Shields, Brooks and Greenburg

JIM LEHRER:

Now, how this looks to NewsHour familiars Shields, Brooks, and Greenburg: New York Times columnist David Brooks, syndicated columnist Mark Shields, and Chicago Tribune legal correspondent Jan Crawford Greenburg.

David, Senator Durbin says the president did this because he caved to his right wing. True or false?

DAVID BROOKS:

False. If there was confidence that she was going to be a great witness at the hearings, she'd still be the nominee today. You know, Sam Brownback is one of the most socially conservative members of the Senate, and maybe for him there are fine shades of being pro-life, but for most senators, that they're looking for somebody who could do okay, somebody who will be competent for the court, and be normally conservative.

And I think what did her in, in the end, was the members of the Senate — and I think most importantly, the White House staff — didn't have confidence that the week of November 7 would go by with her being a slam-dunk victor, and they didn't want to go through that.

JIM LEHRER:

Do you agree or disagree?

MARK SHIELDS:

Jim, I think quite frankly that David overstates the case. I think that there was not a single elected official of either party who called for her withdrawal. And what there was, was an organized effort — George Bush made an ominous political decision after September 11, 2001, and that was instead of governing a la Eisenhower as a center-right candidate who could lead this country in a bipartisan way with Karl Rove, his boy genius — his architect as he calls him — calling the shots, they decided to govern only with Republicans.

When you win an election — and he won reelection by the lowest margin anybody had since Woodrow Wilson — you are then dependent upon constituencies that said we were the key to your victory, and this was the claim made by the social and religious conservatives —

JIM LEHRER:

Sen. Brownback essentially said that a moment ago.

MARK SHIELDS:

He sure as hell did. And that, coupled with, very frankly, the inside-the-beltway elite punditocracy of the conservative movement led by Bill Kristol, George Will, Charles Krauthammer, David Brooks, the National Review —

JIM LEHRER:

They went after her?

MARK SHIELDS:

They really did; they did a big number.

JIM LEHRER:

David, do you want to defend being a member of the elite —

DAVID BROOKS:

Yeah. I'm a proud member of this elite club.

JIM LEHRER:

But you're not suggesting that you all didn't have anything to do with this, are you? You wrote some very tough columns about this.

DAVID BROOKS:

I wrote one tough column, but it was based on the evidence. I don't think anybody took any pleasure in this. And I think there was no sense that Bush had sort of betrayed anybody. There was a feeling on two grounds and there were two parts of this and this is what we're arguing about: one, competence, which was my main argument, and I think for a lot of people was the main argument, whether the person could really make an argument that would inspire law students for generations, and then: how conservative was this person?

And it came down to a marriage of those two which were interrelated. I think the impression one got was that Harriet Miers never had a political discussion in her life that anybody could tell about, and, therefore, she did not have developed political views.

JIM LEHRER:

On a more general — yeah.

MARK SHIELDS:

I just didn't accuse David of Shadenfreud, I mean, of enjoying this, I mean, but I do think that your fingerprints are all over it. I don't think there's any question you were very much at the scene of the crime. And there's a lot of hypocrisy going on.

We just heard Sam Brownback said we couldn't go forward until we saw the papers, we saw the White House memos she'd written.

John Roberts is nominated, we can't see them; there's no reason to see them. That's executive privilege.

DAVID BROOKS:

Mark, do you think she was qualified to be on the Supreme Court?

MARK SHIELDS:

I don't know, but I know the cry of this administration and its supporters has been everybody gets an up or down vote, everybody gets a hearing.

And for goodness sake, she was denied a hearing and she was denied an up-and-down vote, and the hypocrites on the right just kind of just ignored that.

JIM LEHRER:

Jan, I'm reluctant to ask you to involve yourself in this, but let me go to a factual issue now. What happens now on the Supreme Court with Sandra Day O'Connor, business as usual, right?

JAN CRAWFORD GREENBURG:

That's exactly right, and what happens is we're going to be seeing a lot more of Justice O'Connor than we thought we would be seeing. Of course she announced her retirement at the end of June, contingent on the confirmation of her successor. The White House put the wheels in motion pretty quickly; they nominated John Roberts to take her place.

We all thought Justice O'Connor would not be back in the Supreme Court, but then, of course, when the chief justice died, the president decided to move John Roberts into that center seat, called Justice O'Connor from Air Force One and said get working on your homework; we're going to need you to come back.

Now, she will stay on the court participating in cases until her successor is confirmed.

JIM LEHRER:

Now, speaking of her successor, is there anything that you can it will us from your reporting or just intuition as to whether or not the president is going to move quickly and try to come up with a replacement for Harriet Miers quickly?

JAN CRAWFORD GREENBURG:

Yes, reporting I've done today suggests that he will make a decision very quickly, possibly as soon as tomorrow —

JIM LEHRER:

Tomorrow?

JAN CRAWFORD GREENBURG:

— but certainly in the next several days.

JIM LEHRER:

Wow. Is there any word on how he may go? Will he go — well, is there any word?

JAN CRAWFORD GREENBURG:

Yes, his political advisers are urging him to nominate an experienced judge with a defined judicial philosophy. They believe very strongly that the American people want to know the judicial philosophy, and as we've seen, senators on that Senate Judiciary Committee want to know what this person believes.

So the president is likely now to nominate one of those federal judges that we've heard about and talked about from the very beginning, going back even to when we were thinking that we'd be looking for a replacement for Chief Justice Rehnquist, someone like a Sam Alito from New Jersey, a Mike Ludig from Virginia, perhaps a Priscilla Owen from Texas, but it's going to be an experienced jurist with a record.

JIM LEHRER:

Do you agree with that?

MARK SHIELDS:

I do. I think that George Bush has very simple options. He can blame the right and say to hell with them, I'm going to nominate somebody in the Roberts mold.

JIM LEHRER:

He might say that about David.

MARK SHIELDS:

No, but — say, I'm not going to bow to them.

JIM LEHRER:

Right.

MARK SHIELDS:

He could be angry and legitimately angry and say, I'm going to nominate a Michael McConnell, who —

JIM LEHRER:

He said, "Trust me," and they didn't —

MARK SHIELDS:

That's right.

JIM LEHRER:

— so why do anything to help them out?

MARK SHIELDS:

Exactly. With a 75/80 vote, or he could say — or a Larry Thompson, Al Gonzales, Larry Thompson, the African-American former deputy attorney general, Gonzales would be the first Latino, or he can go to the Priscilla Owen mold and get into a 52/48 fight in the Senate. And that's going to be brutal.

JIM LEHRER:

Do you have any wisdom to add to this?

DAVID BROOKS:

I hope he talks to us right-wing nut jobs out in Nevada talking to the aliens.

No, I think what he's going to do is pick someone who has been confirmed already, someone who is very familiar. I think this is their logic —

JIM LEHRER:

So that would mean a judge.

DAVID BROOKS:

A judge already confirmed by this Congress, the members of the Judiciary Committee. I think the second thing that's changed because of this is that doesn't — it no longer has to be a woman. And then the third thing —

JIM LEHRER:

Why not? Why not?

DAVID BROOKS:

Because I think they've demonstrated their gesture, and the thing that matters most, as Jan said, is competence, and having that strong legal philosophy, where everyone can say this is a really smart, good person.

And then just the final thing —

JIM LEHRER:

Sure.

DAVID BROOKS:

— the conservative movement now so much wants to get back behind the president. There is a palpable desire. If this guy gives them anybody they can really support, they'll be so much with him, because the rift and the unpleasantness of being against the president for a lot of people was anxiety inducing.

JAN CRAWFORD GREENBURG:

And that's why the White House really believes that now it needs a sure thing. People are ready to get behind this president again. They are euphoric over this withdrawal today, and so they need someone with a committed record, someone they're not going to worry about some speech they may have given ten years ago that sounds —

JIM LEHRER:

It's already been vetted, in other words, some process at least , some public process —

MARK SHIELDS:

One of the Republicans said to me that the first priority had to be confirmable, and the second had to be satisfactory to the conservatives.

JIM LEHRER:

Yeah, yeah. What do you think of what David said about the woman angle, that he's off the hook on that?

JAN CRAWFORD GREENBURG:

That's what my sources are tell me today, too —

JIM LEHRER:

Is that right?

JAN CRAWFORD GREENBURG:

— that the president is willing to look beyond the very small number of female candidates that he has looked to and have been interviewed in the past.

So the list has — you know, he wanted to nominate a woman for this position. He turned to his trusted adviser, Harriet Miers; he was more comfortable with her than the other two women who were kind of in the running at the very end.

Now that list is opening back up, and he is looking at — and is being advised to — think more broadly.

JIM LEHRER:

Back to the politics of this, do you believe, Mark, and you, David — I'll start with you, Mark — that if — because both of you said, suggested on this program — Senators Leahy and Specter were on this program last night and said this was never going to happen — Harriet Miers was not going to withdraw, the president wouldn't back off — that if the president wasn't doing so badly in the polls as a result of Iraq, as a result of things that may happen tomorrow with the CIA leak case, that he might have hung in there, that his own — his weakness in other areas caused him to finally say okay let's get rid of this one problem at least?

MARK SHIELDS:

Yes, I think power is the perception of power — if enough people think you have power. And they see George Bush's numbers slipping, so there's a greater willingness to establish one's independence, not to confront the president or make life uncomfortable for him, but to establish your independence from him, especially for those who —

JIM LEHRER:

But from his point view.

MARK SHIELDS:

That's right. Or, would we have caved? It certainly isn't characteristic of George Bush —

JIM LEHRER:

That's what I meant — his image —

MARK SHIELDS:

I think they strictly contributed to it in this case.

JIM LEHRER:

Do you agree David?

DAVID BROOKS:

I do agree. I think there was heightened panickiness in the Senate because of just the general atmosphere. But again, I think in the meetings yesterday, I think if they were sure that she was doing really well in the discussions and the preparation for the hearings, had done really well with the questionnaire, I think they would have gone ahead with this. They would have said, we'll carry that week and then we'll be fine, but there just wasn't that confidence in her.

JIM LEHRER:

You heard Margaret ask Senator Brownback if he could confirm the fact that Bill Frist called on the president and said, hey, let's get this thing over with. Can any of you — can you confirm this?

MARK SHIELDS:

I can confirm that he met with Andy Card last night and that the meeting was very candid and said this is going to be a really tough fight and I don't know if he said it's dead, but he laid out just how tough it was going to be.

DAVID BROOKS:

Which is just interesting, because as you say Specter and Leahy were on this program at about the same hour, —

JIM LEHRER:

That's right.

DAVID BROOKS:

— saying exactly and sincerely they thought she was sailing through. So it's interesting that the majority leader had one message and the chairman and the ranking member of the committee had a different message.

MARK SHIELDS:

The other thing is that Harry Reid, the Democratic leader, said this week in private meetings that the — he thought every Republican senator would vote for her. So I mean —

JIM LEHRER:

Every Republican senator would vote for her.

MARK SHIELDS:

So he was sure that she was going to be confirmed.

JIM LEHRER:

Yeah. I remember that, Jan, that everybody was a — hey, remember he introduced her up there on the Hill. Everybody thought that was the kiss of death for Harriet Miers because all the Republicans out in the country would say, wait a minute, if Harry Reid likes her, there's got to be something wrong with her. Do you have anything you would like to add to this?

JAN CRAWFORD GREENBURG:

Sure. I think that added fuel to the overall suspicions by conservatives that she was not perhaps someone that they were too enthusiastic about but, you know, the table kind of turned upside down for the White House because they did not expect this kind of opposition to Harriet Miers. They thought the base would rally around her, you know, support this choice, and she would sail through with Harry Reid's support.

The White House concluded it was going to take a tremendous fight to get this person on the Supreme Court, a fight with many people in its own party. So if it's going to have that fight, people were advising the president, let's make it be about something; let's make it be about someone who is going to change the future and the direction of the court, who has the intellectual heft to go up against those intellectual heavy weights on the left, like Ginsburg and Breyer. That factors into this decision to withdraw this nomination. We're going to have a fight, let's make it be about something and we're going to have a fight.

JIM LEHRER:

Do you guys agree with that?

MARK SHIELDS:

Yeah, I do, and I think that's one of the problems and David's right in the meetings — that they couldn't even in the briefing sessions get her to be a commanding figure and they were fearful —

JIM LEHRER:

A cause, you couldn't rally a cause around her.

MARK SHIELDS:

Right. And they were fearful that when she did get into deliberations that she would be deferential, rather than a leader.

And Clarence Thomas does not do that; Scalia alienates people, so they really do need somebody who can build bridges and make the case.

JIM LEHRER:

Do you agree — you already said that pretty much, right?

DAVID BROOKS:

I did say that, and I agree with myself.

JIM LEHRER:

You agree with yourself (laughing). And they finally came around. Thank you — all three — very much.