THE NEXT SUPREME COURT NOMINEE
July 6, 2005

Sens. Arlen Specter, R-Pa., and Patrick Leahy, D-Vt., the chairman and ranking member of the Senate Judiciary Committee, discuss the upcoming confirmation battle over who should replace retiring Supreme Court Justice Sandra Day O'Connor.

 

Online NewsHour Special Report: Supreme Court Watch July 5, 2005: Ellen Fitzpatrick looks at the USSC Justice confirmation process and past nomination battles. July 1, 2005: Mark Shields and Ramesh Ponnuru discuss the battle over the next Supreme Court nominee. July 1, 2005: Update: Justice Sandra Day O'Connor Announces Retirement July 1, 2005: Justice Sandra Day O'Connor resigned from the Supreme Court after a 24-year term. Law analysts discuss her legacy and the view of O'Connor as the "swing" vote. June 17, 1986: Real Audio: Expert talks about Justice William Rehnquist's nomination to Chief Justice of the Supreme Court. Browse the NewsHour's coverage of the White House, Congress and: law   News for Students: Top Story: Sandra Day O'Connor, First Female Justice, Retires 7.01.05 Lesson Plan: Checks and Balances in Supreme Court Nominations     The Supreme Court of the United States Supreme Court Historical Society Sen. Patrick Leahy Sen. Arlen Specter United States Senate Committee on the Judiciary	GWEN IFILL: Filling the Supreme Court vacancy left by the impending retirement of Sandra Day O'Connor will be a test for the White House, for the interest groups and for the Senate Judiciary Committee. I spoke earlier with two senators who will be at the center of the contentious debate: Committee chairman and Pennsylvania Republican Arlen Specter of Pennsylvania, and the committee's top Democrat, Patrick Leahy of Vermont.
	Consulting with the White House
	GWEN IFILL: Senators, thank you both for joining us. We have read so much about the Supreme Court vacancy and what's going to happen next. Sen. Specter, you'll be the chairman of the Judiciary Committee, you are. Perhaps you can give us a sense of this. How pivotal a moment is this, really? SEN. ARLEN SPECTER: It's very important. Justice O'Connor was a centrist, a swing vote on many, many important cases and it's understandable that Americans would be concerned about who her replacement should be. So that -- it's a very, very important nomination. I think the president has said so, and people on all sides have said so. GWEN IFILL: Have you been in touch with the White House, Sen. Specter, or have they been in touch with you about this? SEN. ARLEN SPECTER: Yes, the president called both Sen. Leahy and me last Friday to set up a meeting where there will be consultation next Monday, where the president has invited Sen. Leahy, and Sen. Harry Reid, the Democratic leader, and Sen. (Bill) Frist, the Republican Majority Leader, and me to come in to talk on consultation. GWEN IFILL: Sen. Leahy, what do you think consultation means, based on your conversations so far with the White House? SEN. PATRICK LEAHY: Well, first off, what Sen. Specter says is absolutely correct. I mean, Sandra Day O'Connor was a conservative Republican, but one who was able to be a moderating influence on the Supreme Court. So everybody, Republican or Democrat, has a major stake in her replacement. I think that's what the consultation is. I mean, the president has to make the decision of who he wants to nominate. The Senate has to make a decision whether we confirm that person or not. I would hope it could be a collaborative thing. And the president makes the final decision, of course. But I think that we can tell him, these are certain people who could go through relatively easy, maybe with a sigh of relief. Others would be a major battle. I think this is a time where the American people would be ill-served by someone who provoked a major battle because, after all, the Supreme Court protects the rights of all of us, whether you're a Republican or Democrat or anybody else. And if you have somebody who barely makes it through a confirmation process, then the American people are not going to have the kind of confidence in that jurist that they should have. GWEN IFILL: I suspect you both agree that you would prefer it that there not be a major battle, but I'm wondering, Sen. Specter, I'll start with you, who do you think will be responsible for starting a battle: The president by the person he nominates or the interest groups or senators who object to that nomination? SEN. ARLEN SPECTER: Gwen, I'm not about to predict if there will be a battle, I hope we can avoid one, but Patrick and I will take it as it comes. But I'm not going to say who's going to start a battle. That would be an anticipatory picking of a fight, and I'm not going to do that. GWEN IFILL: Have you given the president any recommendations of people you would find easier to confirm? SEN. ARLEN SPECTER: No, I have decided that it is a best policy, from my point of view, not to do that. I think as the chairman of the committee and presiding and the umpire, so to speak, that I have the greatest latitude and the greatest independence if I listen. The president hasn't asked me for a recommendation, and I haven't given him one. I think there's a good adage, "Don't ask, don't tell," and I'm following that.
	What constitutes extraordinary circumstances?
	GWEN IFILL: Sen. Leahy, a few weeks ago, a group of senators known as the "Gang of 14" in the end, reached an agreement to avoid a filibuster in judicial appointments. Part of the agreement was that there would only be filibusters under extraordinary circumstances. In this case, in trying to choose a Supreme Court Justice, what would constitute extraordinary circumstances from your point of view? SEN. PATRICK LEAHY: Well, I think it would be hard to say. I'm like Sen. Specter. I don't want to set up some barriers right to begin with, you know. Cross this line and this happens and so on. I'd hope that's not the case. I trust Sen. Specter's judgment in setting up the schedule. I'll work closely with him. We'll take the nominee who it might be. Then we'll have a recommendation to the full Senate. If you had a nominee who came out, say, on a party line vote, that's going to be troublesome. If you have a nominee who comes out of the committee with a very solid vote, I don't think you even have a question. They'll either rise or filibuster. I'd like to see us be able to have a nominee that would unite the country, not divide the country. If that happens, then the question of a filibuster or no filibuster is not even a relevant issue. I'm hoping that's where we're going to be. I'm hoping we won't even have to think about what is meant by this agreement by this so-called "Gang of 14." GWEN IFILL: But you have both, I'm sure, seen all the headlines and all the press releases and all the back and forth attacking people who haven't been nominated yet, including the president's own attorney general, whom he was forced to defend this week. Sen. Reid said this afternoon apparently that he would actually support the nomination of Alberto Gonzales. Sen. Specter, what do you make -- what message would you like to send to all these people who are already engaged -- perhaps not you two, but colleagues of yours and interest groups on both sides in this fight? SEN. ARLEN SPECTER: Keep down the rhetoric. The president has made that request personally, and he was very direct about it. He said, "When you attack a friend of mine -- and Al Gonzales is a friend of mine -- I don't like it." Now listen, Gwen, there's no reason to start up now. We haven't gotten a nominee yet. If people don't like the nominee, there's plenty of time to respond later. You have the interest groups where they're touting $20 million on each side and from my point of view I think it is totally counter-productive. We in the Senate realize how important this is. No one needs to remind us. And back in 1987, when Judge (Robert) Bork was up for confirmation hearings, and I was awakened one morning when the famous movie actor Gregory Peck appeared on a commercial, a radio commercial and was criticizing Judge Bork, it almost made me change my vote. I think that these groups do not play a constructive role, but I understand it's America, and they can do whatever they like. But I think -- go ahead, Pat.
	Keeping special interest groups out
	SEN. PATRICK LEAHY: No, I was just go to add to that. I agree, I think it's counter-productive. It looks almost like a political campaign, and it's not. We're talking about the highest court in the land. I mean, they have a right to say what they want, but the president is right in saying tone down the rhetoric, whether it's the groups that are allied with the White House or the groups that are allied with the Democratic Party. I wish they would calm down. They are not going to influence this senator's vote, either the groups on the right or the groups on the left, and I include a number of my good friends in those. I'm going to make up my mind based on what I read in the background material on the nominee and what I hear during the hearings. I want to be there for every minute of the hearings. That's where I'll make up my mind. That's my constitutional duty, not my constitutional duty to be either a rubber stamp for the White House or a rubber stamp for a special interest group, either on the right or the left. I really resent it. I think senators -- there's 100 of us -- we have an enormous responsibility to the American people to make sure we vote for somebody who will protect their rights, and we should take that -- we should take that duty very seriously, not as a political football duty. GWEN IFILL: Sen. Specter, it ideology fair game in these hearings, finding out what people actually believe, not just whether they're fit, as the president has described, and qualified? SEN. ARLEN SPECTER: Well, the ideology could come into play if it is very, very, very extreme, and we had the situation with Judge Bork. And when he was for original intent, it seemed to me that that was the most extraordinary view of constitutional interpretation of anybody who had ever been nominated. For example, when the 14th Amendment "Equal Protection" clause was enacted, the galleries in the United States Senate were segregated, blacks on one side and whites on the other. And that's what those senators meant by their own intent. Well, that kind of an interpretation didn't apply in modern days, and if you have something which is just way off the boards, I think it is possible, but it has to be really off the boards. GWEN IFILL: What about that, Sen. Leahy, how far off the board? SEN. PATRICK LEAHY: Well, I agree with Sen. Specter. Certainly, we're going to look into somebody's ideology. The president's going to look at his nominee's ideology. But if the ideology is so extreme it makes the person an activist one way or the other, then that's a legitimate area to go into, but that's why you have these hearings. That's why you ask questions. Senators can either ask real probing questions or they can give speeches. I hope they'll ask real probing questions because, again, these are the rights of the American people. They have to be protected. The Supreme Court is supposed to be a check and balance on both the Congress and the White House. It should not be an arm of either the White House or the Congress. It has to be an independent check and balance, and that's what our oath of office requires us to do to make sure they are. Different senators will ask different questions. I intend to ask very extensive questions, and depending upon those answers, I'll decide how to vote.
	The ideal nominee
	GWEN IFILL: Sen. Leahy what is your ideal, confirmable nominee. SEN. PATRICK LEAHY: Well, you know, it's funny. If Sandra Day O'Connor was up today for the first time, people would say on the left she's a conservative Republican; on the right, they say she -- she's too much of a consensus builder. As it turns out she was just about right. I don't know if we can find another Sandra Day O'Connor, but somebody doesn't come in there with the intention, by gosh, they're going to be an activist. They're going to do an ideological issue that they're going to -- but rather somebody who not only has the abilities, but respects the law. Frankly, another thing I would urge the president, consider somebody outside the judiciary. There's no need that this person has to come from within the judicial monastery. He may want to consider somebody outside. GWEN IFILL: I see Sen. Specter nodding to that. How about your idea of an ideal confirmable nominee? SEN. ARLEN SPECTER: Well, I would pick up on what Sen. Leahy said about getting somebody who is not a graduate from the court of appeals. But to answer your question more directly, I would like to see someone who has a good educational background, a good professional background, somebody who has respect for precedent, who has an understanding of the constitutional continuum where the values of the American people have necessarily shifted over the course of 200 years, and would study the opinions and would try to carry forward the tradition of individualized justice for all Americans. GWEN IFILL: Sen. Arlen Specter, and Sen. Patrick Leahy, thank you very much for joining us. SEN. ARLEN SPECTER: Glad to be with you, Gwen, thank you. SEN. PATRICK LEAHY: Glad to be with you, Gwen.