Spineless Dems Whine to the Times

“Had she not cried, we would have won that day,” said one Senate strategist involved in the hearings, who did not want to be quoted by name discussing the Democrats’ problems at the hearing. “It got front-page attention. It was on every local news show.”

Democrats said, Mr. Bush – even at time when many of his other initiatives seem in doubt and when he had been forced by conservatives to withdraw his first choice for the seat – appeared on the verge of achieving what he has set as a primary goal of his presidency: a fundamental reshaping of the federal judiciary along more conservative lines. Mr. Bush has now appointed one-quarter of the federal appeals court judges, and, assuming Judge Alito is confirmed, will have put two self-described conservatives on a Supreme Court that has only two members appointed by a Democratic president.

“They have made a lot of progress,” said Ronald A. Klain, a former Democratic chief counsel for the Judiciary Committee and the White House counsel in charge of judicial nominations for President Bill Clinton. “I hate to say they’re done because Lord only knows what’s next. They have achieved a large part of their objective.”

Asked if he had any hope that Democrats could slow President Bush’s effort to push the court to the right, Mr. Klain responded: “No. The only thing that will fix this is a Democratic president and more vacancies. It takes a long time to make these kinds of changes and it’s going to take a long time to undo them.”

Senator Charles E. Schumer, a New York Democrat and a member of the Judiciary Committee, said it was now hard to imagine a legislative strategy that could slow Mr. Bush’s judicial campaign, assuming vacancies continue to emerge, at least through the end of this year.

“To stop a president on judicial nominations, you either need a Democratic president, a Democratic Senate or moderate Republicans who will break ranks when it’s a conservative nominee,” Mr. Schumer said. “We don’t have any of those three. The only tool we have is the filibuster, which is a very difficult tool to use, and with only 45 Democrats, it’s harder than it was last term.”

Few Democrats or analysts said they thought that Judge Alito’s nomination could ever be blocked, noting that as a rule presidents tended to get their Supreme Court nominees approved by the Senate. “It may be a mistake to think that their failure demonstrates that they necessarily did something wrong,” said Richard H. Fallon, a professor of constitutional law at Harvard Law School. Referring to one of the major Democratic complaints about Judge Alito’s testimony, Mr. Fallon said: “As long as most of the public will settle for evasive or uninformative answers, maybe there was nothing that they could have done to get Alito to make a major error.”