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Supreme Court Battle

President Bush has yet to name a replacement for retiring Supreme Court Justice Sandra Day O'Connor, but Capitol Hill is already speculating who the nominee will be. Following a report on political maneuvering in Washington, Mark Shields and David Brooks assess the state of play.

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  • KWAME HOLMAN:

    William Rehnquist, the 80-year-old chief justice who is battling thyroid cancer, last night put to rest rumors about his immediate future. After returning from a brief stay in a Virginia hospital, Rehnquist released a statement saying he had no plans to retire.

    That, for now, ended speculation President Bush would be considering two picks for the high court. As for the seat that is open, that of Sandra Day O'Connor, there was no shortage of opinions as to the kind of candidate who should fill it. First Lady Laura Bush weighed in earlier this week from South Africa.

  • LAURA BUSH:

    I would really like for him to name another woman. But whether it's a woman or a man, of course, I have no idea, but I'm proud that Sandra Day O'Connor was the first woman on the Supreme Court.

  • KWAME HOLMAN:

    One person believed to be high on the president's list of potential nominees is his longtime friend Attorney General Alberto Gonzales, who was front and center at the president's speech on the war on terror on Monday. They shook hands after the speech, prompting a flurry of picture-taking and more speculation. But at a gathering of his cabinet on Wednesday, President Bush said all options were on the table.

  • PRESIDENT GEORGE W. BUSH:

    We're considering all kinds of people — judges, non-judges. You know, Laura gave me some good advice yesterday, which is to consider women, which, of course, I'm doing. And in terms of the process, we're still consulting with members of the Senate, and I anticipate continued consultations.

  • KWAME HOLMAN:

    Those consultations began on Tuesday, when the president invited Senate leaders from both parties to the White House for an early morning chat about the Supreme Court vacancy. Of course the White House press corps was there, too.

  • Democratic Leader Reid:

  • SEN. HARRY REID:

    This is the longest time in the history of the country where we haven't had a vacancy on the court. This process needs to move forward. And I was impressed with the fact the president said it would; that there will be more meetings, consultation. I think that we're at a time in the history of this country where we've had enough discussion, debate and contention on judges.

  • KWAME HOLMAN:

    Majority Leader Bill Frist:

  • SEN. BILL FRIST:

    We expect a process in the United States Senate that is fair, that treats the nominee with dignity and respect, and that will be conducted in a timely way.

  • KWAME HOLMAN:

    But later that same morning on the Senate floor, Frist warned that Democrats may demand too much say in who the president chooses.

  • SEN. BILL FRIST:

    I am concerned that no amount of consultation will be sufficient for a few of our colleagues in this body. And statements will continue to be, and I say that because co-nomination rather than consultation may be their ultimate goal.

  • KWAME HOLMAN:

    And the next day, while the leaders spoke of cooperation, they also traded barbs, particularly over a possible Democratic filibuster of the president's nominee.

  • SEN. BILL FRIST:

    And history will reflect on the Senate's deliberations: How senators conduct themselves, how we treat a nominee and how we reach a decision. In the past, the judicial nominations process has been marked by obstruction, many times partisan obstruction, and attacks on the character and integrity of nominees.

    I hope that we have put this kind of painful and humiliating process behind us. The fair and dignified nomination process requires civility, requires common sense and some self-restraint.

  • SEN. HARRY REID:

    It's easy to throw words around like "obstructionism," but the fact is that the vast, vast majority of the president's nominees were approved easily. We don't need words like that. We need to look at this in a positive sense.

  • SEN. ROBERT BYRD:

    Make way for the voice of reason.

  • KWAME HOLMAN:

    Meanwhile, the so-called "Gang of 14," seven Republicans and seven Democrats who in May crafted a deal to prevent a Senate crisis over lower court nominees, met yesterday in the office of one of its leaders, Nebraska Democrat Ben Nelson. Nelson suggested the group is prepared to play a similar role in the Supreme Court process.

  • SEN. BEN NELSON:

    The accomplishment is to come together and make sure that the group is holding together, that we have got the same vision that we had at the beginning. And I can say without any question that we are together; we understand what it is we want to do. And many of those accomplishments have already occurred.

  • KWAME HOLMAN:

    Group member Collins of Maine said partisans on both ends of the political spectrum may find themselves disappointed.

  • SEN. SUSAN COLLINS:

    It just amazes me how many outside interest groups are spoiling for a fight. They're going to be very disappointed if the president nominates a consensus choice. They're not going to be able to raise as much money. They're not going to be able to put on as many divisive ads. They're going to be really crushed.

  • KWAME HOLMAN:

    And with no nominee announced, no date set for confirmation hearings and Congress soon to go on its five-week summer recess, it still could be several weeks before action on a new Supreme Court Justice actually begins.

  • JIM LEHRER:

    And back to Mark and David.

    Mark, is it possible that the big, bad, ugly fight that everybody was anticipating over the Supreme Court nominee isn't going to happen?

  • MARK SHIELDS:

    It's possible, Jim. I think the odds were better, quite frankly, when it looked like both Chief Justice and Justice O'Connor were leaving at the same time. That gave the president a lot more political latitude. He could take a moderate conservative and substitute them for Sandra Day O'Connor and then an ardent conservative for Judge Rehnquist.

    But I think right now he's got to make a choice, and that is does he want to choose somebody, nominate somebody who could get past — landslide confirmation? I mean, Judge McConnell from Utah, David wrote about, or Harvey Wilkinson or John Roberts here in the District of Columbia. I mean, those are — those are judges who would sail through. Alberto Gonzales would, too.

  • JIM LEHRER:

    And the whole thing would go away?

  • MARK SHIELDS:

    Or do you want to go to a 49, 50, 51. I mean, do you want to try judges like Ludig or Janice Rogers Brown or Priscilla Owen? I mean, do you want to really kind of — do you go to the base?

    The irony is this, that George Bush has been more of a divider than a uniter. I don't think anybody would deny that. And yet the Republican Party under his leadership has grown. So you can make the case that tactic has worked for the Republicans because there's more Republicans in office today than there were when he was elected.

  • JIM LEHRER:

    Now David, Mark mentioned your column this week. You said, "Mr. President, forget all this politics stuff and go for the best mind."

  • DAVID BROOKS:

    My theory was, you know, the politics people are saying get a fresh face, get somebody who will play to Hispanics, get somebody who will help the gender gap with women. But the Supreme Court nominee is on there for 20 years. And the way —

  • JIM LEHRER:

    Is that the average, 20 years?

  • DAVID BROOKS:

    I think it's getting close to 19, 20, right up there. And the average — or the impact of these people is do they write the kind of opinions that filter throughout the country, that shift the whole frame of the debate, that get law students talking for a generation?

    That's the opportunity you have here. And if you pick someone because they meet some ethnic criteria or a fresh face or some political criteria, you leave all that important stuff, which is the quality of the opinions and the judgments up to chance.

    Now, as to what Mark was saying, I think it's not only left/right. You could pick a very conservative person who will sail through. Michael McConnell is someone the social conservatives really admire but he's also a very serious person, an honest person with a lot of intellectual integrity who liberals like Cass Sunstein have written about positively in the past.

    So it's not only pick conservative moderate, But if you pick a conservative, which Bush is going to do, pick someone with intellectual seriousness that the other side can say "okay, he's respected."

  • JIM LEHRER:

    What do you think the chances of his doing that?

  • DAVID BROOKS:

    Well, you can name — Mark mentioned a lot of people who I think would fit the bill, McConnell, Ludig, Roberts —

  • MARK SHIELDS:

    I think Ludig would be a harder sell, I really do. Wilkinson, Roberts and McConnell. I mean, McConnell, to give you an idea, I think it was intellectual integrity, and he's an ardently conservative man.

    But he was opposed to the 5-4 decision that the court took to put George Bush in power. Now, that's going to cost him conservative support. But he let his reason and the facts carry him. He was against the impeachment of Bill Clinton.

    Now, you know, there's going to be some conservatives who say, wait a minute, what are you doing here? My one argument — a cautionary note about David's proposal which I think, you know, is sort of the SAT approach to judgeships is that —

  • JIM LEHRER:

    Take that. Take that, Brooks.

  • MARK SHIELDS:

    I mean, Earl Warren — the Warren court was historic. Earl Warren was a politician. I mean, most successful —

  • JIM LEHRER:

    Governor of California.

  • MARK SHIELDS:

    Won both parties' nominations, enormously successful governor of California and a vice presidential nominee; failed in '48 but turned out to be a dominant and influential and important Chief Justice.

  • JIM LEHRER:

    Well, Senator Specter suggested that, in fact, a few days ago that maybe the president should look at people who have not been judges, have been something else. What do you think of that?

  • DAVID BROOKS:

    To me that sounds like you're hiring a talk show host. No offense.

  • JIM LEHRER:

    This is not a talk show. I'm not offended.

  • MARK SHIELDS:

    I am.

  • DAVID BROOKS:

    I was making — my colleague joked about competing against Katie Couric. You know, you want somebody who knows the law; you want somebody who knows how to issue opinions. This is not, you're not — you're starting at the top here. You want — I think there's a reason in recent years they've tended to go to judges and high-level judges because you want somebody who's been doing this for a long time.

    You know, Scalia is the model Bush mentioned. Scalia's a good model. You may not think he's too conservative but the guy writes serious opinions; he's had a huge impact on the law. And that's the sort of person you want, whether it's a Scalia or somebody else. You want that substance.

  • JIM LEHRER:

    What about Senator Collins who has emerged as the oracle of reason this week on…and she just said in the second Kwame piece about the big disappointment if this thing works out, if they do something that — select somebody who will go through with a landslide all these interest groups on both sides are all geared up for this fight for fund-raising purposes, for all kinds of —

  • MARK SHIELDS:

    Membership recruitment.

  • JIM LEHRER:

    Membership reasons, retention reasons, what is going to happen to them?

  • MARK SHIELDS:

    Well, you know, there will be a fight. The question is —

  • JIM LEHRER:

    No matter what.

  • MARK SHIELDS:

    But you talk to people on both sides and they're realistic. I mean, talk to folks on the liberal side and candidly they'll tell you off the record that a McConnell or a Roberts, I mean, is going to sail through. A Gonzalez will sail through.

  • JIM LEHRER:

    They'll fight but —

  • MARK SHIELDS:

    Yes, but they know it is not going to be the big thing. They're geared up if it's going to be — both sides will get geared up if it's one of those 51-49 fights.

  • JIM LEHRER:

    What's your reading on Alberto Gonzales as we speak tonight? The attorney general, the conservatives went after him for a while. Are they still after him?

  • DAVID BROOKS:

    A bit, yes. In fact, I think Dobson, James Dobson is still sort of waiting in the wings. I forget who mentioned, who first founded the Great Mentioner, was it Russell Baker?

    And so the Great Mentioner has been very active this week and it's funny. Earlier the week the Great Mentioner was mentioning Alberto Gonzales as almost the inevitable choice but the Great Mentioner shifted away from Gonzales to Joy Clement and other people. So I don't know how seriously to take any of this. But there was an assumption that he was the inevitable pick and now that assumption is gone.

  • JIM LEHRER:

    Would the Democrats vote for him?

  • MARK SHIELDS:

    I think enough Democrats certainly would that it would be a decisive confirmation. He's aided in a strange way, Jim, by the events in London because where he was seen as an Achilles' heel to many Democrats were his opinions on the abusive treatment of prisoners.

    That seems less prominent in people's minds. I think the problem that the president has is they were counting on Rehnquist going first and O'Connor has left them very much at sixes and sevens. They're undecided.

  • JIM LEHRER:

    A quick question: Is this Game of 14 going to have any impact or has their day come and gone?

  • MARK SHIELDS:

    I think they're already having an impact. Susan Collins has got to be careful because there's a great Turkish proverb that "He who he speaks the truth better keep one foot in the stirrup." And she's getting off —

  • DAVID BROOKS:

    That's always been my motto.

    I think the Gang of 14, for the reason Mark was talking about earlier, the groups, remember, when that filibuster fight was going, the groups were really fighting to have the fight over the filibuster.

  • JIM LEHRER:

    They wanted to have it. They needed the money.

  • DAVID BROOKS:

    And those 14 senators run the Senate — groups don't run the Senate. So that sentiment is still alive, and they're sort of the embodiment of it.

  • JIM LEHRER:

    And the president has been saying over and over now that the public interest groups cool it, too, right?

  • MARK SHIELDS:

    I don't get the same thing on the right, Jim. The president is consulting. Let's give him credit. He's consulting more than any time in his administration so the process, he's asking people for suggestions and so forth and the test will be in the product, I mean, whether he comes up with somebody who can enjoy that kind of backing on both sides of the aisle.

  • JIM LEHRER:

    I've got a couple other things I wanted to talk about. I'm just going to mention them, not talk about them. The new deficit numbers; the president takes credit for that. The Democrats say, "no way." Do you agree with the Democrats?

  • MARK SHIELDS:

    I agree, Jim what they did with the budget is to basically say, "we're not going to cover utilities or car payments." As it is everything else looks good.

  • JIM LEHRER:

    Do you think the president deserves to take credit?

  • DAVID BROOKS:

    A chunk of credit.

  • JIM LEHRER:

    He says is tax cuts — okay — well, we covered it after all. Thank you both.

  • MARK SHIELDS:

    In depth.

  • JIM LEHRER:

    In depth. Thank you both.

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