John G. Roberts 1, Senate Judiciary Committee 0

To resurrect Roberts's now-famous baseball metaphor from the first day of hearings last week, the Democrats on the SJC struck out. Without even so much as swinging, let alone swinging for the fences.

The hearings began with senatorial "self-congratulation", as Dahlia Lithwick put it at Slate, and didn't really go anywhere from there. All we got from Roberts was a declaration of judicial neutrality (a defence of law, as opposed to "law-plus"), guarantees of personal humility and modesty, innumerable refusals to answer questions about, well, everything, and the performance of a lifetime (just give him the Oscar now). Lithwick again:

John Roberts is putting on a clinic.

He completely understands that he needs only to sit very quietly, head cocked to signal listening-ness, while senator after senator offers long discursive rambling speeches. Only when he's perfectly certain that a question has been asked does he offer a reply; usually cogent and spare. Here's a man long accustomed to answering really hard questions from extremely smart people, suddenly faced with the almost-harder task of answering obvious questions from less-smart people. He finds himself standing in a batting cage with the pitching machine set way too slow.

It's increasingly clear that Senate Democrats are giving up.

That was Tuesday. And they did.

Not that they had much hope, mind you. There was no chance a Republican was going to turn on Roberts, and the Democrats are themselves divided on his candidacy. But they had to put on a show, if only to pander their own base on the left and, more importantly, to prepare for the more important battle coming up next: the nomination of O'Connor's replacement, which could shift the balance on the Court well over to the right.

The problem is, they just weren't able to penetrate Robert's armor. Not that they really tried. I mean, couldn't one of them have pushed him on, oh, Hamdan v. Rumsfeld, the D.C. federal court of appeals case that ultimately provided "a blank-check grant of power to the Bush administration to try suspected terrorists without basic due-process protections"? -- Roberts joined the majority on that one; given his short judicial record, shouldn't alarm bells have gone off? Apparently not. Here's what happened:

Abandoning their efforts to win votes back home or to score cheap points off a constitutional superstar, Senate Democrats this morning come clean with their real fears about John Roberts: Confesses a frustrated Dianne Feinstein, D-Calif., "I don't really know what I'm going to do with respect to voting for you or voting against you... The impression that I have today is of this very cautious, very precise man." Chuck Schumer, D-N.Y., frets: "I, for one, have woken up in the middle of the night thinking about it, being unsure how to vote."

Poor Chuck Schumer.

Essentially, it all came down to this: Roberts beat them. Neither insane nor ideological (nor both), Roberts didn't leave an opening for the Democrats to exploit. They were looking for one, sort of, but he presented himself as a solid, decent guy who respects precedent, worships the rule of law, and avoids activism. As I put it yesterday, he's still something of a risk, but he didn't do anything to suggest that he isn't a risk worth taking. Sure, he's a conservative, both politically and temperamentally, but what did Democrats expect? Bush wasn't about to nominate a liberal, nor even a broadly appealing moderate. If anything, Roberts is a better sort of conservative than some of the other leading candidates (McConnell, Luttig, Garza, etc.). So, in the end, Roberts isn't liberal enough and he didn't answer enough questions. He remains an enigma. And so, whether out of principle or political expediency, five Democrats on the SJC voted no.

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Yes, the SJC vote today was 13-5 in favour of sending Roberts's nomination to the Senate floor for confirmation. While ranking member Patrick Leahy of Vermont and Russ Feingold and Herbert Kohl voted for him, Ted Kennedy of Massachusetts, Joe Biden of Delaware, Chuck Schumer of New York, Dianne Feinstein of California, and Dick Durbin of Illinois voted against him. John Kerry of Massachusetts has already voice his opposition, as have -- looking ahead to 2008 and beyond, Hillary Clinton of New York and Barack Obama of Illinois.

And that's pretty much it. Democrats will line up a significant anti-Roberts vote, but there won't be a filibuster and Roberts will be confirmed as the next chief justice of the United States.

Which, as I've said before, is fine. I wouldn't have nominated him, but I wouldn't vote against his nomination. But it would have been nice if Democrats had put up more of a fight, or if they'd at least taken a swing for the fences.

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In addition to The Moderate Voice, see also:

• The Left Coaster
• AMERICAblog
• Demagogue
• RedState.org (yes, just to give you some balance)
• Power Line (more balance, however wrong)