Outwitted and outclassed: the Democrats stumble on Roberts.(THE SUPREME COURT)(John 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.