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Senate Debate Over Judicial Nominees Continues

May 19, 2005 at 12:00 AM EST
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KWAME HOLMAN: As the showdown over President Bush’s judicial nominations entered its second day, activity all around the Capitol seemed focused on the Senate floor.

SEN. CHUCK SCHUMER: And they’ll break the rules to get there.

KWAME HOLMAN: This morning, Democratic leaders stood with members of the Congressional Black Caucus to denounce the Republican majority for abusing its power. While outside the Capitol, Majority Leader Bill Frist appeared with a group of pastors in support of African American nominee Janice Rogers Brown.

SEN. BILL FRIST: Now is the time to give Janice Rogers Brown a fair up or down vote that she deserves.

KWAME HOLMAN: And the fight spilled over into the Senate’s everyday business. A hearing of the Foreign Relations Committee had to be cut short when Democrats invoked a procedural right to stop all committee work while the judicial battle raged on.

SEN. CHRISTOPHER DODD: There’s a nuclear option that is pending before the United States Senate, and my hope is that matter can be resolved amicably and within the next number of hours, and by creating a little bit of tension institutionally, it may get us closer to that result than not.

KWAME HOLMAN: While senators continued to debate the right to filibuster and the threat of the “nuclear option,” the focus remained the nomination of Priscilla Owen to the Fifth Circuit Court of Appeals. Mississippi Republican Trent Lott:

SEN. TRENT LOTT: She’s from Texas. Maybe that’s part of the problem, I don’t know. She serves on the Texas Supreme Court. Seemed like a good training ground before you move to the federal judiciary.

She’s practiced law with one of the most prestigious law firms in the state of Texas, commercial litigation primarily for 17 years. She’s been on the Supreme Court of Texas for ten and a half years, and the last time she ran she was endorsed by every newspaper in the state and she received 84 percent of the vote.

KWAME HOLMAN: Democratic Leader Harry Reid repeated his party’s long-standing critique of Owen’s record, pointing out that now-Attorney General Alberto Gonzales had criticized Owen while the two served on the Texas Supreme Court.

SEN. HARRY REID: And I might note that the Attorney General of the United States has called her activism unconscionable, and I read to the Senate yesterday what those words mean; unconscionable: Shockingly unjust and unscrupulous. That’s what the Attorney General of the United States said about Priscilla Owen.

KWAME HOLMAN: But Texas Republican Kay Bailey Hutchison argued that the attorney general later clarified those remarks under oath and she quoted him.

SEN. KAY BAILEY HUTCHISON: “My comment about an act of judicial activism was not focused at Judge Owen or Judge Hecht; it was actually focused at me.”

This is a tragically misleading statement to be used against Justice Owen. First, judges disagree. That’s why we have a nine-member court. They argue with each other. They accuse each other of misreading the statutes.

KWAME HOLMAN: Democratic Whip Dick Durbin argued the Owen nomination stands in the way of Democrats’ willingness to allow up or down votes on less controversial judges.

SEN. DICK DURBIN: We could have approved four more judges for President Bush at the circuit level, moved forward on a bipartisan basis and done it before lunch.

And it was the decision on the Republican majority side that rather than bring this to a vote, bring it to closure, make progress, show that we are working together on a bipartisan basis, that instead they are going to continue to press for the so-called nuclear option so that Vice President Cheney can wipe away a 200-year tradition in the United States Senate with a wave of a hand.

I think unfortunately that is a sad commentary of where we stand today and I yield the floor.

KWAME HOLMAN: With a vote on the nuclear option looming next week, a bipartisan group of senators met again today aiming for an agreement that would confirm some judges while retaining the right to filibuster.

JIM LEHRER: And to Ray Suarez.

RAY SUAREZ: The battle over judges is generating heat in Washington, but how far is that heat radiating across the country? We turn to politics watchers in states with key players in this Senate drama.

Bruce Cain is the director of the Institute of Governmental Studies at the University of California-Berkeley. Ed Cromer is the editor of the Tennessee Journal in Nashville. And William Lutz is the managing editor of The Lone Star Report in Austin, Texas.

And, William Lutz, you just heard some of the floor debate; there’s tough debate and tense negotiations on Capitol Hill. But is it gaining much attention where you live in Texas?

WILLIAM LUTZ: I think it’s been in all the major newspapers, and it’s been on television, so it has certainly gotten plenty of attention in the press.

I think among the political activists and those who follow politics carefully, the kind of people who would vote in a primary or serve as a precinct judge at a party convention, they’re very interested in this issue. The general public, you know, participation in politics has been declining somewhat over the last few years.

RAY SUAREZ: How about, Ed Cromer, in Tennessee, the home state of the Senate Minority Leader Bill Frist who is leading the fight?

ED CROMER: Well, I have to say it’s pretty much the same here in Tennessee. It’s in the newspapers, and it’s on television. But I don’t think it’s a burning issue with the general public.

Among people who are more attuned to politics and national government, there’s a latest of discussion. But most people aren’t talking about it a whole lot. There are some bigger objects on the radar screen here.

RAY SUAREZ: And Bruce Cain, what’s the scene in California?

BRUCE CAIN: Well, I’m going to make it three for three, I mean I think it’s a similar situation here in California, and made worse by the fact that we have our own political drama, namely whether Gov. Schwarzenegger is going to give us our sixth election in the last four years.

So it’s only been in the last couple of days that the fight about the filibuster has really made it into the front pages of the newspapers and that some of the local TV and radio stations are starting to pick up the topic.

So I see some potential over the next week or so for this heating up in California, particularly since Janice Brown is one of the key players in all this.

RAY SUAREZ: Well, William Lutz, how about that point? Is there peaking and valleying depending on whether or not the action on Capitol Hill itself is reaching a new level of intensity?

WILLIAM LUTZ: I think obviously this has gotten a lot more attention than any judicial nomination that I can remember for a circuit court. And I think, you know, there are, even though the general public doesn’t pay as much attention to public policy as they used to, I think that among political activists and the kind of people that decide primary elections that are likely to vote in the general, they’re paying attention to this on both sides very carefully.

RAY SUAREZ: And in Tennessee, is this a question that Bill Frist, who said to have national ambitions, is this something he can run on, use to appeal to the home folks on?

ED CROMER: Well, I think it’s certainly not going to hurt him with the home folks. I think if the situation were reversed and Jim Sasser or Al Gore won — were still in the Senate and trying to do something like this to get more liberal judges confirmed, that there might be a backlash.

But it’s not going to hurt him. But he, he doesn’t need this in Tennessee anyway, that’s obviously not what he’s pursuing with this. He’s in pretty good shape in this state.

RAY SUAREZ: Now, William Lutz, Janice Rogers Brown, one of the central figures in this debate, is a Californian, also obviously a woman and a person of color.

Today at a news conference where Bill Frist had some very tough words for his Democratic opponents, the issue of race was brought up by some of the speakers at that news conference. Is this something that outside the normal partisan lineups is going to change the dynamic in a place like California?

BRUCE CAIN: Well, you probably want to ask –

RAY SUAREZ: I’m sorry. Bruce Cain.

BRUCE CAIN: Yeah. I mean, I would say this: That it will definitely change the dynamic in California because for a variety of reasons; One Janice Brown is a Supreme Court Justice here.

She is somewhat controversial because she authored the Proposition 209 decision that upheld 209. Some of her statements about hate speech have gotten many of the civil rights groups here up in arms. And we’re headed into potentially a special election in November where parental consent, parental notification rather, may be one of the measures that’s on the ballot.

So there’s some resonance with the things people are thinking about in California and the debate that’s going on in the Congress. So I see there’s a potential here for this issue becoming very big in California.

RAY SUAREZ: Now, William Lutz, I do know the difference between you guys. Priscilla Owen is a Texan, and the two state senators have some interest here, Sen. Cornyn sat on the bench with Judge Owen, and Kay Bailey Hutchison is said to be eying a statewide race in the coming years for governor. How do they have to play it at home?

WILLIAM LUTZ: Well, I think the more they can important this nomination, the more it helps them politically, because among the people who are more likely to vote, abortion is a very important issue.

There are a lot of people who vote on that issue alone, probably next to taxes and guns it’s probably one of the three most powerful issues in Republican politics, and Texas is a very conservative state. So pushing President Bush’s judicial nominees will help them both politically, while President Bush’s controversial nationally, he is still extremely popular in Texas.

And I think that anything that Sen. Cornyn or Sen. Hutchison can do to help Judge Owen, who has been elected on the statewide ballot twice here in Texas, is to their political benefit.

RAY SUAREZ: And is the use of religion a potent form of appeal? Many of the ads pushing Priscilla Owen’s candidacy for that judicial seat mention that she’s a Sunday school teacher. Earlier on in this debate there was much mention made of the fact that people of faith were being locked out of judicial seats. Is this an issue that cuts very strongly in Texas?

WILLIAM LUTZ: Particularly in Texas and other socially conservative states in the South and Midwest, absolutely.

The Republicans have done research that has shown that people who go to church regularly, who attend every Sunday, are of much more likely to vote and are much more likely to vote Republican than people who do not go to church. And this issue is one that drives that segment of the population, a segment that a lot of politicians are trying to appeal to.

RAY SUAREZ: Ed Cromer, are there any angles of this story, any parts of this story that have had more appeal than others, as both sides have looked for a way to both get the public engaged in the debate over filibusters, and sway it to their side?

ED CROMER: Well, in terms of Tennessee, as I said, I think it just pretty much falls along party lines. The Democrats think this is an outrageous power play and a travesty, and Frist is catering to the political, to the hard right.

And Republicans think it’s a necessary step to thwart those obstructionist Democrats and let the Senate fulfill its constitutional duty. It just really has not caught on as a burning issue here.

RAY SUAREZ: Do you think people are more aware of what a filibuster is and what the dynamics of a fight over federal judgeships involves?

ED CROMER: I suppose so. They certainly will be by the time this is over, if they’re not. I think if this were over a Supreme Court nominee, I think it would be a much bigger issue here.

RAY SUAREZ: And is it, as Harry Reid of Nevada has suggested, really the opening salvo in an eventual fight over a Supreme Court seat? Is that what people in the know in politics are saying in your state, Ed?

ED CROMER: I think that’s right. I think that’s exactly right.

RAY SUAREZ: And Bruce Cain, in California, same question. Is there any part of this whole debate, you mentioned earlier decisions about choice and state abortion law, is there any part of this fight that’s had more resonance, that’s made more gain, more penetration into the political consciousness in California?

BRUCE CAIN: Well, aside from the things that I mentioned, I also think the fact that Arnold Schwarzenegger is going over the heads of the legislature and appealing to the sort of general average voter is somewhat similar to what the Republicans are trying to do, getting away from the super majority check of the filibuster and saying, “Let’s have an up or down vote.

So there is a kind of resonance in going away from the normal procedures of government and trying to, you know, enforce majority will on the Democrats. And so I think the Democrats here are going to pick up on that theme, increasingly, over the next couple weeks.

RAY SUAREZ: There’s a lot been written about Gov. Schwarzenegger’s possible decline in approval ratings and overall popularity. Does that give the Republicans a tougher time in making this a big issue in California?

BRUCE CAIN: It doesn’t help, but I would say that on social issues Gov. Schwarzenegger has been very careful to kind of steer clear. His agenda is pretty much a libertarian economic deregulation agenda, and I don’t think he would have stuck his neck out for socially conservative judicial appointments.

So I don’t think the Republican Party was counting on his help, but it certainly isn’t a good thing for them to have Arnold Schwarzenegger struggling below 50 percent in popularity.

RAY SUAREZ: And you mentioned earlier, William Lutz, that George Bush remains very popular in his home state of Texas; as this thing moves to its climax, could this hurt the president in his own back yard?

WILLIAM LUTZ: I think it will, and I also think that like I said, the Republicans have done a very effective job of explaining the importance of this issue to a lot of their base, and I think part of what you’re seeing here is the Republicans working to energize their base vote, and this is an issue that is important to certain elements of the Republican base.

RAY SUAREZ: Gentlemen, thanks a lot for helping me out here. Good to see you.