Shields and Ponnuru
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JIM LEHRER: And to the analysis of Shields and Ponnuru. Syndicated columnist Mark Shields and National Review senior editor Ramesh Ponnuru. David Brooks is off.
Mark, first what would you add to what’s been said about Sandra Day O’Connor, what’s the most important thing we should think about her tonight?
MARK SHIELDS: Well, I mean, Jim, it’s a reminder that this is a political decision. She was chosen in 1981 by Ronald Reagan. Ronald Reagan had promised on Oct. 14, 1980, in Los Angeles — for the only time in the campaign, Reagan campaign polls, overnight polls, showed the president was trailing with Jimmy Carter. His high command met and said we’ve got to do something; we’ve got to shake things up.
And Ronald Reagan had always thought about — let’s promise we’ll appoint — and nominate a woman to the Supreme Court, so that campaign pledge was redeemed and she was the only woman candidate, only candidate for the Court, that he only interviewed, and she has the strong backing of Barry Goldwater of Arizona, Paul Axalt of Nevada, his original campaign chairman; she herself had had political experience. So it’s a reminder this isn’t an antiseptic, immaculate conception or something how judges are made. Judges are lawyers who know politicians.
JIM LEHRER: Ramesh, what would you add or subtract from that?
RAMESH PONNURU: Well, I think that it’s worth noting that Justice O’Connor was the most powerful woman in American government for many years, and you could make an argument that if you leave foreign policy aside, she was the most powerful person in American government. And I think that points to one of the ironies of her career. As a lot of people have said, Justice O’Connor tried to sort of muddle through and come up with compromises, not draw bright line rules and bring people together.
But I think the result is you have — partly because of her — the most polarized politics around the Supreme Court that we’ve ever seen, because her style of judging makes it matter so much who’s on the Supreme Court what their sensibilities are, what precise rulings they’re going to make, and I think that’s one of the reasons why we’re going to very likely see a lot of bitterness around the confirmation of a replacement.
JIM LEHRER: We’ll get to that in a minute. But in general terms, what do the non-judicial political conservatives think of Sandra Day O’Connor?
RAMESH PONNURU: Well, I think that conservatives, you know, that’s a good way of putting the question, because there’s the legal conservatives, then there’s actual grassroots conservatives, and it’s seems to me that the only mass constituency on the right that pays attention to the courts is the right to life constituency. So there were early signs that Justice O’Connor was not with them, and then after she made her decision to reaffirm, albeit with modifications, right to lifers have regarded her as a grave disappointment from the Reagan administration.
JIM LEHRER: Now, same question for the liberals, Mark, here again not talking about the judicial types, the legal types, but the political types, what did they think of her?
MARK SHIELDS: She was a wildcard.
JIM LEHRER: A wildcard?
MARK SHIELDS: She was a wildcard. She was the linchpin. I mean if you really want to see why liberals have dreaded this day of her leaving, because you always had a shot at it, you always had a hope for getting her vote if you’re on the left side, and why conservatives have looked forward yearning, counting the hours to this day — with the two Ten Commandments case this is week. In both cases, it was Steve Breyer, the Democrat appointment of Bill Clinton, who was the swing vote that okayed it for Texas but at the same time prohibited it for Arizona — or for Kentucky. In both cases she had voted with what you would call the left wing of the court, the secular wing, the separation wing. So, I mean, that’s what makes her up for grabs. The liberals always thoughts they had a shot at it –
JIM LEHRER: And they often did –
MARK SHIELDS: And they often did. And she was crucial.
JIM LEHRER: Now, is it safe to assume that President Bush is not likely to appoint another middle person like Sandra Day O’Connor to replace her?
RAMESH PONNURU: Well, you know, the thing about these appointments is they’re not necessarily what they become. David Souter was not seen as the moderate liberal that he turned out to be, and in some ways actually is on the left wing of the current court back when the first President Bush named him in 1990.
So you never know where a Justice is necessarily going to come out. And the president, you know, he’s got a political choice to make here. He’s got to decide, you know, does he want a relatively easy confirmation and bipartisan credit for putting somebody up in the mold of Justice O’Connor, or does he want somebody who is going to help with the project of changing the judiciary and making it more conservative.
JIM LEHRER: Based on what you’ve heard and read and what President Bush has said and done up til now what would you expect him to do?
RAMESH PONNURU: I suspect that he’s going to go with a conservative for a lot reasons. One is that as far as I can tell, the names that are being bandied about, it all seems to be a bunch of conservatives on the one hand, or Alberto Gonzales, the attorney general, who a lot of conservatives distrust for this role, as –
JIM LEHRER: Why, what’s their problem with Gonzales?
RAMESH PONNURU: Well, the problem, there are a couple of problems. One is that he is regarded as having weakened the administration’s position in, when the Supreme Court was considering the affirmative action in the University of Michigan cases.
And the second is this distrust on abortion. And again this gets back to Justice O’Connor’s career, if they hadn’t felt burned by O’Connor, and by Souter and by Kennedy, they might be inclined to be a little bit more relaxed when evaluating somebody like Gonzales, but that record is there, and so if they don’t know somebody is with them, they’re inclined to be a lot more suspicious.
JIM LEHRER: The Democrats, well forgets the Democrats.
MARK SHIELDS: I beg your pardon?
JIM LEHRER: I meant in terms of the way I was phrasing the question. How important, Mark, do you believe the abortion issue is going to be to first of all the selection of the nominee, and then to what the confirmation process might look like?
MARK SHIELDS: The abortion issue is the elephant in the room, Jim. Neither side directly talks about it. Ramesh has been more candid than our most observers, let alone most participants, except, you know, there’s zealots on both sides who will talk, that that is their litmus test. But most people will say, oh, well, we want to look at a whole bunch of things and the whole career and the whole thing.
Jim, politically, this couldn’t have come at a better time and a worse time for George W. Bush. You know, just think, eight month ago he was on the cusp of an enormous victory, he was the first president in 16 years to win a majority of the popular vote, bringing with him increased Republican majorities in the Congress. I mean, he was really formidable.
Eight months later, he’s hemorrhaged support. Iraq, and every one of the things he’s hemorrhaged support on, Jim, have been things where the democrats have been noncombatants; they haven’t even been involved. If you think about it, Iraq, the Iraq policy has gone south on him, the casualties and all the rest of it; the Schiavo case; the Social Security, self-inflicted. So Democrats just got to stand aside; they’ve been observers of this, now they have to join the fray.
JIM LEHRER: Democrats do?
MARK SHIELDS: Democrats do, which may — you know — so they’re now combatants in this thing. If George Bush really wanted to be shrewd politically, there’s no reason he should listen to me, but the Democrats’ worst nightmare, worst nightmare are two nominees, Michael McConnell of Utah –
JIM LEHRER: Who’s he?
MARK SHIELDS: He’s a conservative scholar, he’s court of appeals in Denver; a very solid conservative, but very thoughtful and sort of iconoclastic –
JIM LEHRER: Where does he stand on abortion?
MARK SHIELDS: He’s pro-life on abortion. And John Roberts of the District of Columbia, who was the former counsel to President Reagan and also was the deputy solicitor to president, the first President Bush.
But the problem for both of them is they got on the Judiciary Committee overwhelmingly with Democratic support, so that makes them the intense zealots that Ramesh spoke of on the right; that makes them immediately suspect, I mean, well, wait a minute, if Democrats say something good about these guys, they’re both very high quality and that it would be awfully tough for Democrats to mount any kind of a real campaign against either one.
RAMESH PONNURU: Well, there is a school of thought that says, I mean, you were talking about the various things that have hurt this president politically, there is a school of thought that says what the president needs to revive his fortunes is a big fight where it’s red state versus blue state and all these values issues that the president hasn’t really been able to tap into, because none of those issues from Iraq to the economy to Social Security have really helped play into that dynamic.
Now, I actually agree with you in terms of both of those men very accomplished jurists who would be an adornment to any Supreme Court, but it would be interesting to see whether the president decides he wants — he actually welcomes the fight.
JIM LEHRER: So the politics of this — and the Democrats have the same political — they wouldn’t mind some kind of fight here, if the president picks somebody else who is very, very conservative.
MARK SHIELDS: Sure. Jim, I think there’s going to be a fight.
JIM LEHRER: There’s going to be a fight no matter what?
MARK SHIELDS: Jim, I mean, both sides are armed to their teeth. I mean, they’ve got their cell phones, they’ve got everything. They got their BlackBerries, poised, they’ve got their TV buys already made, they’ve got their media mavens working on these things, both sides.
I mean, the conservatives already acknowledged, admitted they’ve got $20 million in the bank ready to spend on television; liberals won’t say how much they’re going to spend. But I can tell you they’re organized like armies at this point.
And the big fight will be with the 24-7 television, whoever comes out, what the first coverage that day, the conservatives you remember vividly, Ted Kennedy going to the floor after Robert Bork was nominated and saying, in Robert Bork’s America, blacks will be not allowed to sit at lunch counters, and that set the terms of the debate. And conservatives don’t want that to happen, so you’ll see a rush to combat.
JIM LEHRER: You see a rush to combat no matter what?
RAMESH PONNURU: Absolutely. Not no matter what — I mean, it does depends to some agree on the nominee — but, you know, you have groups that have spent the last ten years gearing up for this fight and raising money on the basis that, you know, we are going to fight to the last ditch over this. Once a nomination happens, how can you say we were just kidding?
JIM LEHRER: Yes. Also I read today, Ramesh, that this nominee will be the most investigated in terms of anything in his or her personal life as well because there’s history there of course, in prior nominations, and the scrutiny that this person is going to be under is going to be probably the most severe we’ve had because of all the things you all just said. Do you agree with that?
RAMESH PONNURU: If there’s a stalemate on the issues, well, we’ll look into their library records, we’ll look into what clubs they’ve been members of, you know, what their financial dealings are and try to take care of them, take them out that way.
JIM LEHRER: You know, the politics of this for the politicians is one thing — I was looking at some polls and stuff today about this. The American people get turned off by these kinds of fights if it goes too far and it goes too long. Are they aware, do we want to tell them that?
MARK SHIELDS: Well, they do, Jim, but I think they’re a lot more interested in this than they were in the filibuster fights, for example.
JIM LEHRER: You think so?
MARK SHIELDS: But I think the intensity of support is among activist Democratic liberals or liberal Democrats and activist conservative Republicans. That’s where the real intensity is. But the public got interested in that Clarence Thomas fight, and I think with the 24-7 coverage –
JIM LEHRER: But they didn’t get interested in it on the issues, they got interested only in the second part when personal things –
MARK SHIELDS: I agree with you. And I think there is a sense of the stakes involved. I mean, because we do, people understand it’s a pretty polarized governmental setup we have right now.
JIM LEHRER: Public going to pay attention to this?
RAMESH PONNURU: Absolutely, I mean, especially if you have the kind of big high profile filibuster fights, I think the public is going to pay attention and that raises the stakes on both sides.
JIM LEHRER: OK. Gentlemen thank you very much, and welcome to you, good to see you, Ramesh.