January 2, 1998
From the debate surrounding judicial appointments to President Clinton's legislative legacy, Jim Lehrer discusses the week in politics with syndicated columnist Mark Shields, and Kate O’Beirne, Washington editor of the National Review.
JIM LEHRER: And speaking of politics, now we have our political analysis by syndicated columnist Mark Shields and Kate O’Beirne, Washington editor of the National Review, who’s substituting for Paul Gigot, who’s on vacation. Mark, where do you come down on this judicial confirmation argument?
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The judicial confirmation argument.
MARK SHIELDS, Syndicated Columnist: Well, both Senators I thought made their case well, Jim, but I think quite frankly what we’re seeing is the last year rule that Sen. Leahy invoked--credit going to Strom Thurmond for it, in the last year of any president’s presidency. There’s a very cooling of the information by the--judges and a sort of gentleman’s agreement that we’re going to wait and see what the election results are.
JIM LEHRER: Because they’re lifetime appointments.
MARK SHIELDS: They’re lifetime appointments. The Republicans are trying to push this back just a little bit, and there’s a little bit of payback. I mean, there’s an awful lot of people in the Republican side who have never recovered and never forgotten the treatment that Bob Bork got. And they felt that that was really the worst of partisanship. I think when all is said, what Pat Leahy--the Senator from Vermont--made the point, this has entered into presidential politics. John Ashcroft, Senator from Missouri, running for President in the year 2000, using direct mail on this, activist judges. The problem is we’ve run out of demons in American politics. We’ve run out of villains, and now judges are being demonized and the villains that you’re going to use to raise money.
JIM LEHRER: Is that what this is all about, demons, judges?
Kate O'Bierne: "If they (judges) stuck to their constitutional duties, they would be far less busy."
KATE O’BEIRNE, National Review: Jim, there are obviously two sides to most controversies, thank God, or we’d have to work for a living, Mark. But in this case the evidence is clearly on the other side. One simple fact--because it’s difficult to follow how many judges have been confirmed over what period of time--Ronald Reagan in his first term had a Republican Senate. Bill Clinton in his first four years has appointed 25 more judges than Ronald Reagan did in his first term with a Republican Senate. Two hundred and twenty-six Clinton appointees are now on the bench. They’ve only had three roll call votes, not a single one defeated. If anything, the Republican Senate is increasingly coming under criticism from more conservative groups that they’re not looking at these judges who serve in very powerful positions for a lifetime closely enough. So poor Orrin Hatch is caught in a squeeze, though, unfortunately, between liberal groups complaining and conservative groups wanting more scrutiny. I think Justice Rehnquist was wrong in focusing on the supply side, and that is the number of judges. The demand side, the number of cases, I think, is the bigger problem. Federal judges nowadays are hearing cases they shouldn’t be hearing. They’re running school districts, state school districts. They’re running state prison systems. They oversee environmental clean-ups. If they stuck to their constitutional duties, they would be far less busy.
MARK SHIELDS: Judges, it isn’t the chief justice’s job to come up with the demand side. I mean, the chief justice--the judiciary’s job is to handle the cases that come before ‘em, the laws that are written. They have 13,000 more drug cases this year than they had last year. This is a law and order Congress, writing tough federal laws. We’re going to bring everything before you. Nothing is going to be negotiated. Everybody’s going to go to trial. This means a bigger caseload. This means a need for more judges. Yes, Democrats did oppose judges, but there was usually a high profile. There was sort of a--they’d pick out one or two court of appeals judges or Supreme Court judges they’d make their fights on, but basically--
KATE O’BEIRNE: Republicans haven’t even done that.
MARK SHIELDS: What Republicans are holding up now are district court judges’ confirmations, and that’s really--Kate’s right--not voting on it--they’re just not allowing votes.
KATE O’BEIRNE: They’re rubber stamping them. Two hundred and twenty-six of them have been approved in five years.
MARK SHIELDS: No. I mean, Orrin Hatch is right, and Pat Leahy is, that they’re--quite frankly, they’re not coming to a vote.
KATE O’BEIRNE: I agree with Mark that Congress has exacerbated the problem by federalizing crimes on their law and order kick, and that has contributed to more federal cases, before the federal bench; however, it would be perfectly appropriate for Justice Rehnquist not to be criticizing Congress, except on that ground, because I agree, they shouldn’t be federalizing crimes, many more crimes, but instead to talk to his fellow lifetime appointees and say let’s show some self-restraint. As long as we federal judges put ourselves out there as the court of first resort if you disagree with the commencement speech, you don’t go to your state Department of Education director; you don’t go to the principal or school board; you go straight to federal court. And if federal judges showed some restraint and weren’t hearing all of those cases--every court--every case is not Brown vs. Board of Education--
JIM LEHRER: Right.
KATE O’BEIRNE: --they would be less busy.
JIM LEHRER: Beyond the politics of it, does this issue matter to the average American? Is this something people should get worked up about and say, hey, I’m for Hatch or I’m for Leahy, I’m for Rehnquist, I think Rehnquist was right or wrong?
KATE O’BEIRNE: The idea of powerful federal judges I think--and I think Sen. John Ashcroft, as Mark pointed out, could be on to an issue here. Based on people’s experience with individual cases, people, for instance, in Missouri, were very mad at a federal judge who ran the school system for 18 years--he actually--he actually ordered a property tax increase. That kind of activism or a judge in California who overturns a popularly passed referenda--those kinds of situations do get people riled up, and they do begin paying attention to federal judges who exercise far too much power outside their prescribed power.
MARK SHIELDS: I think, quite frankly, Jim, there’s been a loss of confidence on the part of both political parties and both political sides in their ability to win a majority to the public square of argument. And there is a willingness to resort to courts as a first resort. I mean, whether it’s Democrats or Republicans, liberals or conservatives--
JIM LEHRER: What should they be doing first?
MARK SHIELDS: Well, they ought to--we ought to be trying to win things. It began, quite frankly. You could see it in Roe vs. Wade. We were working out in this country a position, a policy on abortion, a public policy. Legislatures were working on it, and all of a sudden it gets short circuited, you go to court, and that becomes oh, that’s what we’ll do; we’ll find a friendly judge, whether it’s a conservative, whether it’s liberal; we’ll go judge shopping, instead of trying to win a majority win and prevail in argument and debate, in the state legislature, in the Congress, and that, to me, is what’s at--
KATE O’BEIRNE: A self-governing people--but a first line of defense should not be an unelected federal judge.
JIM LEHRER: It should be a legislative--
KATE O’BEIRNE: Absolutely. State judges.
JIM LEHRER: Look, on this relationship between Congress and the President, several newspaper editorialists and columnists have been saying the last few days that this is the last chance, 1998 is the last chance that President Clinton has to have a legislative legacy beyond welfare reform. Do you agree with that, Mark?
A plumber or a poet?
MARK SHIELDS: Yes, I sure do. I mean, Bill Clinton, Jim, right now--January 1998 we’ll have held--will hold the highest favorable rating of any president in the sixth year of his presidency in the history of the country, bottom polling--I mean, that’s remarkable--more popular than Ike, more popular than Ronald Reagan--he is the most admired man in the country, in the world, according to the CNN-Gallup poll just conducted. So, I mean, here is at the top of his game. He is Dwight Eisenhower without the military achievements, without the military credentials, without a national hero, but he is in terms--he’s astride the political planet right now. And for him to just kind of drift and to kind of nibble at the edges, and I think that’s--that’s the problem. People look at a president two ways. Is a plumber, or is he a poet? Some people just want a plumber--makes the pipe work, makes everything flush and the water run. And Bill Clinton is superb. He’s been superb in that respect. I mean, the lowest unemployment, lowest inflation, jobs created, deficit balanced, all of this stuff, but there’s a yearning for poetry, there’s a yearning for a sense of what we’re about as a people, what is our national purpose, what is it we collectively should do? That is missing, and there’s sort of an emptiness of the soul right now, especially among his Democrats.
JIM LEHRER: And is he going to get that chance in 1998 from the Republican Congress to write poetry or do some plumbing?
KATE O’BEIRNE: It seems--leaving that aside--
JIM LEHRER: I promise never to mention that again. Go ahead, Kate.
KATE O’BEIRNE: It seems he’s obviously searching for that kind of legacy but might have to settle for a Labrador. It’s difficult to see how this president is going to get a legislative legacy out of a Republican Congress. He had two years in the Democratic Congress. He didn’t know it was only going to be two years, and he had very modest agenda with the singular exception of a huge overreach, i.e., the health care reform that even a Democratic Congress wouldn’t pass. So that was his window. As I said, he didn’t know it at the time. And since then everything’s compromised--not that he has any grand schemes, it seems--but even if he did, they would be diminished, I think, by a Republican Congress. He will be known for what Mark noted, I think. He will go down in history, it seems to me, as having been enormously resilient. Look at the enormous popularity, despite an unprecedented number of scandals surrounding him in his administration, and I think his resiliency and his political reflexes. He is very quick to responding to the political reality.
Republican Congress vs. President Clinton
JIM LEHRER: And what about the Republican Congress, how do they play that in 1998? What have they got on the table versus what President Clinton has on the table?
KATE O’BEIRNE: Well, they’ll benefit, as does President Clinton. I think we saw that in elections last November. They’ll benefit from a very good economy, no overarching issues. It’s a quiet environment, therefore, we incumbents will take credit for that, they’ll tell voters, and you ought to send us back to do more of the same.
JIM LEHRER: Not a party issue, an incumbent issue.
MARK SHIELDS: Well, the Republicans, you have to understand, the Republican Party has become the bigger party. It’s a more complex party. There’s a lot more arguments and tension and fault lines within the Republican Party. There are internationalists; there are nationalists, as far as trade or not trade. There is those who want to balance the budget; there’s those who want to cut--but there’s one idea, Jim, one idea alone that holds all Republicans together, cutting taxes. It is the only idea the party has; it’s the only idea that they agree upon; and the more that taxes can be cut on those who pay taxes, a lot of taxes, then the better, and that’s I think will be the only Republican idea in ‘98.
KATE O’BEIRNE: And I think there’ll be some competition because I think Bill Clinton will feel compelled to come up with some sort of tax cut; Dick Gephardt has a version of it; we’ll be talking taxes.
JIM LEHRER: Okay. And thank you both very much. And Happy New Year to you both.
MARK SHIELDS: Thank you.
KATE O’BEIRNE: Thanks, Jim.