Outwitted and outclassed: the Democrats stumble on Roberts.

AT about 6:00 P.M. on Wednesday, September 14, in approximately the 19th hour of Supreme Court chief-justice nominee John Roberts's testimony before the Senate Judiciary Committee, after each senator had had the opportunity to question Roberts at great length, California Democrat Dianne Feinstein looked at Roberts and said, earnestly, "I want to go back to the 'hapless toad.' It still bothers me."

If a single question could be said to have drained whatever energy and interest remained among a dwindling number of senators, reporters, and spectators in the Hart Building hearing room--well, that was it. Feinstein was referring to a phrase Roberts had used in an oft-quoted 2003 decision concerning the arroyo toad, a California species that was not, in Roberts's view, covered by the Endangered Species Act. But by that time, there was only one truly hapless party in the Roberts hearings, and that was Feinstein and her fellow Democrats.

What had before the hearing been billed as a great showdown--see Kennedy, Biden, Schumer, and the rest square off against Roberts!--turned out, instead, to be a flop. By the time Feinstein attempted to resurrect the hapless toad, the Democratic opposition to Roberts seemed to suffer an across-the-board collapse. The only question that remained was: Why had the predicted drama failed to materialize?

Of course part of the answer was that Roberts performed brilliantly; Democrats like Joseph Biden and Charles Schumer proclaimed him the best ever to come before the committee. But there was more to it than that, and it had to do with two fundamental Democratic miscalculations.

First, Democrats bet that their techniques of attacking Bush nominees, practiced and polished during several fights over lower appeals-court judgeships, would work against Roberts. They were wrong. Accusing Roberts of concealing his views about certain topics--Roe v. Wade and the Commerce Clause, for example--didn't work. Criticizing the Bush administration for declining to release some documents from Roberts's government service two decades ago--that didn't work, either. And neither did arguing that not enough was known about Roberts for senators to cast an informed vote.

The Democrats' strategy was understandable; after all, the tactics had worked--at least in the short run--against some other Bush nominees.

Take Miguel Estrada, the Washington legal star who, like Roberts, was nominated in 2001 for a seat on the U.S. Court of Appeals for the District of Columbia. Estrada was the recipient of extravagant praise on the right, which in turn raised suspicions on the left that he was being groomed to be the next Supreme Court nominee. Democrats, then in control of the Senate alter the Jeffords defection, resolved to stop him.

Party leaders settled on a strategy to claim that Estrada, who, like many previous nominees of both parties, had never served on the bench, was a "stealth nominee." Speaking to The Nation magazine, Senator Schumer said Estrada was "like a stealth missile--with a nose cone--coming out of the right wing's deepest silo." No one could ever figure out the part about a nose cone, but the general idea was clear enough.

Later, Democrats demanded the release of papers written by Estrada when he worked in the Justice Department's Solicitor General's Office. When the Bush administration declined, Democrats had another issue (even though the administration's decision was supported by every living former solicitor general.) And then, at the conclusion of the hearings, Democrats said that they just didn't know enough about Estrada to vote for him. It was enough to unify Democrats against the nomination, which was killed in committee on a straight party-line vote.

When Estrada's name was resubmitted after Republicans regained control of the Senate in November 2002, minority Democrats filibustered, citing all their old objections. In the end, Estrada, frustrated by the process, withdrew his name from consideration. Democrats had won.

To a remarkable degree, the Democratic leadership took a similar approach to Roberts. The reason it failed was simple: With Roberts, people were watching.

"The politics of a nomination to a lower federal court are different in kind, not just in degree, from the politics of a Supreme Court nomination," says Bradford Berenson, a former associate White House counsel for President Bush. "That is in large part because the national press, and the public generally, pay attention to Supreme Court nominations in a way that they don't do to lower courts."

In the appeals-court battles, the only people who are watching are the activists on either side. Things get rough, but there is no real political price to be paid. (Does anyone remember when some Democrats accused the Honduran-born Estrada of not being Hispanic enough?) "Tactics that would be obviously unsavory if examined objectively by the media and the public can be gotten away with at the lower court level," says Berenson.

Not so with a high-profile Supreme Court fight.

The second fundamental miscalculation made by Democrats was their failure to recognize that the so-called "Gang of 14" agreement had greatly weakened their hand in confirmation fights. Last May's deal, in which seven Republican senators agreed not to support the "nuclear option" to break Democratic filibusters in exchange for the word of seven Democratic senators that they would not support filibusters except under "extraordinary circumstances," effectively doomed the chance of a Supreme Court filibuster. Although Democrats could still try to block a Supreme Court nomination, enough Republican signers of the agreement made it clear that if that were to happen, they would support a move to break the filibuster. And that would be that.

So Democrats find themselves in a galling position. To judge by the polls, George W. Bush is weaker than he has ever been--setbacks in Iraq, $3-a-gallon gas, and the mess after Hurricane Katrina will do that to a president--yet he is rolling over the opposition party when it comes to the Supreme Court. "The president is leaving his mark and shaping the Court in a fundamental way," says one administration aide. "That's going to be a legacy of generations."

So what do Democrats do now? The first big decision is how to vote on Roberts when the nomination goes to the full Senate. Will moderates--and presidential hopefuls like Hillary Rodham Clinton--vote for him? The White House will be watching closely, knowing that another Court confirmation is just around the corner. "If they can't vote for Roberts, then they're just not capable of voting for a Republican nominee," says another administration source. "If you go into the second nomination, then you don't have to have any pretense that there will be anything other than a party-line vote in the committee, and a 55 vote in the Senate."

And that, of course, is the bottom line. Republicans have those 55 votes, they control the Judiciary Committee, and they have the power--and resolve--to stop a Democratic filibuster. For his part, the president has the responsibility to send the best possible nominee. If he does that, no matter what the polls say, no matter how much a gallon of gas costs, he'll win--and there's not much Democrats can do about it.