Feingold's Puzzling Vote

Following yesterday's 13-5 vote in the Senate Judiciary Committee in favor of Chief Justice nominee John Roberts, People For the American Way's Ralph Neas accused the Democrats who voted for Roberts of "gambling with Americans’ rights and freedoms." For his part, yes-vote Leahy weakly defended his decision, saying: "<!--StartFragment -->I respect those who have come to different conclusions, and I readily acknowledge the unknowable at this moment, that perhaps they are right and I am wrong. Only time will tell." That's exactly what people are worried about, Pat: the major decisions Roberts will be ruling on over the course of his term.

Many court-watchers and liberal advocacy groups are especially frustrated with Russ Feingold's vote. After all, Feingold asked some of the toughest questions of Roberts. The Nation's John Nichols expresses befuddlement over the fact that Feingold "got some of the worst answers" from Roberts during the hearing. I would add that Roberts' answers to Feinstein about privacy were equally troubling in their ambiguity, but Feinstein didn't vote yes! Here is Nichols' commentary  that includes Feingold's statement explaining his vote:

The senator, who has a record of showing great deference to presidents when it comes to confirming nominees (including that of former Attorney General John Ashcroft), had his excuses. He told the committee, "Judge Roberts's impeccable legal credentials, his reputation and record as a fair-minded person, and his commitment to modesty and respect for precedent have persuaded me that he will not bring an ideological agenda to the position of Chief Justice of the United States and that he should be confirmed."

But, then, in the same statement to the committee, Feingold admitted, "I do not want to minimize the concerns that have been expressed by those who oppose the nomination. I share some of them. Many of my misgivings about this nomination stem from Judge Roberts's refusal to answer many of our reasonable questions. Not only that, he refused to acknowledge that many of the positions he took as a member of the Reagan Administration team were misguided or in some cases even flat-out wrong."

The fact is that Feingold asked some of the best questions of Roberts on those very issues, and he got some of the worst answers.

Unfortunately, Feingold does not appear to have taken those exchanges seriously enough to decide that Roberts failed the test.

One senator who did listen to Feingold's exchanges with the nominee was Massachusetts Democrat Edward Kennedy.

In explaining his decision to vote against Roberts, Kennedy specifically mentioned Feingold's pointed questioning of Roberts.

Recalling the discussion of the Roberts's efforts to block the strengthening of the Voting Rights Act when the nominee served in Ronald Reagan's administration, the Massachusetts senator noted that, "Both Senator Feingold and I tried to find out whether he came to agree with the strengthened Voting Rights Act after President Reagan signed it into law. Even when Senator Feingold asked whether Judge Roberts would acknowledge today that he had been wrong to oppose (limits on the ability of minorities to seek protection under the Voting Rights Act), he refused to give a yes-or-no answer."

Kennedy went on to point out that: "Senator Feingold asked: 'What I'm trying to figure out is, given the fact that you've followed this issue for such a long time, I would think you would have a view at this point about… whether the department was right in seeking to keep the (narrow) intent test (that Roberts lobbied for) or whether time has shown that the (broader) effects test (that was supported by civil rights groups and much of Congress) is really the more appropriate test.'

"Judge Roberts responded, 'I'm certainly not an expert in the area and haven't followed and have no way of evaluating the relative effectiveness of the law as amended or the law as it was prior to 1982.

"So we still don't know whether he supports the basic law against voting practices that result in denying voting rights because of race, national origin, or language minority status."

Feingold's questioning helped Kennedy form his conclusion that, "Based on the record available, there is clear and convincing evidence that Judge Roberts' view of the rule of law would narrow the protection of basic voting rights. The values and perspectives displayed over and over again in his record cast large doubts on his view of the validity of laws that remove barriers to equal opportunity for women, minorities, and the disabled. His record raises serious questions about the power of Congress to pass laws to protect citizens in matters they care about."

Kennedy concluded, appropriately, that it would be irresponsible on any senator -- particularly any progressive senator -- to vote for the Roberts nomination.

Feingold did not choose to embrace the responsibility that Kennedy recognized. Though he asked the right questions, Feingold cast the wrong vote.

Opposing the Roberts' nomination is one of those votes that deserves a thank-you. To refresh your memory, voting "no" were Democrats Sens. Edward M. Kennedy, Mass.; Joseph Biden, Del.; Dianne Feinstein, Calif.; Charles E. Schumer, N.Y.; and Richard J. Durbin, Ill. Find their contact info by clicking here .

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