U.S. Sen. Daniel K. Akaka and his challenger in the Democratic primary, U.S. Rep. Ed Case, would have split over President Bush's nominees to the Supreme Court, indicating important differences in how they approach one of the Senate's most distinctive responsibilities.

With the court likely to take up abortion, affirmative action, civil rights and privacy cases over the next several years, how Akaka and Case view the court and the Senate's role in evaluating nominees could be instructive to voters.

Akaka voted against confirming John Roberts as chief justice last September and against Samuel Alito as associate justice last January, joining other Senate liberals who thought Bush's choices were too far to the political right. Case, a moderate, said had he been in the Senate, he would have voted for Roberts but against Alito because he believes Alito's conservatism might change the court's balance.

Akaka and Case agree that legal ability and judicial temperament are critical when considering nominees for the lifelong appointment. But they differ over how much a nominee's personal opinions should match their own.

Akaka said he keeps an open mind but would likely reject nominees who oppose abortion rights or have an uneven record of defending civil rights and individual privacy.

"If some of them I feel violate civil rights and civil liberties, that would be a big thing to me," the senator said.

Case said he wants to know what a nominee thinks about abortion rights, civil rights and privacy but said no single issue would likely determine his vote.

"I don't believe in an automatic litmus-test approach on specific issues," the congressman said. "But I do believe in assessing whether a nominee generally represents the mainstream of American thought.

"I don't want to confirm somebody who is somehow at the edges."

A PARTISAN PROCESS

The Founding Fathers, who wanted a check on the powers of the president, gave the Senate the constitutional authority to advise and consent on nominations for judges, ambassadors and Cabinet secretaries. Nominees for the Supreme Court are subject to hearings before the Senate Judiciary Committee and confirmation votes by the Senate.

The confirmation process always has had a political element, but many legal scholars believe it has become more partisan in the past generation, as competing political and cultural interests try to either expand or contain the court's influence.

But despite the intensity surrounding the court, most nominees are confirmed. The Senate has rejected a dozen nominees since the court was created in 1789, while 11 others withdrew and 10 received no formal action.

The Senate rejected two nominees during the Richard Nixon administration, but over the past three decades, only one nominee, conservative Robert Bork in 1987, has been voted down. White House counsel Harriet Miers withdrew her nomination last October after questions from conservatives about her lack of experience on the bench and her connections to Bush.

Senate Republicans last year discussed changing the Senate's rules to prevent filibusters against judicial nominations but were blocked by a bipartisan group of senators — known as the "Gang of 14" — who preserved the filibuster but agreed it should only be used against judicial nominees in extraordinary circumstances. The group was mostly made up of moderates but also included Sen. Daniel K. Inouye, D-Hawai'i, and Sen. Robert Byrd, D-W.Va., who are among the Senate's most senior members and are protective of the chamber's powers and traditions.

'BEST' IS SUBJECTIVE

Aviam Soifer, dean of the University of Hawai'i-Manoa law school, said there is no agreement on the qualities that make the best Supreme Court justices, so the confirmation process is vulnerable to politics.

"I think that senators themselves are somewhat inconsistent about what's fair game and what are the right kinds of questions," he said. "On the other hand, it's not all their fault. I don't think the public is clear about that. I don't think the Constitution gives us answers to that, so that's been a changeable thing over time.

"We have not fully developed what we're looking for. We're not clear on what we want our judges to be."

William Harrison, a criminal defense attorney who serves on the litigation committee for the American Civil Liberties Union of Hawai'i, said he would like the Senate to be less partisan on judicial nominees.

"Ultimately, it should be based solely on ability, even-handedness, fairness and justice. Unfortunately, it doesn't work that way," he said. "It's basically premised upon your political views, which is really not what the Supreme Court is all about."

The court has agreed to accept abortion-rights and affirmative-action cases in its next term, and Soifer and Harrison said the court soon will weigh some of the national-security and privacy questions related to the war on terrorism, from the legal rights of terrorist suspects held by the United States to the extent the government can conduct electronic surveillance.

TWO KEY ISLAND ISSUES

Two important Hawai'i issues — the Hawaiians-first admissions policy at Kamehameha Schools and federal recognition for Native Hawaiians — also may be headed toward the high court at some point.

Case, a lawyer, said both are constitutional and that he likely would ask any nominee to explain his or her opinion on the Hawai'i issues during confirmation. He also said he would be interested in knowing whether nominees believe in the expanded right to privacy found in the Hawai'i Constitution.

The congressman said he would have "incredible reservations" about a nominee who opposed abortion or who was not vigilant about protecting against illegal search and seizure. He also would want the nominee to be strong on minority rights, given what he believes is a deliberate attempt by Congress to "ram down majority perspectives."

But Case said he wants to preserve the chemistry and balance on the court more than finding justices who share all his opinions. He said Roberts, for example, is likely to his right politically but is within the mainstream and has respect for the separation of powers among the courts, Congress and the White House.

"Just because somebody disagrees with me, even on very important issues that I feel passionately about, that's not fatal from my perspective for me voting for their nomination," he said.

Case said he thinks Akaka is much more likely to vote the party line.

"Senator Akaka votes strictly with what his Democratic Party leaders say he should do on judicial and other nominations," he said.

Akaka, a former teacher and school principal, said he makes his own judgment after listening to the Judiciary Committee hearings and reviewing a nominee's background and rulings.

Roberts, as an attorney, defended former Gov. Ben Cayetano in the 2001 case before the court that found that the Hawaiian-only voting for trustees for the state Office of Hawaiian Affairs was unconstitutional.

But the senator said he was disturbed that Roberts, as a young lawyer during the Ronald Reagan administration, wrote a memo that referred to illegal immigrants as "illegal amigos." In a separate memo, Roberts described a "so-called 'right to privacy.' " During his confirmation hearing, Roberts told senators he did believe in the right to privacy, but Akaka was still skeptical.

"These are basic and alarming to me," Akaka said.

Reach Derrick DePledge at ddepledge@honoluluadvertiser.com.