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Looking beyond Roberts Senators awaiting next court nominee

With John G. Roberts Jr.'s confirmation as chief justice virtually assured, Senate Judiciary Committee members who voted on his nomination Thursday began looking toward a more contentious battle to come over the next Supreme Court vacancy.

The committee approved Roberts' selection by a 13-5 vote, with three of the panel's eight Democrats voting in favor of the Buffalo-born attorney. Sen. Charles E. Schumer, D-N.Y., who has pushed his party to press judicial nominees about their approach to the law, voted "no," saying that many of his questions about Roberts remained unanswered.

Sen. Hillary Rodham Clinton, a New York Democrat who is not on the committee, announced that she will oppose Roberts. But with a handful of other Senate Democrats saying they will support him, the full Senate probably will confirm him next week as the replacement to the late Chief Justice William H. Rehnquist.

With that in mind, Judiciary Committee members said they expect more fireworks when President Bush nominates a replacement for retiring Justice Sandra Day O'Connor, a key moderate on social issues such as abortion and affirmative action.

If Roberts had been replacing O'Connor rather than a staunch conservative like Rehnquist, "he wouldn't have gotten any [Democratic] votes," Schumer said.

Senate Judiciary Committee Chairman Arlen Specter, R-Pa., said the president should have learned some lessons from the Senate's reaction to Roberts, who boosted his bipartisan support by vowing to be a "modest" judge who would not legislate from the bench.

"When President Bush selected John Roberts, he disarmed his critics," Specter said. "The challenge to the president now is to pick someone as good as John Roberts."

Bush is expected to name O'Connor's replacement as soon as next week. Possible nominees include federal appellate judges Janice Rogers Brown, J. Michael Luttig and Samuel A. Alito Jr. -- outspoken conservatives who would prompt flat-out Democratic opposition.

"Please send us a moderate, but if you send someone who is very ideological, there'll be a much bigger fight than on Roberts because this is for the O'Connor seat, and that's the swing vote on the court," Schumer said.

Democrats on the panel initially had been expected to uniformly oppose Roberts, an appellate court judge. However, some Democrats said Roberts' sterling credentials as an appellate lawyer and judge had won their support.

"John Roberts has the legal skills, the intellect and the character to be a good chief justice," said Sen. Russell D. Feingold, D-Wis., a leading liberal who is contemplating a presidential run in 2008.

The committee's ranking Democrat, Sen. Patrick J. Leahy of Vermont, and Sen. Herb Kohl, D-Wis., also voted for Roberts.

But five Democrats voiced strong concerns, saying Roberts did not give the panel a clear enough idea of how he felt on such central matters as the constitutional right to privacy, the legal underpinning of the right to abortion.

"Judge Roberts was such a good witness that everyone seemed to emerge from the hearing with a different view of what he actually said," Schumer said. "We are still unsure of the answer to the central question: 'Who is Judge Roberts?' "

Clinton agreed.

"I do not believe that the judge has presented his views with enough clarity and specificity for me to in good conscience cast a vote on his behalf," Clinton said in a news release.

"My decision to maintain the already fragile Supreme Court majority for civil rights, voting rights and women's rights outweigh the respect I have for Judge Roberts' intellect, character and legal skills."

Bush initially nominated Roberts in July to succeed O'Connor. But two days after Rehnquist's death, the president nominated Roberts as chief justice.

Republicans on the panel uniformly portrayed Roberts as a mainstream conservative jurist in the mold of Rehnquist.

Roberts built a surprising consensus on the committee, winning the support of Democrats such as Leahy who sharply challenged the nominee during last week's hearings.

"Judge Roberts is a man of integrity," Leahy said. "I take him at his word that he does not have an ideological agenda."

But senators who opposed Roberts said the nominee left them with a difficult choice.

For Schumer, it came down to deciding whether Roberts would be a traditional conservative or a more doctrinaire jurist such as Justice Clarence Thomas. Schumer said that while the odds are that Roberts will be more traditional, he answered questions before the panel much as Thomas had.

And that helped convince Schumer, after a meeting with other senators Wednesday night, to vote against Roberts. "I hope he is not a Thomas," Schumer said of Roberts, "but the risk is too great to bear."

Democrats on the Judiciary Committee who joined Schumer in opposing Roberts were Dianne Feinstein of California, Joseph R. Biden Jr. of Delaware, Richard J. Durbin of Illinois and Edward M. Kennedy of Massachusetts.

e-mail: jzremski@buffnews.com

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