WASHINGTON -- The nomination of John G. Roberts Jr. as chief justice of the United States headed to the full Senate yesterday after the Judiciary Committee voted 13-5 to support him.
With Senate Democrats deeply divided over whether to support Roberts, three Democrats joined the committee's 10 Republicans in giving Roberts a favorable recommendation: Patrick J. Leahy of Vermont, and Herb Kohl and Russell D. Feingold of Wisconsin.
The senators' decisions -- which raised the tally of Democrats planning to vote for Roberts in the full Senate to a quarter of the 44 Democrats -- were a serious blow to abortion and civil rights interest groups who have opposed Roberts' nomination.
Ralph G. Neas, president of People for the American Way, a leading group opposing Roberts, said the fact that three senators who have "consistently been champions on fundamental rights and liberties" backed Roberts, could harm Democrats' chances for getting a moderate nominee to replace retiring Justice Sandra Day O'Connor, who cast the deciding vote in many of the court's recent 5-4 decisions.
"Today was a defeat.... The president responds to strength," Neas said. "The more votes against Roberts' nomination, the better chance there is of getting someone in the mainstream [for O'Connor's seat]."
Feingold's vote was most surprising. The Wisconsin senator vigorously questioned Roberts and has challenged the Bush administration on numerous civil liberties issues. He was the only senator to vote against the Patriot Act and he received the second highest rating from the American Civil Liberties Union for his votes during the last session of Congress.
But Feingold, who said he had sought the advice Roberts' former colleagues from across the political spectrum, said he was persuaded that Roberts did not have an ideological agenda.
Feingold said he was pleased to hear Roberts say that the Bill of Rights doesn't change during a time of war and said he believed Roberts would have "an appropriately skeptical mindset" about the need for government secrecy.
Feingold also said was convinced that if Roberts abided by what he had said in the hearings about the importance of judicial precedent that he believed Roberts would not overturn the Roe v. Wade decision guaranteeing women the right to an abortion.
"It will be difficult to overrule Roe or any other important precedents while remaining true to his testimony about stability and settled law," Feingold said. "I personally will consider it a reversal of huge proportions and a grave disappointment if he ultimately does attempt to go down that road."
But doubts on that question -- and on other important legal matters such as Congressional power to regulate matters relating to interstate commerce -- pushed the committee's five other Democrats in the opposite direction.
California Sen. Dianne Feinstein, the committee's lone female, Massachusetts Sen. Edward M. Kennedy, Delaware Sen. Joseph R. Biden Jr., New York Sen. Charles E. Schumer, and Illinois Sen. Dick Durbin all said they still questioned Roberts' bedrock views on a range of issues -- from abortion and privacy, to disability rights.
Schumer said Roberts "was such a good witness that everyone seemed to emerge from the hearing with a different view of what he actually said."
Feinstein and Schumer said they had wrestled with the decision over the past week -- even meeting late Wednesday and then holding a late night conference call -- and both were troubled after they asked their staffs to compare Roberts' answers to those of Justice Clarence Thomas.
Their concern was that Roberts used the phrase that he had "no quarrel" with the way the court reasoned in several controversial cases, including at least one involving privacy rights, which was an answer Thomas had used on eight topics, Feinstein said.
"And yet when faced with these topics on the court, [Thomas] took a position indicating that he did, in fact, have a quarrel with the case on abortion, on church and state separation, on precedent, and on the commerce clause," Feinstein said. "I came to believe that 'I have no quarrel with' is a kind of term of art of equivocation."
Explaining her decision late yesterday, Feinstein said she had considered the number of cases on the Supreme Court's docket over the next year that could govern "basic rights" -- and had continually returned to her doubts about how Roberts would rule on cases involving abortion rights.
"I thought, if I vote for him and he goes the other way and it was a situation where women would die, I'd never forgive myself," Feinstein said. "It was a gamble and I just couldn't take that gamble, because he's going to be there for so long."
The minds of many senators were clearly on the next nomination.
Senate Judiciary Committee Chairman Arlen Specter, R-Pa., said he did not expect the president to appoint a nominee to replace retiring O'Connor until after senators cast their final vote, which will be no later than next Thursday.
