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Parties at odds over Senate's role in picking high court nominee

WASHINGTON _When President Bush meets this week with senators to discuss the Supreme Court, the question hanging over their session will be one that's troubled such talks for generations: What role does the Senate play in picking a justice?

Democrats will go into the meeting insisting that the president heed their advice before nominating someone to replace Justice Sandra Day O' Connor—and perhaps Chief Justice William Rehnquist as well. They and their allies insist that's not only good politics but also what the Founding Fathers had in mind.

"The Constitution ... makes the president and the Senate equal partners in both the appointment and confirmation of federal judges," said Nan Aron, president of the Alliance for Justice, a left-leaning coalition of women's groups, civil rights and environmental organizations.

Republicans scoff. They insist that Bush is simply being polite by consulting Senate Democrats—and even Senate Republicans. They say the Senate doesn't really get a say until after the nomination is made, when the Senate gets to vote yes or no.

Said conservative strategist Keith Appell: "There is no constitutional role for senators prior to the nomination."

Both sides have dual strategies.

For Bush, courting Senate Democrats could make it easier to win Senate approval for his eventual nominee. If he can't convince them, he at least hopes to convince the country going into the 2006 mid-term elections that he was conciliatory and that the opposition party was obstructionist.

Democrats hope they can draw Bush into nominating a moderate. Failing that, they at least want to be able to tell the country that Bush acted unilaterally, defying the Senate's constitutional role.

Bush, who returned from Europe Friday afternoon, was expected to meet Monday or Tuesday with the top Senate leaders of both parties on the court question. The meeting is expected to include Sens. Bill Frist, R-Tenn., the majority leader; Arlen Specter, R-Pa., chairman of the Judiciary Committee; Harry Reid, D-Nev., the minority leader; and Patrick Leahy, D-Vt., the senior Democrat on the Judiciary Committee.

Bush already has spoken by telephone with Reid and Leahy, though he didn't discuss the pending nomination in detail. He's indicated that he'll take his time before selecting a nominee.

White House Chief of Staff Andrew Card recently spoke by telephone with several Democrats who sit on the Judiciary Committee: Sens. Richard Durbin of Illinois, Edward Kennedy of Massachusetts and Charles Schumer of New York. The committee will be the one that holds hearings on the nomination and sets the tone for the confirmation process in the Senate.

Card also spoke with Sens. Robert Byrd, D-W.Va., and Ben Nelson, D-Neb., two of the seven Democrats who signed a deal in May allowing the Senate to break a Democratic filibuster, or endless debate, and vote on the confirmation of several Bush nominees for lower federal courts.

This week's White House meeting is "an important first step in the process of meaningful consultation, but we must make sure that this is more than just a courtesy call," Schumer said Friday in a memo e-mailed to Democrats.

"Bush must engage in real, meaningful consultation before making any decisions. ... Meaningful consultation is not just checking names off a list or making a courtesy call with no real chance for discussion," Schumer contended.

Democrats argue that recent history is on their side.

They note that former Democratic President Bill Clinton consulted Sen. Orrin Hatch, R-Utah, then the chairman of the Judiciary Committee, before nominating Ruth Bader Ginsburg and Stephen Breyer to the court.

In his 2002 autobiography, Hatch wrote that he dissuaded Clinton from naming Interior Secretary Bruce Babbitt and that he suggested Breyer and Ginsburg.

"I told him that confirmation would not be easy," Hatch wrote. "I explained to the president that although he might prevail in the end, he should consider whether he wanted a tough, political battle over his first appointment to the court."

Turning to other potential nominees, Hatch wrote that he raised the subject of Breyer and Ginsburg. "I indicated I thought they would be confirmed easily. I knew them both and believed that, while liberal, they were highly honest and capable jurists and their confirmation would not embarrass the president."

Clinton ended up passing over Babbitt and nominating Ginsburg and Breyer. But it's not clear whether he did it because of Hatch or instead might have been leaning that way already.

In his account of the time, former White House aide George Stephanopoulos wrote that Clinton had been warned off of Babbitt by then-Sen. Dennis DeConcini of Arizona, Babbitt's home-state Democratic senator. And in his autobiography, Clinton didn't even mention speaking with Hatch.

Republicans counter that the Constitution requires the president to get the advice and consent of the Senate AFTER he nominates someone to the high court.

"Democrats are already overreaching and overstepping their constitutional role," Appell said. "The president ... has already consulted with them and will continue to do so as a courtesy. But he is in no way constitutionally bound to discuss specific nominees."

Sen. John Cornyn, R-Texas, a member of the Judiciary Committee, advised Bush as early as 2003 to ignore the request of Senate Democrats to be included in picking a nominee.

"Neither the Constitution nor tradition confers any responsibility or authority upon individual senators to recommend nominees to the Supreme Court," he wrote to Bush, "or imposes any obligation upon the president to seek advice from senators prior to announcing such a nomination."

Cornyn said that Founding Fathers James Madison, Thomas Jefferson and John Jay all urged the first president, George Washington, not to consult the Senate before nominations.

However, Washington initially thought that the constitutional requirement for Senate advice and consent in treaties and nominations mandated him to go before the Senate, as he did when presenting a group of proposed treaties in 1789, his first year in office. But when debate dragged on, he grew angry and stormed out, never to return.

"From that time onward," wrote historian Joseph J. Ellis, "the phrase `advice and consent' meant something less than direct executive solicitation of senatorial opinion, and the role of the Senate as an equal partner in the crafting of treaties came to be regarded as a violation of the separation of powers principle."

When Washington later nominated Jay as chief justice, he did so without consulting the Senate.

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(c) 2005, Knight Ridder/Tribune Information Services.

GRAPHIC (from KRT Graphics, 202-383-6064): 20050706 SCOTUS candidates

ARCHIVE PHOTOS on KRT Direct (from KRT Photo Service, 202-383-6099): Orrin Hatch, John Cornyn

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