Kennedy opposition carries risks for Supreme Court fight
By Rick Klein, Globe Staff | July 17, 2005
WASHINGTON -- Senator Edward M. Kennedy's ringing baritone carried over the nearly empty Senate chamber, sounding a warning on a familiar subject. The liberal lion stood behind his desk in the chamber's last row and promised an aggressive and detailed grilling of whomever President Bush selects for the Supreme Court.
Kennedy, who set the stage for the most contentious confirmation battle of recent history with his furious ''Robert Bork's America" speech 18 years ago, is now poised to take the lead for the Democrats in the fight over Justice Sandra Day O'Connor's replacement. Harry Reid, the Senate minority leader, has tapped him as the Democrats' point person for strategy and messaging in a campaign that will be run out of Kennedy's office, where more than 20 staffers have been preparing since February.
''The American people deserve to know whether nominees would roll back civil rights laws, or uphold the rights of the disabled, the elderly, and minorities," Kennedy thundered on Wednesday, in a speech that referenced rejections of nominees offered by presidents Washington, Madison, Polk, and Hoover. ''The American people are entitled to know if a nominee respects women's right to equal treatment in our society and to privacy in making reproductive decisions."
In a Senate in which 56 of the 100 members have never cast a vote on a Supreme Court nominee, Kennedy -- the longest-serving member of the Senate Judiciary Committee in history -- is poised to weigh in for the 20th time. He is acutely aware of his role as a storehouse of institutional knowledge. And the fire is still in him, as he takes to the well of the Senate whenever he can secure floor time in order to lay out his requirements for the next justice.
But even as Kennedy pounds the lectern, there is an awareness throughout the Capitol that this may not be the moment for a vintage Kennedy liberal crusade. There are now only 44 Democratic senators -- the low point in Kennedy's 42-year Senate career -- and Republicans are poised to lob charges of obstructionism if the party is too quick to oppose Bush's pick.
A group of 14 Senate moderates -- including seven Democrats -- has emerged as a new power center on judicial nominations, siphoning influence from leaders of both parties. A new crop of liberal lawmakers, most notably Senator Charles E. Schumer, Democrat of New York, are clamoring to wield influence. Some grass-roots Democrats worry that a Kennedy-led protest over issues like abortion and gay rights could sink the party in many corners of the country.
In recognition of these changed circumstances, there has been a different tone to Kennedy's public comments and his behind-the-scenes preparations. The senator who ripped into Bork within an hour of his nomination in 1987 -- describing the ''back-alley abortions" and ''segregated lunch counters" of ''Robert Bork's America" -- is saying that this time, he's unlikely to take a public position on the nominee until his or her record is vetted by the Judiciary Committee.
''I'd like to be hopeful about the person, and I'd like to be positive about the person," Kennedy said. ''We might take a position early, but that's not my current plan."
The Massachusetts Democrat has talked twice about the nomination with Andrew H. Card Jr., White House chief of staff, and has had kind words for the president's outreach efforts to senators.
He has even indicated an open mind about one of Bush's assumed short-list candidates, Attorney General Alberto R. Gonzales, despite having accused Gonzales earlier this year of ignoring the rule of law and being ''at the center of a torture policy that has run roughshod over the values that Americans hold so dear."
''With Gonzales, people would want to ask questions and go through the process, but I think certainly he'd have a lot of support in the Senate," Kennedy said in an interview. ''I don't think it's really clear at this point what the outcome would be, but he's got support within the Hispanic community."
Cooperation and comity aside, Kennedy has made it clear that he will not hesitate to lead an effort to block a nominee whom he feels will not protect civil rights and personal freedoms. He was the first Democratic senator to hold a press conference after O'Connor announced that she is stepping down, where he warned that a filibuster will be in order if Bush nominates someone who ''threatens to roll back the rights and freedoms of the American people."
''I'm not going to change what I've stood for for 40 years in the Senate," Kennedy said. ''I take it very seriously with regards to the Supreme Court, because at the end of the day, this is the place where the rights and liberties of the American people are best protected."
There is a part of Kennedy that would appear to relish a fight, should it come to that. Shortly after the press conference he held in the aftermath of O'Connor's announcement, when a reporter mentioned to Kennedy that he has already been through 18 Supreme Court nominations, Kennedy quickly corrected him with a smile.
''It's 19, actually," he said, his eyes lighting up. ''Don't forget, when [William H.] Rehnquist went to chief justice, I led the fight on that one, too."
Back in February, with Rehnquist ailing and a court vacancy looking more likely, Kennedy assigned aides to research the writings, speeches, and backgrounds of potential Bush nominees. Two dozen three-ring binders now sit in Kennedy's suite of offices -- thorough analyses of potential picks that are separate from the research conducted by the staff of the Judiciary Committee's ranking Democrat, Senator Patrick J. Leahy of Vermont, who also will play a leading role in the confirmation process.
Kennedy has held conference calls and meetings with leading liberal and minority-rights interest groups, which are primed for the first court battle of the Internet age. Stephanie Cutter, a veteran Kennedy aide who last year served as communications director for Senator John F. Kerry's presidential campaign, is back working for Kennedy, where she is the ''campaign manager" for the Senate Democrats' Supreme Court efforts.
Kennedy has long been a familiar face in confirmation fights. One of his proudest moments came in 1987, where he led successful Democratic opposition to Bork in a battle credited with changing the political landscape around nominations. But four years later, with embarrassments in his personal life overshadowing his Senate actions, he stayed awkwardly silent during the contentious Clarence Thomas confirmation hearings.
This time, Democrats could find themselves at some risk if Kennedy is out front opposing a nomination, owing to his unpopularity in much of the country. Conservative groups such as the Committee for Justice have warned that if liberals like Kennedy attack a nominee, they will use that as a weapon against Senate Democrats from conservative parts of the country.
If Kennedy leads the way in stalwart opposition of a nomination based on issues like abortion and gay marriage, the Democratic Party could lose ground with the public and miss a chance to expand its base, said Jerry Lundergan, chairman of the Kentucky Democratic Party.
''I have all the respect in the world for Senator Kennedy, but when you get into deep western Kentucky -- a very conservative part of the state -- his role in the selecting of the Supreme Court justice probably will not play so well," Lundergan said. ''It can be a real, real downfall for the Democratic Party if we go into this thing being Stonewall Jackson."
Senator Barack Obama, Democrat of Illinois, said he and other newer senators will be looking to Kennedy to set the tone for the Democrats and provide guidance regarding the procedures for considering a nomination. But when it comes time to vote, Obama said most senators will act based on their own judgment.
''I probably will be looking to my more senior colleagues on process and procedure," Obama said. ''With respect to the legal issues involved, I'm probably in a position to make my own judgments."
Kennedy expressed agreement with that assessment, saying that he realizes that senators are independent-minded and that the Senate may wind up confirming a nominee that he opposes. But that has not stopped him from offering history lessons to his colleagues these days; he has quoted debate from the constitutional convention in closed-door meetings for Senate Democrats, and arranged for historian Robert Caro to tell Democrats about the history of the Senate's role on judicial matters.
''What's happening is that this institution is in the process of learning anew," Kennedy said. ''We all ought to just try and think through this whole process, and work through this whole thing together."
Rick Klein can be reached at rklein@globe.com.
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