive rights—and they're not about to change now. Says Kelli Conlin, of NARAL New York, facetiously, "If Hillary Clinton and Chuck Schumer are problems, we're kind of sunk." Clinton, in particular, has voted with the pro-choice advocates on Bush's appellate-court nominees, including Priscilla Owens and Janice Rogers Brown. And she has led the charge on making emergency contraception available over the counter, holding up Bush's nominee to head the Food and Drug Administration to force a decision from the agency (see "Hillary's Plan B," July 13-19, 2005).

"She's a passionate supporter of the right to choose," Conlin adds, "and I don't see that equation changing."


Granted, no Democratic senator has come out in opposition to Roberts. Even Schumer has said he's not opposed to the judge—yet. At the same time, no one is left wondering whether Schumer will cast the honest vote for a progressive senator. After all, he has already opposed the judge once, casting one of three dissenting votes against Roberts for the D.C. Circuit Court of Appeals two years ago. Since Roberts was confirmed by the full Senate on a voice vote—essentially a unanimous pass—Clinton has for all intents supported the judge already.

"I'm not convinced she'll make a principled decision on Roberts," says the Democratic operative who knows both New York senators. "She's Hillary. She's running for president, and she's a cipher. She'll do what is in her electoral interests to do."

Of course, it's tough to make predictions before the confirmation hearings get under way. How Clinton—and for that matter, Schumer—will handle the issue depends largely on how Roberts handles his testimony. He could say something explosive about Roe, or not. He could stonewall on his judicial philosophy, or not. He could force the Democrats into a fight, or not.

The consequences, at least for Clinton, are clear. "In the end, she's going to have to make a decision and defend it," Cuomo says. "It's not something she can fail to do." *

Schumer's Top Questions for Roberts

A key judiciary committee member, Senator Chuck Schumer has been hounding the Bush administration for information on Supreme Court nominee John Roberts. Now he's gearing up to grill Roberts at confirmation hearings next month, with a list of 82 questions he intends to put to the judge. Here's a look at some of Schumer's more revealing questions:

  1. Do you believe that Roe v. Wade (1973) was correctly decided? What is your view of the quality of the legal reasoning in that case? Do you believe that it reached the right result?
  2. How do you define judicial activism? Give us three examples of Supreme Court cases that you consider the product of judicial activism.
  3. Do you agree with the reasoning in Bush v. Gore? Why or why not?
  4. When the Supreme Court issues non-unanimous opinions, Justice Scalia and Justice Ginsburg frequently find themselves in disagreement with each other. Do you more frequently agree with Justice Scalia's opinions, or Justice Ginsburg's?
  5. Do you believe that either the United States Congress or the states can regulate the sexual behavior of individuals within the privacy of their homes?
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