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October 28, 2005



PAUL GIGOT: Welcome to the Journal Editorial Report. It could have been worse. President Bush had to accept a punishing defeat on his nomination of Harriet Miers for the Supreme Court, but the feared indictment against his top adviser, Karl Rove, did not come down.

First, the Miers case. She withdrew, when it became clear she was not making headway against the opposition to her nomination from all sides especially particularly from conservatives. Now the President faces some critical decisions on what to do next.

Joining me to discuss this are Dan Henninger, columnist and deputy editor of the Wall Street Journal editorial pages; David Rivkin, an attorney who has served in the Justice Department under President Reagan and the first president Bush, and who has written for the Wall Street Journal; and John Fund of, who on this program last week predicted the Miers nomination was going to end this way. John, the President has another nomination to make, obviously. What are the lessons for him as he thinks about that pick from this failed nomination?

JOHN FUND: Paul, I think there are three lessons. One is, no matter how well a president knows someone that he wants to appoint to high office, he has to go through a proper vetting process and ask the tough questions. That wasn't done with Harriet Miers. Secondly, the conservative base in this country, I think the White House often misunderstood their loyalty to President Bush as being loyal to him only. They're actually loyal to a set of ideas. The White House thought the conservative base should follow the dictum, "our leader, right or left."

PAUL GIGOT: Yeah, but you know the conservatives, and certainly our page, has long believed that presidents deserve deference when it comes to Supreme Court selections, and major nominations for that matter. Why didn't the conservatives who are his natural supporters after all give him that deference in this case, Dan?

DAN HENNINGER: I think largely because they were so shocked. As we said before, the Supreme Court nomination process as an issue dates back to the Bork nomination. The Bork think is just this sort of legendary event in conservative lore. And it is not just an incident in history that happened way back then. After it happened, the conservative legal community banded together and decided they would develop a theory of law, built around something like the Federalist Society, that would insure that they would create a bench, a whole generation of respectable, intellectually respectable legal theorists and judges, who would not the Democrats and the liberals would not be able to "Bork," in effect.

So when President Bush essentially stepped off this 10 to 15 year process as though it had not even happened, it was intolerable. It was just too shocking to the ...


DAN HENNINGER: To the system.

DAVID RIVKIN: There's not a fundamental reason. This is such a consequential decision. We've talked about it actually on this program some weeks ago. Because if you think about it, every issue of importance in public policy, of foreign policy, has been swept into the judicial vortex. But it's very ironic. Democrats have built over a period of decades, the courts into both centers of power and made it so consequential. If you prune the judicial function to its constitutional essentials, frankly it would not be that much at stake here.

JOHN FUND: Well also, you wouldn't have the confirmation battles we have now, which are basically like book battles for the Senate. I mean, you have every interest group using commercials. That didn't happen when the court limited its role to what the founders intended.

PAUL GIGOT: David, several people I respect, including one of our colleagues, Joyce Malone, argue that this withdrawal by Harriet Miers is a blow to the President, because it's a blow to his prestige and his authority in Washington, and it means that it's going to be open season on him from all kinds of sources to people who say, look, he can rolled. Do you agree with that?

DAVID RIVKIN: No, I don't. In politics, being able to realize that a mistake was made and correcting it early and it was reasonably early to me is a virtue, not a vice. Second, I think events that you've described during the introduction are going to move in the direction where this would be overtaken in the next several days. Point number two, the base is very anxious to put it behind, and frankly it's going to be a tough fight on the next conservative nominee, and I think it's going to again unify the party.

JOHN FUND: In 1987 Ronald Reagan nominated Douglas Ginsberg to the Supreme Court. He had to drop out because of alleged marijuana use. Within five weeks, the President had nominated Anthony Kennedy, who had a track record as a conservative judge, and he was approved unanimously. It can happen.

PAUL GIGOT: Is there a lesson here for the President about how deferential to be to the Senate? Because he's made a real point about talking about consultation, and there's no question when you talk to some White House sources that they'll tell you that two or three of the names that we had thought might be nominated, and some of the people in that farm team you've talked about, Dan, were off the table because senators said, sorry, too heavy a lift, too controversial. Should he pay attention?

DAN HENNINGER: I think that's one of the great ironies here. The conservatives the conservative legal community, and it expands beyond them as well they want to have this debate in front of the Senate. They want the national television cameras turned on this nominee, and they want that nominee to defend these ideas. The political side and that includes the White House doesn't want to have that debate, nor do the senators very much want to have that. The Democrats do not want to make a good faith effort to engage these people. They simply want to find out their position on Roe v. Wade.

PAUL GIGOT: Well wait a minute here. John Roberts did not have that long a track record. He certainly didn't have a Borkian paper trail. And yet, he was shown a great deal of respect and deference by the conservative interest groups, and by conservative senators. What's the difference between John Roberts and Harriet Miers?

JOHN FUND: Well, I think what you have here is, the Administration really believed that Harriet Miers would be a super stealth nominee. It turned out that she could not name anyone that she had ever had a conversation with about serious philosophy or judicial intent. As a result, John Roberts had 30 years of impressing people that he was a person of ideas. Quality matters. Harriet Miers couldn't demonstrate that she would clear that bar.

PAUL GIGOT: Yeah, I think that's a very important point. Quality matters. People understood John Roberts was they knew him from Washington, and everybody, even Chuck Schumer, was obliged to say, look, he's a brilliant fellow. That makes it much harder to defeat somebody when it goes to the Senate.

DAVID RIVKIN: And we know one simple proposition, that if you come in with a strong intellectual grounding, you tend to drift to the left, because so much of the pull of popular culture and the salons of Georgetown being praised in The New York Times.

PAUL GIGOT: Well you mean if you come on to the Supreme Court.

DAVID RIVKIN: If you come super-armored. So you almost have to be super-armored with well-developed, full-crafted judicial ideology. And even then it would be tough.

PAUL GIGOT: Dan, let's talk about the next nomination, because the conventional wisdom in Washington is now that the President has this narrow margin, because he's got to thread the needle between the conservatives, who he needs to get back, but he can't go too far to that direction because he needs, he doesn't want to pick a big fight with the liberals. Do you agree with that wisdom, so-called?

DAN HENNINGER: Well I think, yeah, up to a point. I think it's a bit of a non-issue, because there's a list of at least 15 or 20 nominees as a result of the process I was describing earlier that's taken place the last 15 years, who would be perfectly capable. And if he wants to go from extreme conservative fire-breathing, highly intellectual, over to someone in the right, but nonetheless a member of this intellectual community, he can find that person. It's not going to be hard.

PAUL GIGOT: Can he get the conservatives back supporting his next nominee, Dave?

DAVID RIVKIN: The short answer is yes. They're very eager to go.

PAUL GIGOT: And how does he do that?

DAVID RIVKIN: He appoints a person who is conspicuously within that stream of philosophy described: original intent, similar to Scalia. That is again, not a fight about overturning Roe v. Wade. This is a fight about the role of the judiciary in a democratic society like ours in the 21st Century.

DAN HENNINGER: You know, we can't leave this discussion, though, without describing the possibility of going to the nuclear option. If the Democrats decide they're simply and you know, they were going to oppose Harriet Miers, because they convinced themselves that she was going to overturn Roe v. Wade. If they convince themselves about the next nominee, we're probably heading down the road to a filibuster and a nuclear option.

PAUL GIGOT: So what you're saying is that the fight over the next nominee would actually help the President, be useful for him. He ought to do it, he ought to welcome it, because it would rally his support, and be over something that matters.

DAVID RIVKIN: It's one of those rare things, Paul, where the imperatives of good, sound policy and good politics are the same.

PAUL GIGOT: So do you think he names a conservative nominee?

DAVID RIVKIN: I think he's going to name a very ...

PAUL GIGOT: Who do you think it'll be?

DAVID RIVKIN: I would predict Alito.

PAUL GIGOT: Sam Alito?


PAUL GIGOT: A judge on the ...

DAVID RIVKIN: On the Third Circuit.

DAN HENNINGER: Who Specter likes a great deal, the Judiciary Committee chairman.

PAUL GIGOT: Arlen Specter likes him. How about you, Dan?

DAN HENNINGER: Well, I wrote a week ago, withdraw Harriet, nominate Edith Jones of the Fifth Circuit in New Orleans, and I'm going to stick with it.


JOHN FUND: Chris Cox, the new head of the Securities and Exchange Commission, has just been vetted and confirmed unanimously by the Senate. He's a very powerful lawyer and was in the House leadership and knows half the Senate personally.

PAUL GIGOT: J. Harvie Wilkinson would be my pick. Fourth Circuit I think? Okay, all right, thank you all very much. Next subject.