MR. TIM RUSSERT: Our issues this Sunday...
PRES. GEORGE W. BUSH: And I'm nominating Harriet Ellen Miers.
MR. RUSSERT: ...the president nominates his own counsel to the Supreme Court. Why have so many conservatives spoken out against her? With us, leading the charge against the nomination, former presidential candidate and conservative commentator Pat Buchanan. Staunchly in favor of the nomination, Dr. Richard Land of the Southern Baptist Convention. Land and Buchanan square off.
And in our political roundtable, what will the Miers nomination, the Tom DeLay indictment, the Bill Frist investigation and the Karl Rove grand jury testimony mean for George W. Bush's second term? Insights and analysis from David Broder of The Washington Post, Ron Brownstein of the Los Angeles Times, E.J. Dionne The Washington Post and Kate O'Beirne of the National Review.
And in our MEET THE PRESS Minute...
PRES. BUSH: I know her well enough to say that she's not going to change, that 20 years from now, she'll be same person with the same philosophy that she is today.
MR. RUSSERT: Well, that's not always the case. Exhibit A: former Supreme Court Justice Tom Clark explains how sitting on the Court can change one's outlook right here on MEET THE PRESS, April 19, 1970.
(Videotape, April 19, 1970):
JUSTICE TOM CLARK: Something behind your chair you notice sort of nudges you now and then.
MR. RUSSERT: But, first, why is the conservative political community so divided over President Bush's nomination of Harriet Miers to the Supreme Court? With us, two prominent conservatives with very different views.
Dr. Richard Land, Mr. Pat Buchanan, welcome both.
MR. PAT BUCHANAN: Thank you, Tim.
MR. RUSSERT: Pat Buchanan, George W. Bush is a conservative. He nominated Harriet Miers, a conservative to the Supreme Court. You're a conservative. Why don't you support her?
MR. BUCHANAN: Tim, Ms. Miers' qualifications for the Supreme Court are utterly non-existent. She has not only not ruled or written on any of the great controversies of our time on religion or faith, morality. She has shown no interest in them in 40 years. This is a faith-based initiative. The president of the United States is saying, "Trust me." And when you have the decisive vote on the United States Supreme Court, that is not enough.
We've had five nominees. I could go down the list of them, the last of them being Souter, where conservatives have trusted presidents of the United States. We had an outstanding bench of conservatives, of traditionalists who had the right judicial philosophy and President Bush ducked the fight.
MR. RUSSERT: Dr. Land, why do you support Ms. Miers?
DR. RICHARD LAND: Because I trust the president and this president is not those previous presidents. George W. Bush, if he's anything, is a man of his word. And if there's any issue that he's earned the trust of conservatives on, it's this issue. He has held steadfast and put up stellar nominees in the face of unprecedented opposition from the Daschle-led clack in the Senate and never backed down, never blinked, never flinched. He picked a person he's known for 15 years, and I believe he picked her because he knows her that well and he knows that she will vote the way he would want her to vote.
MR. RUSSERT: In fact, there was a conference call on Thursday, originated by the White House, someone who claims to have been on the call has shared notes of that with the People for the American Way who've now put it on their Web site. And it has under Dr. Richard Land, you say, "I am from Texas. George W. Bush is from Texas and Harriet Miers is from Texas. And in Texas, we have two important values, courage and loyalty. If Harriet Miers didn't rule the way George W. Bush thought she would, he would see that as an act of betrayal and so would she." Is that accurate?
DR. LAND: It is. It's substantially accurate. I didn't say that those were the only two values. But those are two very important values. And if someone is disloyal, if someone betrays a trust, in Texas, they're right down there with child molesters and ax murderers. And I'm absolutely convinced this president believes absolutely in his heart, and this is not David Souter. George Bush 41 didn't know David Souter from Adam's cat until John Sununu introduced him. The president has known this woman. She's been intimately involved in the selection process for the last five years.
MR. RUSSERT: If Harriet Miers on the Court voted not to overturn Roe v. Wade, would that be a betrayal of trust?
DR. LAND: Well, that depends on the case. You know, they're supposed to interpret the Constitution. I believe that she will be open to doing if it's the right case. I think I'd give the same answer with John Roberts. We want Supreme Court justices who will understand their client is the Constitution and they're going to interpret the law; they're not going to try to write the law from the bench. And I believe, given the right case, she will vote to overturn--if it's the right case. I'm--I'll make a prediction for you. When she's confirmed, over the next five years, she and John Roberts will disagree about 1 percent of the time.
MR. RUSSERT: Do you believe that Roe v. Wade will be overturned if Roberts and Miers are both on the Court, eventually?
DR. LAND: That depends on who the next nominee is. If my arithmetic's right, even if they both voted to overturn Roe with the right case, Kennedy would be the swing vote, and I don't think Kennedy would vote to do it. It's going to have to be one additional justice.
MR. RUSSERT: Here's what's concerning to many people, and this is from E.J. Dionne's column in The Washington Post. "Rather mysteriously, [Dr. James] Dobson"--of Focus on the Family--"who was briefed on the nomination by Bush's chief lieutenant, Karl Rove, told [Fox News]: `I do know things that I am not prepared to talk about here.' He was equally cagey with The New York Times: `Some of what I know I am not at liberty to talk about.' The intrigue whetted the curiosity of Sen. Ken Salazar (D-Colo.), who said that `if the White House gives information to James Dobson, that information should be shared equally with the U.S. Senate.'"
Did anyone from the White House suggest to you that Ms. Miers has expressed a view about abortion as opposition to Roe v. Wade?
DR. LAND: No, not to me.
MR. RUSSERT: No? Nothing.
DR. LAND: No. The--and I don't know what Dr. Dobson's talking about. You'd have to ask him that question. When Karl Rove called me on Monday morning, he just told me who it was and told me the president had absolute confidence in her and gave me some of her background and some of the people that I knew in Dallas that knew her and who would vouch for her. But let me make one thing perfectly clear. I think that John Roberts' devout Catholicism and Harriet Miers' strong evangelical beliefs should be irrelevant--irrelevant--when it comes to judging cases before the Supreme Court. In politicians, in governors and senators and congressmen, it's very important, and they have a right to bring their faith convictions to bear on public policy. But when it comes to judges, they must set aside their personal convictions and rule based on the law.
MR. RUSSERT: Pat Robertson, however, said that it is important that--evangelical beyond the Court. It seems as if Republicans are saying it's now important to use religion as opposed to when Catholicism was brought up with John Roberts; conservatives said, "That's not fair game."
DR. LAND: Oh, I think whether she's an evangelical or whether John Roberts is a Catholic or whether someone is of another faith should be irrelevant when it comes to their qualifications for the Supreme Court.
MR. RUSSERT: Pat Buchanan, the National Right to Life Committee has endorsed Harriet Miers. The Associated Press wrote about her record this way: "On the issue that commands the most attention for Court nominees, Miers pressed unsuccessfully to have the American Bar Association put its policy in favor of abortion rights to a vote of the membership, showing a sensitivity, at least, to the anti-abortion movement, if not outright support of it. [Judge Nathan] Hecht said she has attended an evangelical church in Dallas, the Valley View Christian Church, for 25 years and `their position is pro-life and I'm sure her views are compatible.' Miers bought a $150 ticket to a Texas anti-abortion group's fund-raising dinner in 1989, the year she won a term on the Dallas City Council..."
We can show you that program from that dinner, Texans United for Life, Harriet Miers, Dallas City Council. She is a bronze patron supporting that right-to-life dinner. And then this: "As political activists rush to mine Supreme Court nominee Harriet Miers' slender public record, a former campaign manager says she opposed abortion rights while running for Dallas City Council in 1989. `She is on the extreme end of the anti-choice movement,' said Lorlee Bartos, who managed Ms. Miers' first and only political campaign and said they discussed abortion once during the race. ... Ms. Bartos said Ms. Miers was supportive of abortion rights in her youth. She said Ms. Miers then underwent `a born-again, profound experience' that caused her to oppose abortion."
Isn't that good enough for you?
MR. BUCHANAN: Listen, there's a possibility she would vote to overturn Roe v. Wade. But what we've heard here, Tim, is "trust, believe." Why should we take this risk? Anti-communism and the Supreme Court are the great causes of conservatism in my lifetime. Ronald Reagan led us to victory in the Cold War. We were on the precipice of victory in the battle to return the Supreme Court to constitutionalism. And the president of the United States picks a woman with no known judicial philosophy who has never taken a stand on any of these great questions, who has never written or said anything about Supreme Court rulings, and we have been told to take it on faith.
At the same time, we have half a dozen nominees. You've got Luttig, you've got Priscilla Owens, Janice Rogers Brown, Alito, countless others we've been preparing, if you will, and grooming, who have taken heat, who have taken abuse for their beliefs and convictions, who are as certain in their judicial philosophy as Robert Bork was, and then we are handed a tabula rasa, a blank slate whose commendation, according to White House briefers, is she's never taken a stand. This White House has ducked the fight. It has backed away from a fight. The president has recoiled from greatness. He has retreated from Reaganism into the old politics of compromise and consensus on what for us was the greatest issue of his second term. I think, in a minor matter, he has probably risked his legacy. But more important, he has risked what some of us have fought for for 40 years since I was with Richard Nixon.
MR. RUSSERT: On Tuesday, the president had a a news conference and Kelly O'Donnell of NBC kept asking him whether he'd ever talked to Harriet Miers about abortion and here's part of that discussion.
PRES. BUSH: In my interviews with any judge, I never ask their personal opinion on the subject of abortion.
MS. KELLY O'DONNELL: Even in your friendship with her, you've never discussed it?
PRES. BUSH: Not to my recollection have I ever sat down with her. What I have done is understand the type of person she is and the type of judge she will be.
MR. RUSSERT: Now, she was deputy chief of staff during the entire partial-birth abortion discussion, debate, when the president signed the legislation. Could it be the president never talked about abortion with Harriet Miers even during that debate and discussion in the Oval Office?
DR. LAND: You'd have to ask the president that question. I mean, you know, the president says that he's never asked her about those issues, and I take his word for it, to the best of his recollection. But I will say this, and I want to reiterate this, I have checked this with my White House sources. This woman was very much involved, intimately involved, in the vetting process for the stellar list of nominees the president has put forward, again and again and again, put forward nominees that are strict constructionists, original intent jurists, and never backed away even in the face of an unprecedented filibuster under Daschle and Leahy. He never backed down. And, you know, the idea that George W. Bush shies away from a fight, I don't think so.
MR. RUSSERT: Patrick Buchanan, the president's saying he never discussed abortion with Harriet Miers.
MR. BUCHANAN: I find that--well, look, I'm not going to challenge the president's word. But look, I mean, I still don't understand why, when you have someone as solid as you have, you would choose someone with a complete blank slate. The president said this the most qualified person to serve on the Supreme Court. Why then was she passed over for counsel? Why was she just a staff secretary?
Tim, on abortion, I am not sure the president the United States wants to see Roe v. Wade overturned. His wife does not, his mother does not. He refuses to say whether he wants to say whether he wants to see Roe v. Wade overturned. There are a number of Republicans, moderate Republicans, who say, "Well this would be a political disaster." I'm not sure the president of the United States wants the Supreme Court to overturn Roe v. Wade.
MR. RUSSERT: What do you...
MR. BUCHANAN: And the president ought to answer that question.
DR. LAND: I am. I am. I'm absolutely certain.
MR. RUSSERT: Has he ever told you that?
DR. LAND: No. But I...
MR. RUSSERT: How do you know?
DR. LAND: I know how he feels about abortion. I've talked to him about it. I've seen the look in his eyes. I've seen the anguish in his face, the pain in his heart. This, for him, is not just a moral issue. It is a deep issue of conviction. And he wants to see this decision returned to the people of the United States. Let's do understand now, if Roe v....
MR. RUSSERT: This is very important. Then in your mind, Doctor, he would be disappointed if Harriet Miers did not vote that way on the Supreme Court?
DR. LAND: Given the right case, yes. Given the right case, given the--you know let's do understand it has been the law of the land since 1973. But so had Plessy v. Ferguson for 58 years before Brown v. the Board of Education.
MR. RUSSERT: I want to talk about some of the conservatives in this country and some of the things they've said. Here's Rush Limbaugh. "This is a pick that was made from weakness."
Peggy Noonan, who wrote speeches for Ronald Reagan and George Herbert Walker Bush: "...the Miers pick was another administration misstep. The president misread the field, the players, their mood and attitude. He called the play, they looked up from the huddle and balked. And debated. And dissed. Momentum was lost. The quarterback looked foolish."
Trent Lott, former majority leader: "Is she qualified for her experience? Is she the most qualified? Clearly, the answer to that is no. There are a lot more people--men, women and minorities--that are more qualified in my opinion by their experience than she is."
Bill Kristol of The Weekly Standard: "I'm disappointed, depressed, demoralized."
Charles Krauthammer: "Withdraw This Nominee. If Harriet Miers were not a crony of the president of the United States, her nomination to the Supreme Court would be a joke, as it would have occurred to no one else to nominate her."
And finally, George Will: "It is important that Miers not be confirmed unless in her 61st year, she suddenly and unexpectedly is found to have hitherto undisclosed interests and talents pertinent to the Court's role. Otherwise the sound principle of substantial deference to a president's choice of judicial nominees will dissolve into a rationalization for senatorial abdication of the duty to hold presidents to some standards of seriousness that will prevent them from reducing the Supreme Court to a private plaything useful for fulfilling whims on behalf of friends."
Those are all conservatives, all supporters, believers of George W. Bush. What happened?
DR. LAND: Well, all I can say is that it has the scent and whiff of elitism about it. You know, you don't have to go--I'm a graduate of Princeton and I just want to say, you don't have to go to an Ivy League school to be on the Supreme Court. I think this woman is a woman of enormous accomplishment. I think she's going to do an excellent job in the hearings. People who know her, that I knew in Dallas when I lived there, say she's one of the most impressive women they know. She overcame a great deal of sexual prejudice to get to where she's gotten to in life. She has the president's absolute confidence.
And, you know, I think we need to remember here that President George W. Bush selected a person who he knows better than anyone else in the legal community in the United States with the possible exception of Alberto Gonzales. And I'm absolutely convinced he is convinced--absolutely convinced how she will rule on the Court. She'll be a strict constructionist, original intent. And I'll go back to my prediction: Five years from now, there'll be less than a 1 percent disagreement rate between Roberts and Miers.
MR. RUSSERT: According to The Washington Post this morning, Senator Pat Leahy asked Ms. Miers who was her favorite Supreme Court justice. And she answered Warren. And he said, "Earl Warren?" And she said, "No, Warren Burger." Warren Burger of the Burger Court, Burger who voted, as you know, in support of Roe v. Wade. Does that trouble you?
DR. LAND: It does. But I--once again, I don't know Harriet Miers. I know George W. Bush. And I'm trusting George W. Bush. He understands--we all understand--his legacy depends on this nomination.
MR. RUSSERT: Pat Buchanan, one thing that no one's ever called you is an elitist.
MR. BUCHANAN: That's right.
MR. RUSSERT: Kay Bailey Hutchison said this: "Five of the nine justices graduated from Harvard University, another one from Yale, another one from Columbia. I don't think you have to be from an Ivy League institution to be qualified for the Supreme Court."
MR. BUCHANAN: You don't have to be. Priscilla Owens from Baylor. Look, the president says, "Trust me." Ronald Reagan said, "Trust but verify." What this shows on the part of the president, in my judgment, is a lack of seriousness. We have 55 Republican senators. You've got two or three Democrats who almost have to vote for a Luddite. You've got the House and the Senate, you've got the president. We are at this point of battle where we have some of the finest jurists in the country who have stood the test, who've shown the moral courage of a Thomas. And he passes them all over for his personal attorney, who has a complete tabula rasa. That suggests to me either that Bush has contempt for the conservative community, he doesn't care about their issues or he does not want the fight.
Politically, Tim, why would a president go along with Harry Reid to avoid a fight and ignite the kind of fight he's got with his own political base? Again, it suggests he does not understand the gravity of the issues that are being decided.
MR. RUSSERT: Is there a concern in the White House because of the war in Iraq, because of the fallout from Hurricane Katrina, because of the Tom DeLay indictment, the investigation of Bill Frist...
MR. BUCHANAN: Right.
MR. RUSSERT: ...the CIA leak case, the president didn't want another political fight?
MR. BUCHANAN: That is certainly speculation and surmise, and it may be true. Tim, but that shows a lack of understanding of politics. What you do in a time like this is pick a battleground on philosophy and principle and rally your troops and create political capital. This was a golden teaching opportunity, a golden political opportunity, and a golden opportunity in terms of the Supreme Court, and the president blew it.
MR. RUSSERT: Dr. Land, in all honesty, isn't there somebody else in the conservative judicial circles that you would feel is more qualified, more schooled in constitutional law, more thought-out and has written on these subjects than Harriet Miers?
DR. LAND: Possibly. But I'm not the president of the United States. And that's the president's decision in terms of nomination. And I think the president has picked the person that he believes will most reflect his judicial philosophy and is least likely to be--to be influenced by the Eastern establishment, by The New York Times opinion of them over the next 20 years. I'm absolutely convinced that the president--you know, he's the one that's been elected by the American people to make this choice. He has made it and, as I've said before, given his track record over the last four and a half years, he deserves better from the conservative community than he's getting in terms of trust.
MR. RUSSERT: But he has said he knows for certain that Harriet Miers will not change in the next 20 years. Twenty years ago, she was a Roman Catholic and she was a Democrat. She's now an evangelical Christian and a Republican. So she has the capacity to change.
DR. LAND: Yes, she--that was a long time ago. She's now a mature woman. He's worked with her on virtually a daily basis. She was intimately involved over the last four and half years in all of the vetting of the John Roberts and the Michael Luttigs and the Priscilla Owens and the Janice Rogers Browns and part of the process that sent them back to the Senate for confirmation after they were filibustered.
MR. RUSSERT: Pat Buchanan, a long time ago, 1990, you were on a program called "Crossfire." You were talking about David Souter. And this is what you said. "I think you can look at that guy and you know we're A-OK."
MR. BUCHANAN: I initially wrote something against Souter. I got a call from the White House, someone as high almost as the chief of staff, and I was told this is fine. This is a good choice. This is a decision--you can rely upon it. We did and look what happened to us. Nope, this is--look, the president of the United States--and I agree with Dr. Land, who's made some outstanding choices to the bench and Roberts was an outstanding choice. This does not remotely measure up when you have someone who has not even spoken a word or taken a stand in 40 years? Tim, on all these great constitutional questions that have roiled us, sometimes party loyalty asks too much.
MR. RUSSERT: Should he withdraw the nomination?
MR. BUCHANAN: I would like to see the nomination withdrawn. If I were in the Senate today, I would vote against it. I think that she has to make the case on the Judiciary Committee, to the country, that she has the strength of character and the judicial philosophy both to stand up to the kind of heat she will get and only then would I vote to support her.
MR. RUSSERT: Should she say before that committee, "I will overturn Roe v. Wade because it was not correctly decided"?
MR. BUCHANAN: I think she should not necessarily say she will overturn Roe v. Wade. She should stand up and say, "In my judgment Roe v. Wade was a judicial abomination. It's been settled law for 33 years. I will take a look at cases that come before the Supreme Court, but I cannot tell you how I will rule on it, but it was an abomination."
MR. RUSSERT: Should she say that?
DR. LAND: That depends on whether it would then require her to recuse herself. She shouldn't say anything in the hearings that would require her to recuse herself when cases come before the Court that deal with Roe.
MR. RUSSERT: Will she be confirmed?
DR. LAND: I believe she will be.
MR. RUSSERT: Will she be confirmed?
MR. BUCHANAN: My guess is she will not be confirmed and she may be withdrawn.
MR. RUSSERT: To be continued. Pat Buchanan, Richard Land, thank you very much.
Coming next, David Broder, Ron Brownstein, E.J. Dionne and Kate O'Beirne. Then our MEET THE PRESS Minute. A Supreme Court justice from Texas talks about being on that Court and even changing his opinion coming up on MEET THE PRESS.
MR. RUSSERT: Our roundtable takes on the Miers nomination, Tom DeLay, Karl Rove, homeland security and more, after this station break.
MR. RUSSERT: And we are back. Welcome all.
David Broder, you just heard Pat Buchanan say, "Withdraw the nomination." The Weekly Standard, the conservative magazine edited by Bill Kristol, comes out today: "Withdraw the nomination." What's happening?
MR. DAVID BRODER: Well, you heard what's happening. He's stirred up a hornet's nest. I think there are two things that strike me. One, the burden really is on Ms. Miers now to prove her qualifications. She has one essential credential, namely the trust of the president of the United States, and that's important, despite what Pat Buchanan said. He is the president of the United States, and his judgment on a choice for Supreme Court deserves some deference. But she has to establish her own credentials. The other thing--and here I find myself in rare agreement with Pat Buchanan--I think it does reveal, in fact, that the president's priorities are not the same as some of the conservative constituents. I do not think that he has a high-priority goal of reversing Roe v. Wade. And the fact that she is unknown on that subject is not, in his eyes, a liability.
MR. RUSSERT: Kate O'Beirne, you know the conservative movement. What's going on this Sunday morning?
MS. KATE O'BEIRNE: Well, I think what conservatives are uncomfortably--many conservatives are uncomfortably recognizing is that maybe George Bush doesn't have the strength of their convictions. It does appear that he's ducked a fight, a fight conservatives feel they could win with a candidate with a paper trail who represents conservative constitutional principles. When Bill Clinton had an opening, he nominated Ruth Bader Ginsburg. She had a 25-year record of expressing her views.
MR. RUSSERT: General counsel to the ACLU.
MS. O'BEIRNE: General counsel to the ACLU. She, of course, had been a judge. She had very well- thought-out constitutional jurisprudence. And that was no bar to be nominated by Bill Clinton. Stephen Breyer was not a stealth candidate. There is a deep bench of candidates. It's a co-ed bench, who have both the qualifications, by stint of experience, but also tell us something about their views on constitutional issues. And that's a fight, apparently, George Bush didn't want, and it's a fight conservatives do want. I think the public could benefit from such a big debate over constitutional principles.
MR. RON BROWNSTEIN: Kate, can I offer a competing explanation? I think the conventional wisdom, as you've expressed and Pat Buchanan, who made a lot of very persuasive arguments, is that President Bush did this because he was ducking a fight. I think there's an argument that maybe the problem here, why he's gotten into this difficulty, was too much confidence, not too little. I mean, the president had to know, and people in the White House had to tell him, that only twice in the past century has a president been denied a Supreme Court nominee while his own party held the Senate. And he would also have to know that even his most controversial Appellate Court nominees, no more than three Republicans voted against any of them in the Senate.
So I think, actually, what may have driven this decision more was a sense that the Republican Party had to to support whoever he chose and that he could pick someone on the criteria that was most important to him, which is personal loyalty, trust, personal knowledge, and really put very little, virtually no, weight on the criteria that was most important to the conservative movement, which is exactly what you just described: a paper trail of having grappled with these constitutional issues.
MS. O'BEIRNE: Well, I do think it matters that Harry Reid gave a thumbs-up on Harriet Miers. And don't forget, Ron, that the specter of a filibuster still looms. They do face the possible necessity of needing 60 votes.
MR. BROWNSTEIN: But don't you think John Roberts proved that it's tougher than the Democrats and the liberal groups expected, to ignite one of these nominations into a full-scale firestorm, that Bork in '87 and Clarence Thomas in '91 maybe were the exception than the rule. And that there is an instinct toward deference in both the Senate and the country that we saw expressed in the Roberts nomination.
MR. RUSSERT: Let me talk about the hearings a little because everyone agrees how important it is, David's point. And I was quite taken by Dan Coats, the former senator who's the White House point man on this discussion. And he said this yesterday: "If great intellectual powerhouse is a qualification to be a member of the Court and represent the American people and the wishes of the American people, and to interpret the Constitution, then I think we have a Court so skewed on the intellectual side that we may not be getting representation of America as a whole. [Sen. Arlen] Specter"--as we all know, chairman of the Judiciary Committee--"asked about that remark, laughed and wondered if it was `another Hruska quote,' a reference to an often-quoted comment by the late Roman Hruska, Republican senator from Nebraska, defending G. Harrold Carswell, a Supreme Court nominee rejected by the Senate under President Nixon. `Even if he is mediocre,' Hruska said, `there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance?'"
Isn't that lowering expectations below the level that the White House should be?
MR. E.J. DIONNE: Well, you know, President Bush has always benefited from low expectations, so maybe they are playing that strategy. I mean, it's an absurd quote. It's one of those quotes that will live, as Senator Specter said, as the equivalent of the Roman Hruska quote. What's really odd here is that this nomination has forced conservatives to eat so many words they've spoken earlier. The conservatives said with John Roberts, it's not fair to bring up his religion, as you pointed out earlier. Suddenly the conservatives have to pull out Miers' evangelical faith to persuade other conservatives that she's really a conservative. Conservatives said, "You really can't ask somebody at a hearing, a president's nominee, to explain their views." Conservatives are now desperate to have Harriet Miers explain her views in these hearings. So that I think one of the reasons you're hearing so little from Democrats right now is that they are enjoying sitting back watching this fight so much that you just put on television earlier today.
MR. RUSSERT: The idea of not being a sitting judge, not coming from an elitist academic institution, Maria Bartiromo of CNBC sat down with Antonin Scalia last night and asked him about having a non- judge on the Supreme Court. Here's his answer.
JUSTICE ANTONIN SCALIA: Well, I think it's a good thing to have people with all sorts of backgrounds. There is now nobody with that background after the death of the previous chief. And the reason that's happened, I think, is the nomination and confirmation process has become so controversial, so politicized, that I think a president does not want to give the opposition an easy--you know, an easy excuse that, "Well, this person has no judicial experience." And I don't think that's a good thing. I think the Byron Whites, the Louis Powells and the Bill Rehnquists have contributed to the Court even though they didn't sit on a lower federal court.
MR. RUSSERT: That full interview will be on CNBC tomorrow night.
David Broder, what do you think that of?
MR. BRODER: Well, I think the justice is right. It does help to have people who have some practical world experience, but there also ought to be the kind of intellect and familiarity with constitutional issues that enables that person to take a full--carry the weight of the job. And it's the latter question that I think is yet to be determined when it comes to Ms. Miers.
MR. RUSSERT: Do you believe that the Judiciary Committee hearings are going to be rough sessions and the people--the senators will try to delve into Ms. Miers' grasp of constitutional law?
MR. BRODER: I certainly hope so.
MS. O'BEIRNE: The lack of judicial experience is not fundamentally important here. I agree with Justice Scalia. Look at Robert Bork in 1987. Robert Bork, of course, remains a hero to the conservatives. Nobody knew his personal views on any issues. Nobody asked his personal views on any issues because he had well-stated, well-understood views on the Constitution. Because Harriet Miers doesn't have those, surrogates of the White House are pointing to her personal opinions, which she shouldn't be bringing onto the Court, and to the fact that she's an evangelical Christian, which some supporters of the president find persuasive. We shouldn't care about what her personal creed is. We want her to be faithful to the Constitution. But they can't make those arguments on her behalf because she's expressed over the years no interest in or opinions on any of these constitutional issues.
MR. DIONNE: The problem, Tim, is that here you have somebody, she could be Souter. She could also be Scalia. We have no idea. So that both liberals and conservative are at a loss to figure out, even to pin her within that very broad spectrum. And I don't think the issue is that she wasn't a judge. I mean, I've supported in the past appointing certain politicians--Orrin Hatch, I might oppose him because of his views, but would be a perfectly plausible candidate for the Court. It's about this issue of how deeply inside his own inner circle did Bush have to reach to appoint Harriet Miers? At a moment when everybody was making cronyism, even beginning with conservatives, an issue, this created a new problem for the president.
MR. BROWNSTEIN: This is a fascinating decision in terms of being a window on President Bush and the way he operates. I think one of the things he's made clear in five years is that he believes leadership is determining what you think is right and going out and doing it, much more than trying to build consensus. In some ways, I think he views trying to build consensus as diluting your own personal view of what the right thing is to do, and that's usually created polarization between him and Democrats. But here, conservatives are being exposed to this. I mean, there is literally no one else in the leadership of the conservative movement who would have made this decision. It was a decision with a constituency of one. He believes in it, and he did not feel the obligation to go out and try to build a consensus for it, pick someone who would establish a consensus even on his own side, and this is really the way that Bush, I think, in a broader sense, governs.
MR. RUSSERT: Kate O'Beirne, when Bill Clinton was president, he said he would not put anyone on the Court who would overturn Roe v. Wade, and said it publicly. Why doesn't a conservative president say, "I will only put people on the Court who will overturn Roe v. Wade," if that's what they believe?
MS. O'BEIRNE: Well, there's a resistance, and I think it's appropriate, to a litmus test with respect to a particular view on a particular case. I do think that's inappropriate. Now, many politicians have taken similar vows Bill Clinton's when it comes to voting for Supreme Court justices, but I wouldn't expect a conservative president to endorse any kind of a litmus test like that. But I think it's awfully awkward for his nominee that one of the fundamental--the fundamental case on her behalf is, "She will vote the way I would want her to on the Court." I don't see that as striking a great blow for women's equality, given that John Roberts' qualifications and views spoke for themselves, and now, I guess, the expectation is she goes on the Court and channels George Bush's views on the Constitution.
MR. RUSSERT: How...
MR. DIONNE: I think that's a good point. I just want to give a slightly more skeptical answer to your question which is, a conservative president doesn't want to say, "I'll only appoint judges that will overturn Roe," because that would lose him votes in the middle that he desperately needed. President Bush did rather well among pro-choice voters in the last election.
MR. BRODER: Let me say one word in defense of the president. He has been absolutely consistent from the time he began running for the Republican nomination in saying no litmus test on a single issue for judges. He was under great pressure when he was a not can--seeking the nomination...
MR. BROWNSTEIN: Sure, yeah.
MR. BRODER: ...to make that pledge, and he refused to do it then. He continues to refuse to do it. Whether you agree with him or not, have you to say he has been absolutely consistent in that position.
MR. BROWNSTEIN: But, you know, an undercurrent here, I think, in the conservative distress is the fact that he has now chosen two nominees, in John Roberts and then Harriet Miers much more so, who don't have a paper trail. And the question is: What is the message that he is sending to all of the conservatives out there in the law schools and on the courts? Are you basically saying that if you go out and you pursue the vision of the Constitution that we want you to, you will never get promoted to the top job? I quoted two conservatives this week who said that the best thing that ever happened to John Roberts was that he was not confirmed...
MR. DIONNE: That's right.
MR. BROWNSTEIN: ...by the Democratic Senate in 1992 when George H.W. Bush nominated him for the appellate court, because he would have had 12 years of a record and might have been too hot to handle for this president.
MR. RUSSERT: We have the Miers nomination. We have the constitutional vote in Iraq next week. We have the fallout from Hurricane Katrina. We have, on our screen here, the indictment of Tom DeLay, the SEC investigation in the Bill Frist stock deal. Karl Rove going back to the grand jury in the CIA leak case, probably for the fourth time. Kate O'Beirne, how concerned are Republicans about the 2006 mid-term elections?
MS. O'BEIRNE: I think there is some concern on the Hill. There would have to be. Given what off- year election in a president's second term look like anyway, all the more puzzling that the White House didn't use the next Supreme Court opening as an opportunity to rally the conservative base, bring his supporters closer to them, give them something like this they could look forward to to fight over. But I think if you talk to House Republicans who won't be directly involved in the Supreme Court nominee, they are nervous that it could have a fallout with respect to conservative enthusiasm next fall that could affect them.
MR. RUSSERT: David?
MR. BRODER: It's a very bad time for the Republicans and it's part of a pattern, Tim. We are in a second term, and second terms tend to go downhill. This one is going perhaps faster than certainly I expected it to unravel, but it looks like a classic second-term unraveling to me.
MR. RUSSERT: Ron.
MR. BROWNSTEIN: You know, when you look through history, you really wonder why they spend so much money and time trying to get re-elected, because there's a lot more unhappy stories. I mean, 1600 Pennsylvania Avenue is a dangerous place and bad things happen the longer you stay there. I think if you look at the numbers objectively, by any stretch, the approval rating for the president--really near the lowest ebb that it's been of his presidency. Approval rating for Congress dipped into the low 30s after Terri Schiavo earlier this year, never recovered. Enormous percentage, 60 percent or more of the country saying, we're on the wrong track. These are numbers that, objectively, if you look at, should be bad for the party in power.
The key question, I think, for Democrats, though, in both the House and the Senate, because of where the battlefield is: Is the discontent enough to wash into what had been the red states:? Now, Democrats can win Senate seats, perhaps, in Rhode Island and Pennsylvania, states that voted for Kerry and Gore, but they're not going to regain the Senate unless they also start winning in places like Missouri and Montana and Ohio and Tennessee, and the same thing is true in the House. The big question over the next year is: Does this discontent last? And if it does, is it powerful enough to erode the Republican strength in those red states and red districts? Because without that, the Democrats may make some gains but they're not really going to have a breakthrough I think.
MR. RUSSERT: E.J.
MR. DIONNE: Well, in fact, in the House, the Republicans are only defending I believe it's 18 seats that John Kerry carried, whereas Democrats are defending 42. So they do need to make inroads. But I do think this slide, as David suggested, is steep enough that it could begin to set off...
MR. BROWNSTEIN: Yeah.
MR. DIONNE: ...that kind of reaction. And I think it's really particularly severe because we're at war. I mean, we have a war in Iraq. The president, in effect, gambled his presidency. If you supported the war, you say that's courageous. If you're against the war, you say it's a mistake. But he gambled his presidency on this war, and so all these other things domestically are happening in a very, very difficult context, and the war is partly in the president's control, but a lot of it is out of his control.
MR. BROWNSTEIN: Let me say one thing. And Kate's point a moment ago, I think, is especially important. You know, both in 2002 and 2004, the core of the political strategy of this White House was increasing the turnout among the conservative base. They fundamentally changed the electorate in 2004. There were as many Republicans who voted as Democrats, according to the exit poll; the first time ever. Now, right now he is facing a collapse in the middle. In both Gallup and ABC-Washington Post in the last month, his disapproval rating among Independents was higher than Bill Clinton ever reached, and he was a pretty controversial president. So if they have anything that is going to depress that turnout among the base, they are looking at a very bad situation because they clearly need a lot of those social conservative and economic conservative voters to come out because right now they are in a very weak position in the middle.
MR. RUSSERT: To show you...
MR. DIONNE: And his approval rating among Republicans is in the low 80s or high 70s. That sounds good; it's not good. He needs a much bigger number in his own party.
MR. RUSSERT: To show you how closely they're watching this. Last week, we talked about a published report. The 3rd District of Louisiana, Craig Romero, the Republican candidate, had a chart saying that these parishes because of Katrina may not come back, and this would change the vote. Democrats pounced, saying, "Oh, he was trying to write off voters from Katrina." Romero called and said, "No, no, no. It would be more Republicans vote for me," and very much wanted that on the record. That's how closely these races are being watched.
MS. O'BEIRNE: Yeah. I think it has to be said the odds favor Republicans holding both the Senate and the House next fall, but there have been conservative misgivings about other parts of the president's domestic agenda. Much of it was overlooked because of the leadership in the war on terror and the Court. And so with an unpopular nominee on the part of many conservatives to the Court, it brings to the fore the complaints about spending levels and prescription drug benefit and the education plan, which had been roiling there anyway, but conservatives had put it aside. So the Court was so fundamental. It really remains a mystery why the White House and the president didn't better appreciate how this nominee might be accepted.
MR. RUSSERT: The president also chose this week to give another major speech on the war on terrorism. We had an interesting situation in New York City, David. Here was the headline: "New York and Washington Backpedal to Explain Gap in Threat Perceptions." The mayor of New York went before his city and said this on Thursday.
MAYOR MICHAEL BLOOMBERG: The FBI has recently shared with us a specific threat to our subway system. This is the first time that we have had a threat with this level of specificity. I believe we have an obligation to share information with the public as long as it doesn't jeopardize their safety. And they can make their own decisions.
MR. RUSSERT: Now, on the same day, this was the statement issued by homeland security officials: "Homeland Security officials `received information regarding a specific but noncredible threat to the New York City subway system,' said spokesman Russ Knocke. `The intelligence community has concluded this intelligence is of doubtful credibility,' he said. Knocke added that federal officials had shared information about the threat with New York officials `out of an abundance of caution.'"
The New York papers are filled with stories saying Mayor Bloomberg had a debate that night, in Thursday in Harlem, and he wanted to avoid that and throw this terrorism threat up. The mayor's people insisting this is real; it's his city, he's trying to protect it. Homeland security saying it wasn't credible. I thought the Department of Homeland Security was supposed to streamline this with a centralized command and control.
MR. BRODER: I can't judge the mayor's motivation, but the gap in communications and analysis between Washington and New York City has got to be worrisome to local officials all around the country. We are supposed to have a now unified and coordinated intelligence analysis operation in the Department of Homeland Security. If they cannot be convincing to the mayor of New York, they're not going to be convincing to other local officials, and we lose the credibility of this whole operation.
MR. RUSSERT: Ron?
MR. BROWNSTEIN: I guess I cut them a little slack on this. I think it's natural that the local officials are going to be more exercised about the possibility. They're mentioning their subway system, a specific date, and I think it's entirely understandable that they might--even if the people in Washington are saying, "Well, you know, maybe it isn't that credible," I think you would expect your mayor to be out there and be very aggressive.
MR. DIONNE: Right. I mean, Mayor Bloomberg's on the ballot in November. President Bush isn't. I can't believe that might not have something to do with it. If I were a mayor, I'd sure want to err on the side of caution the way Bloomberg did.
MR. RUSSERT: But shouldn't we be speaking with one voice, Kate?
MS. O'BEIRNE: Well, you can have at the federal level weighing whether or not intelligence is credible. You can have a certain detachment. I think the federal government's always going to have to share with local officials who are involved what intelligence they're hearing, and they can share their opinion that it is of doubtful credibility, but I think local officials are going to respond with an excess of caution, and I think an excess of caution is probably appropriate.
MR. RUSSERT: To be continued. Kate O'Beirne, E.J. Dionne, Ron Brownstein, David Broder, thank you all.
We'll be right back with our MEET THE PRESS Minute. This is interesting: A retired Supreme Court justice, Tom Clark from Texas, reflects on the decision-making that one goes through while on the Court and changes they may undergo, right after this.
MR. RUSSERT: And we are back with our MEET THE PRESS Minute.
In 1949, President Harry Truman nominated loyal friend and Attorney General Tom Clark to the Supreme Court. The appointment was met with some degree of criticism. The Washington Post editorialized: "It is highly improbable that [Clark's] name would have appeared on any list of distinguished jurists. ... Mr. Truman needs to be reminded that a man's good fellowship has nothing to do with his qualification to sit on our highest tribunal ..."
Clark was confirmed, but their good fellowship ended when Justice Clark ruled against Truman, saying he had overreached his presidential powers by seizing control of the steel industry in 1952. Later Harry Truman cited the Clark nomination as the biggest mistake of his presidency.
Clark appeared here, along with his son, Ramsey, in April 1970 and explained how sitting on the Court can change one's outlook.
(Videotape, April 19, 1070):
MR. LAWRENCE E. SPIVAK: Our guest today on MEET THE PRESS are Associate Justice of the Supreme Court Tom Clark, retired, and former attorney general of the United States Ramsey Clark. They are the only father and son in our history to have held the office of attorney general.
MR. FRED GRAHAM (New York Time): Justice Clark, early in the Truman administration when you were attorney general, you persuaded President Truman to expand the government's use of wiretapping, and then later one of your last opinions was to crackdown on the New York wiretapping law. Did your opinion of wiretapping change over the years?
JUSTICE CLARK: My opinion changed quite often on the Court. And, you know, many of the decisions I made when I was attorney general, I was attorney general. But when I got on the Court, why, there's a different viewpoint. There's something behind your chair, you know, that sort of nudges you now and then. And so you get a different view of a situation. I'm a justice then, so I tried to decide it as a justice.
MR. RUSSERT: A historical note, how it came to be that Justice Tom Clark retired from the Supreme Court at the relatively young age of 67. His departure was masterfully engineered by President Lyndon Baines Johnson himself. L.B.J. wanted the chance to appoint the first African-American to the Court, namely Thurgood Marshall. But there were no Court openings, so he cleverly set in motion a scheme to create one. You can hear L.B.J. laying the groundwork in this telephone conversation with Justice Clark's son, Ramsey, on January 25, 1967.
(Audiotape, January 25, 1967):
PRES. LYNDON JOHNSON: Do you think you could be attorney general with your daddy on the Court?
MR. RAMSEY CLARK: Well, I think that--I guess other people ought to judge that, really. I know as far as I'm personally concerned, that that would not affect my judgment. I don't think it would affect Dad's judgment. I'd hate to see Dad get off the Court. I think he's at the height of his judicial power...
PRES. JOHNSON: My judgment is that if you became attorney general, he'd have to leave the Court, for no other reason than the public appearance of the old man sitting on his boy's case and you tell me that the old man can judge it fairly when his own boy's sending them up?
MR. RUSSERT: Just four weeks later, Ramsey Clark was named attorney general of the United States, and as predicted, his father, Justice Tom Clark, announced his resignation from the Supreme Court that same day. L.B.J. then nominated Thurgood Marshall to fill the Clark vacancy, becoming the nation's first black Supreme Court justice.
And we'll be right back.
MR. RUSSERT: For more information on today's guests and topics, check out the mtp Web site where you can also download the audio of today's entire program to your computer or MP3 player. The MEET THE PRESS podcast all at mtp.msnbc.com.
That's all for today. We'll be back next week. If it's Sunday, it's MEET THE PRESS.
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