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Roberts has momentum as hearings begin

Conservative strategists say foes failed to set impression

WASHINGTON -- For more than four years, liberal activists assiduously mounted plans to beat back President Bush's first Supreme Court choice -- the first Republican nominee since they nearly defeated Supreme Court Justice Clarence Thomas 14 years ago.

But when President Bush announced his choice, John G. Roberts Jr., whose confirmation hearings before the Senate Judiciary Committee begin today, key liberal leaders waited more than a month to declare their opposition, and even then they didn't launch mass advertising campaigns. That left a media void that their conservative foes eagerly filled.

''They broke their own rule," said Leonard A. Leo, a leader of the pro-Roberts forces. ''They didn't define the nominee within the first 24 hours."

Lacking hard evidence about Roberts's judicial philosophy and encountering his supporters even within the liberal wing of Washington's legal establishment, a well-funded and primed coalition of scores of interest groups balked. The result, many of their strategists concede, is that Roberts heads into the Senate Judiciary Committee today with a strong public-approval rating and widely held expectations that he will be confirmed.

''The collective silence on our side made his confirmation seem like a foregone conclusion," said a Democratic strategist close to the proceedings. ''It created a sense of inevitability that's hard to undo."

Liberal activists expect Bush's elevation of his nominee to chief justice status to make the proceedings more contentious because ''the magnitude of what's at stake has increased," said Ralph G. Neas, president of People for the American Way and an architect of Supreme Court nominee Robert Bork's defeat in 1987 during the Reagan administration.

But barring a surprising revelation this week, Roberts's foes know the odds are against them in a Senate controlled 55 to 45 by Republicans. While minority Democrats could mount a filibuster on the Senate floor, sources close to the proceedings say that is highly unlikely. Meanwhile, liberal leaders hope for a clearer shot with Bush's second nominee, expected to be announced once Roberts is confirmed. ''We learned this time, so we'll be a little louder, more demonstrative on the next one," said the Democratic strategist.

Liberal leaders say that Bush's choice of Roberts, a two-year D.C. appellate judge with a minimal paper trail, made him an elusive target. ''He was the only one we didn't have a comprehensive report on," said Neas.

And Roberts's genial personality, pro bono work, and deep ties in the Washington legal establishment further complicated their line of attack. ''When you practice with people, there's a desire to close ranks," said Nan Aron, president of the Alliance for Justice, who helped orchestrate Democratic opposition to Thomas in 1991.

But Roberts's foes were also hurt by a disciplined Republican public-relations machine that took a page out of the liberal playbook.

Leo, who took leave from his post as executive vice president of the Federalist Society to help shepherd the pro-Roberts forces, last year bought the book ''The People Rising" to study the strategy of the liberal groups that helped defeat Bork. Then he copied them.

On July 19, as Bush capped a day of rumors by announcing Roberts's nomination, Leo and his allies were so quick to mount a pro-Roberts media campaign that their liberal foes still suspect the White House tipped them off.

Leo insisted that was not the case, but he did use his insights into the White House vetting process to narrow the list to Roberts and Fifth Circuit Court Judge Priscilla Owen. And he used his legal contacts in New Orleans to rule out the name that much of the news media were betting on that day -- Edith Brown Clement. After placing a few calls, Leo learned that the appellate court judge was having lunch that day at her favorite club. When the nominee's name leaked out early that evening, Creative Response Concepts, the right-leaning public-relations firm hired by the Federalist Society, zapped pretaped footage of legal scholars singing Roberts's praises to local TV stations, got speakers booked on live national broadcasts, and offered interviews to the print press.

By contrast, liberal foes appeared caught off-guard. ''Our people were alone in green rooms," Leo boasted, referring to the waiting rooms of TV studios.

While the National Abortion Rights Action League, or NARAL, immediately attacked the nomination, a broad range of other interest groups held back.

Veteran judicial warriors such as Neas and Aron knew Roberts was on Bush's short list, but when the announcement came, they did not have much to say about the Washington judge other than to express ''concerns." ''We just didn't know enough about him," said Aron. People for the American Way had compiled extensive dossiers on other prospective nominees, but only a 10-page summary on Roberts.

Roberts's fate hinges on the votes of US senators, not interest groups, but liberal activists historically have played an influential role in judicial nominations. Now, with campaign finance laws sharply limiting financial contributions to political parties, the groups also have become a critical source of money for Democratic campaigns. In last year's presidential race, media spending by pro-Kerry, anti-Bush interest groups often rivaled that of the Kerry campaign.

As they had in the Bork battle, liberal leaders in July pleaded with Democratic senators not to make up their minds before the hearings, fearing that the initial warm glow of media attention on Roberts might cause some Democrats to declare their early support.

By late July, as presidential archives began releasing tens of thousands of pages of documents on Roberts's service in the Reagan and Bush administrations, activists could start building their narrative. ''Concerns" about him evolved into a detailed portrait painting Roberts as a ''movement conservative," with views to the right of most mainstream Republicans. But even that argument ran into snags when Roberts's supporters contended that he was writing on behalf of a ''client" -- the government -- and not necessarily expressing his own views.

In early August, NARAL blundered when it produced a TV commercial accusing Roberts of ''supporting violent fringe groups and a convicted bomber," based on a legal brief Roberts once wrote questioning abortion clinics' legal authority to use an antidiscrimination statute against antiabortion demonstrators. Under fire, NARAL pulled the ad.

Some liberal strategists say the episode hurt their cause. And conservative strategists say the NARAL ad united the right at a time when social conservatives were expressing reservations about volunteer legal work Roberts had done in capital punishment and gay-rights cases.

As teams of public-interest lawyers plowed through the archival files in late July and early August, liberal leaders resisted taking a stance against Roberts. That changed by the end of last month, as groups representing gender and ethnic equality, gay and reproductive rights, environmental causes, and a range of other interests began announcing their opposition.

In a carefully orchestrated drumbeat of outrage, the groups arrayed against Roberts split up to hold separate press conferences on an almost daily basis. But behind those sessions were signs that the interest groups did not hold out much hope.

Alliance for Justice did not mount an advertising campaign. And People for the American Way has scripts for advertisements in the can but no plans yet to use them. Last week, Neas still held out hope that the compass would shift, noting that Bork had been widely expected to win confirmation before his hearings began.

''The judiciary committee hearings," Neas declared, ''are always determinative."

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