The Tempting of John Roberts

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John Roberts spent most of the first day of his Senate confirmation hearing doing what he does best—being a perfect student. He listened dutifully as Senator Orrin Hatch instructed him on drawing the line against probing questions from Democrats. He nodded with understanding at the dramatic flourishes of Sen. Joseph Biden, who told him that as a Supreme Court justice he might rule on whether microchips could be implanted in people to track them. And when Senator Dianne Feinstein launched an impassioned defense of abortion rights, Roberts focused intently on her even as people were entering and exiting the hearing room.

Now, in a last, desperate attempt to get traction against the seemingly unassailable nominee, Senate Democrats are trying to turn Roberts' perfectionism against him. Frustrated by the Bush administration's unwillingness to provide documents they think might show Roberts is a radical, Democrats are hoping they can tempt him to answer controversial questions by dangling their votes as bait. Maybe, the Democrats hope, he's just enough of a perfectionist that he won't be satisfied with a bare majority for his confirmation—maybe his pride will kick in and he'll be tempted to try and get at least the 96 votes that Clinton-appointee Ruth Bader Ginsburg got.

At the conclusion of his remarks, Senator Charles Schumer told Roberts that he could have his vote if he answered questions fully and proved he wasn't a radical. Biden said that without an explanation during the hearing of Robert's past writings, he'd have to vote against him—implying that if he came clean, Roberts could win a yes vote from the Delaware Democrat. One Democratic staffer explained the tactic as playing to Roberts' need to win, in the hopes that the man who has argued and won so many cases in front of the Supreme Court can be lured out of his carefully maintained defenses to answer hot-button questions on race, abortion and religion.

Not likely, say Republicans. Leonard Leo, executive vice president of the Federalist Society and a White House advisor on the Roberts nomination, says Roberts is too smart to get drawn in. "He knows it's about 51 votes," Leo says. Former Indiana Representative David McIntosh says Roberts is focused on keeping his far right supporters happy while reassuring centrist Republicans who are the key to his confirmation. Roberts' six-minute opening remarks today managed to cram in tips of the hat to both groups. For the hardliners, he argued the importance of rule of law over individual rights. For the centrists, like Judiciary Committee Chairman Arlen Specter, he emphasized his respect for the opinions of current and past judicial decisions. "His goal is to reassure the skeptics in the 45-50 vote range," says McIntosh, "Those are the votes he has to keep to get through and he'll stay focused on them."

That said, even some Republican staffers find Roberts' flawlessness a liability. After the usual niceties on the sidelines of the hearing, a top Republican staffer confided that Roberts is, indeed, perfect. "Too perfect," he said, rolling his eyes.