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CNN Burden of Proof

Power Shift in the U.S. Senate

Aired May 25, 2001 - 12:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
GRETA VAN SUSTEREN, CO-HOST: A Vermont senator sends an emotional message to the nation, leaving his political colleagues behind, and forces a power shift in the United States Senate.

(BEGIN VIDEO CLIP)

SEN. JAMES JEFFORDS (R), VERMONT: In order to best represent my state of Vermont, my own conscience and principles I have stood for my whole life, I will leave the Republican Party and become an independent.

(END VIDEO CLIP)

COSSACK: Today on BURDEN OF PROOF: How a political shift could tilt the scales of justice on Capitol Hill and perhaps force the president to rethink his nominations for the federal and Supreme Court benches.

ANNOUNCER: This is BURDEN OF PROOF with Roger Cossack and Greta Van Susteren.

VAN SUSTEREN: Hello, and welcome to BURDEN OF PROOF.

Yesterday's announcement by Senator James Jeffords of Vermont sent a political shockwave across the country. Jeffords's decision to leave the Republican Party and become an independent switches the balance of power in the United States Senate to the Democrats. It's the first time the Democrats have had control since the "Republican revolution" in 1994. Jeffords, a life-long Republican, says with the change he can better represent the people of Vermont. Washington's changing political climate will have an impact on President Bush's legislative agenda. It will also affect the president's appointments to the federal judicial bench.

Joining us today from Capitol Hill, Republican senator Jeff Sessions of Alabama, a member of the Judiciary Committee. Here in the studio...

SEN. JEFF SESSIONS (R-AL), JUDICIARY COMMITTEE: Hey, Greta.

VAN SUSTEREN: ... hello, Senator -- is Ron Klain, a former chief counsel to the Senate Judiciary Committee, constitutional scholar Bruce Fein and professor of government Karen O'Connor. In our back row, Kolry Dotry (ph), Sarah Berger (ph) and Josh Milsepps (ph). First to you, Senator. It happened yesterday, but are you feeling sort of the organizational change? I mean, are people beginning to talk about how there's going to be this sort of shifting of the gears?

SESSIONS: A little bit. The sun did come up this morning, and I think we'll survive this. We're going to lose a great chairman in Orrin Hatch. He did a tremendous job as chairman of the Judiciary Committee. He stood firm for the values he believed in, but was always courteous and fair. I think it'll be a challenge for the new chairman to reach that level of courtesy and leadership.

VAN SUSTEREN: Senator, before we go to sort of the impact of the -- you know, it's going to have on the laws, on the justices and judges, let me ask you this. How is it done sort of mechanically? Do you switch nameplates on your doors, or you switch offices? I mean, what goes on up there?

SESSIONS: You know, that's under discussion about precisely that. Apparently, at the 50-50 -- when we were on 50-50, the Senate staffs were the same on minority side and the majority side. The space, I'm told, in a number of the subcommittees is just as big or larger for the Democrats. So they may not want to change space. But apparently, in some committees, that will not be true, and the new chairmen will be taking over space from the former chairmen.

VAN SUSTEREN: Bruce, in the beginning I said it was the first time that the Democrats are taking control in a number of years. It's not quite right. Something happened in January, right?

BRUCE FEIN, CONSTITUTIONAL LAW SCHOLAR: Yeah, January 3, when the vice president was still Al Gore, the Democrats organized the Senate. They had 17 days, a brief flirting with power, and then things switched to Senator Sessions and his party on January 20, with the inauguration of George Bush and Dick Cheney. So we've had at least one dress rehearsal for what's occurring right now.

But I would like to offer just a quick example of how pronounced the impact could be on judicial nominations and confirmations. In 1986, when the Republicans controlled the Senate Judiciary Committee, and Strom Thurmond was chairman, Justice Antonin Scalia passed through by a unanimous vote in the Senate. The next year, when Judge Robert H. Bork was nominated to the Supreme Court, although he had voted the same with Scalia as a judge, 400 out of 404 times, and the four discrepancies, he was more liberal, he went down to defeat when Joe Biden and the Democrats ran that Judiciary Committee. So that's just exemplary of how pronounced this impact could be on the kind of judges we see populating the bench.

VAN SUSTEREN: Karen, do you agree with Bruce, big change in the type of judges that are at least -- unless something happens, unless Zell Miller or someone else switches, at least for today?

KAREN O'CONNOR, PROFESSOR OF GOVERNMENT, AMERICAN UNIVERSITY: Not necessarily the type of people who are nominated, but certainly the way that the whole process is going to proceed I think will be markedly different. We see what happened with Bush coming out and having 11 circuit court judges. He's recognized the importance of circuit court judges.

During the Clinton years, Bill Clinton was unable to get nearly as many people on the courts of appeals, which are very much more important, oftentimes, than district courts. So I think you've seen Bush have an appreciation and really trying to act early on to try and get his nominees through. But I do think, once we have the changes of offices that we're expecting here soon, after the 5th, you will see a very real difference in the ability of people to get through.

VAN SUSTEREN: Ron, you know, it's sort of extraordinary, when you think about it. I mean, the ideal candidate should be a man or woman who is committed to the law and has a good heart and a good mind. Yet it's -- the process does sort of -- you know, who's in power does sort of manipulate who gets through.

RON KLAIN, FORMER SENATE JUDICIARY COMMITTEE COUNSEL: Well, I think President Bush made a mistake by moving so far to the right with his presidency, both on judicial nominations and a whole range of issues. And I think what happened yesterday is the comeuppance for that mistake, with Senator Jeffords saying, "I can't be part of this party that is so far to the right."

The question now is what happens with President Bush's agenda both legislatively and on judicial nominations.

VAN SUSTEREN: But isn't...

KLAIN: If he moves to the center, I think he can still have success. But he's going to have to replace the lip service about being bipartisan with some actual actions that are bipartisan.

VAN SUSTEREN: But Ron, when you talk -- when you talk about -- the Senate's role is advise and consent. You know, I mean, like -- you know, sort of...

KLAIN: But there's "advise" in there, too, Greta. And I think that's the first word in "advise and consent." And there's a tradition of senatorial advice in both parties, particularly when the Senate is as closely divided as it is. Look, you have three large states in this country -- New York, Florida and California -- where there are...

VAN SUSTEREN: And now we see Vermont has the biggest impact!

KLAIN: Right.

VAN SUSTEREN: It may not be the biggest, but Vermont's...

KLAIN: Where there are -- where there are...

VAN SUSTEREN: ... the most powerful.

KLAIN: ... two Democratic senators. And I think if President Bush wants to get his judicial nominees in those states and many others, he's going to have to work with those Democratic senators now.

VAN SUSTEREN: Senator Sessions...

FEIN: Yes, but that's...

VAN SUSTEREN: Let me just ask Senator -- go ahead, Senator.

SESSIONS: I would just like to say that we confirmed 377 of President Clinton's nominees. Only one was voted down. Republicans had as many as 55 senators. So now the Democrats have 50, and they think they have the power to just block all nominations? I don't think so. I believe they -- the Republicans are entitled to the same fair treatment that their nominees got, only one being voted down, only 41 left pending when President Clinton left office, about the same number when President Bush left office.

VAN SUSTEREN: But you know, Senator, I mean...

SESSIONS: So I think this is overdrawn a bit. I do believe -- agree with Bruce that on a controversial nominee, being the chairman of the committee, the committee can be orchestrated in a way that makes it a lot more difficult for the nominee, if you -- if your majority is in control of the committee.

VAN SUSTEREN: Senator, we all agree it should be fair. Both sides, Republicans, Democrats, should have a fair shot at this. But as a practical matter, when you lose the power, there's a lot of gamesmanship that goes on that does torpedo nominations. Right or wrong?

SESSIONS: We had 55 senators, and we gave President Bush [sic] a fair hearing on his nominees and confirmed virtually every one of them. I voted for 95 percent or more of them. So we expect the same in return, and I think we'll get it. That's the great tradition of the Senate. If the nominee is a good person, a good lawyer, committed to the law, I think they'll have a good chance of being confirmed.

FEIN: And Greta, could I just add -- there's simply...

VAN SUSTEREN: Hold that thought. We've got to take a break.

Just hours after the Jeffords announcement, a solicitor general nominee is confirmed despite an active investigation. Is this playing by the rules?

(BEGIN LEGAL BRIEF)

New York Mayor Rudy Giuliani has appealed a judge's ruling that bars his girlfriend from Gracie Mansion. Giuliani's estranged wife and his two children still live in the mansion.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

VAN SUSTEREN: Yesterday the United States Senate confirmed Ted Olson as the next solicitor general. He will argue on behalf of the government to the United States Supreme Court. The Olson vote was brought up hours after the Jeffords defection, a move which will soon shift the power of the Senate to the Democrats.

Ron, any problem with that sort of quick Ted Olson to the floor to vote on?

KLAIN: Well, I -- I -- you know, I think it was the Republicans' call. They wanted to do it. It was their last act, and I think they were certainly within their rights to do it. I think the important thing going forward -- I actually agree with Senator Sessions about this -- is that the Judiciary Committee treat nominees fairly and equally.

I think that -- I would disagree with Senator Sessions. I think a lot of the Clinton nominees were made to wait an unconscionable amount of time. They weren't voted down, they simply were never given a vote at all. And I'm sure that Senator Leahy or Senator Biden, whichever one chairs the Senate Judiciary Committee, will be as fair or fairer than Senator Hatch was to those nominees when he chaired the committee. I think -- I think you will see fair treatment by the Democrats for the Republican nominees.

FEIN: And an additional defense was that the Democrats could have filibustered this, because this was a filibuster vote, and 47 is more than 40, which is what you need to hold this up indefinitely. So the Democrats did withhold a power play that they could have exercised, and that's to their commendation.

VAN SUSTEREN: Karen, what do you make of the sort of all the problems that Ted Olson had getting through? Is it politics, or is that just, you know, good investigation into people that we look at for positions in government?

O'CONNOR: Well, Ted Olson is one that really I don't think hit the radar screen for most people in the American public. Certainly, interest groups didn't mobilize any ways like they would have done on the Bork nomination I think because, to begin with, people didn't think there was that much problem with him until a lot of the Arkansas stuff happened.

It's going to be very interesting to see if when the Democrats take control of the Senate, if they decide to have the kind of investigations of individuals that frequently you found the Republicans doing with the Clinton administration. So for example, if people wanted to get acrimonious, given that the hearing was not completed or the investigation on the whole Ted Olson matter, one could possibly expect -- not necessarily would I hope this to happen -- that people would investigate him afterwards to see what happened.

VAN SUSTEREN: Senator, I'm curious. Through the Judiciary Committee comes the federal judges, as well as the Supreme Court, and also the solicitor general. When we look at candidates for solicitor general of the United States and candidates for the Supreme Court, do you apply the same sort of review? SESSIONS: For -- I think the Department of Justice nominees are not lifetime appointees. They serve the president of the United States. The president of the United States chose Ted Olson to represent him in the most momentous case of his career, the Al Gore- George Bush contest in the Supreme Court. That's the man he had confidence in. Solicitor general really just is an advocate in court. He has a tremendous record. So I think it's a different respect given...

VAN SUSTEREN: Let me...

SESSIONS: ... to an executive nominee than to a lifetime appointed nominee of an independent branch like the courts.

VAN SUSTEREN: Let me tell you what caught my attention, Senator. There's no question Ted Olson a great lawyer. He's done very well in the Supreme Court, but up there 15 times, a very smart man. But here's the thing that sort of caught my attention. He was investigated himself by an independent counsel, Alexia Morrison, and she concluded that he should not be prosecuted, there was insufficient evidence, that he was legally or literally correct, but not forthcoming, something that we heard about when Ken Starr investigated the president of the United States.

I got to tell you, it caught my attention. What do you make of that?

SESSIONS: Well, Ken Starr did not complain about the president not being forthcoming. The president was complained of because he told falsehoods. That's the problem and -- but anyway, I -- I don't know...

VAN SUSTEREN: But I mean, we had that whole definition of...

SESSIONS: Over the years...

VAN SUSTEREN: ... what it -- what is the definition of "is," is, the same thing that sort of haunted Ted Olson, I thought.

SESSIONS: I'm not in this nihilistic view of the law.

FEIN: Yeah, but I think also...

SESSIONS: There are certain things you can...

FEIN: ... credit -- you're overlooking -- it was a federal judge, independent federal judge who found that the president lied and was misleading, not Ken Starr. And that's why Mr. Clinton ended up with a sanction of contempt and a hearing in the Arkansas bar for discipline. That was a judgment not made by...

VAN SUSTEREN: You know what? I'm not sure...

FEIN: ... Ken Starr.

VAN SUSTEREN: You know, I got to tell you, is that I'm not so -- I mean, look, the truth is that we lawyers always say "Answer the question literally, legally correct." I'm not so sure Ted Olson had an obligation to go beyond answering it literally legally. And I'm not so sure the president had to. I mean, there's this whole other layer of being forthcoming. And you know, that's what we tell our clients, "Answer it literally correct." But sort of what's good for the goose is good for the gander.

Ron, do you want to get in on this?

SESSIONS: I would just like to say that...

VAN SUSTEREN: Go ahead.

SESSIONS: ... he did answer that question completely and honestly when Senator Leahy asked him about it. There's not one basis to show that his answer was anything but full and correct. That's one of the things that galled me about it. To suggest that he was not accurate when he was accurate really troubled me.

VAN SUSTEREN: Ron, you want to get in this?

KLAIN: No, I think -- look, I think the Olson nomination -- it's done. Whatever it meant, it's over. And I think the important thing is how the Judiciary Committee moves forward to deal with this period of divided government, of a Senate now controlled by the Democrats, a Republican president in the White House, and how they go about processing judicial nominations at this very important, very sensitive time.

VAN SUSTEREN: Senator, you know, I'll tell you, the Judiciary Committee, going back 15, 20 years -- awful brutal to nominees. I mean, what are you -- what are you looking for? What do you want?

SESSIONS: I think we need to be careful about that. I don't think we need to go into the Ashcroft-type situation, which I believe was unjustified. For example, as attorney general, he defended the school system of Missouri against a federal lawsuit, and he was accused therefore of being against integration.

VAN SUSTEREN: No, wait a second. But...

SESSIONS: That was a false charge against John Ashcroft...

VAN SUSTEREN: But wait a second. Let me...

SESSIONS: ... and the hearing was very personal and unfair, I thought.

VAN SUSTEREN: I -- you know what? And I got to tell you, as much as I admire the attorney general on certain issues, I thought that he was very unfair to Ronnie White in terms of his record. And I went through Ronnie White's record, Judge White, and I thought that -- you know, I got to tell you, Senator -- then Senator Ashcroft was very rough on Judge White.

SESSIONS: He was respectful in his comments on the floor. I read them.

VAN SUSTEREN: He torpedoed him! He torpedoed him unfairly. He...

SESSIONS: He stood up...

VAN SUSTEREN: ... mischaracterized his record, in my opinion, having gone through those decisions.

SESSIONS: Well, if you read his -- his speech on the floor, you won't see that he mischaracterized him. I thought it was a fair analysis of them. He had opposition from the sheriffs' association, the National Sheriffs Association, other law enforcement groups in his state, and he didn't feel comfortable in elevating him to a lifetime appointment where he could carry on views on law enforcement that were not mainstream.

VAN SUSTEREN: All right...

SESSIONS: Those were not mainstream opinions.

VAN SUSTEREN: All right, we got to take a break, but I can't resist getting the last word in on that. There were some law enforcement, of course, was supporting Judge White, as well. And not to relitigate that issue.

We're going to take a quick break. We'll be right back. Stay with us.

(COMMERCIAL BREAK)

(BEGIN Q&A)

What are many of the nation's courts doing to attract more citizens to their jury pools?

Providing more comfortable amenities, hookups for laptop computers, big-screen televisions and free sodas.

(END Q&A)

VAN SUSTEREN: James Jeffords was elected to his third term as a senator last November. Although a lifelong Republican, yesterday he announced to the voters of Vermont that he was leaving the GOP to become an independent. Now the power in the Senate will switch hands, as the Democrats take on the leadership positions.

Karen, what other impact besides judiciary you think that the law will sort of experience by this shift in power, at least as long as it lasts?

O'CONNOR: Well, we can see lots of different things, but I really think that the judiciary is the big thing. And I think that we really shouldn't even go past that. Certainly, there's going to be different kinds of laws coming up throughout all of -- all the different committees. But in terms of the immediate impact, I think that the Bush administration is going to be exploring what to do with these next judicial nominees.

VAN SUSTEREN: Ron, I mean, besides sort of the legal aspect, you know, he's going to have to go back at some point and answer to the voters. You worked on Capitol Hill. Do lawmakers have some sort of concern about that? You know, he's going to have to answer to the voters.

KLAIN: Well, I think for Senator Jeffords, he's going to have -- he is going to have to answer to the voters of Vermont, and very often people who switch parties lose at their next election, either in a primary or in the general. I don't know enough about Vermont politics to know about what's going to happen to Senator Jeffords.

I do think, though, that there is going to be a big impact across the board on Capitol Hill, not just in judicial nominations. And I think, particularly for the business community, which had a very aggressive legislative agenda of litigation reform, of certain other kinds of reforms coming out of the Commerce Committee, this is going to make it much more difficult for them to get those things done. They're going to have to approach it in a new way, with a lot more bipartisanship and a lot more working with Democrats. It changes the calculus in a lot of things, not just judicial nominations.

VAN SUSTEREN: Senator, is that true, business reform and -- I guess tort reform is what we're talking about. What about that, Senator? Do things change now?

SESSIONS: Well, I think...

VAN SUSTEREN: At least until the next switch in power.

SESSIONS: Yeah. I -- well, you know, committee chairmen and even subcommittee chairman have the ability to set the agenda and call up certain issues to have hearings on. I'm sure that with the committees chaired by Democrats, they'll call up issues that are not President Bush's primary agenda items, and it will make it more difficult for him to get his message out. So I think that's a big difference.

I do hope and pray that we won't have a historical change in the way we treat judges. And if we treat judges as we have consistently, no matter who controls the Senate, most of the president's nominees will get through.

VAN SUSTEREN: Senator, give me sort of a sneak preview. Take me behind the scenes. Have the Republicans sort of -- have you targeted anybody to sort of, like, bring this back into balance again?

SESSIONS: Oh, I -- you know, the campaign committees have been working on both parties to identify races that could be won, seats that could be picked up. And that'll be intensified. Matter of fact, it may be a good wake-up call for the Republicans and get them more intensely interested in the upcoming elections.

VAN SUSTEREN: Bruce, put on your... FEIN: I think, Greta, the most pronounced effect is going to be on the resort President Bush much more frequently to executive orders to try to circumvent things that he might have been able to get through legislative changes, whether it's on faith-based initiatives or otherwise, because now, whereas with Democrats -- with Republicans in control of both houses, where you're skirting the edge of the law, he could say out of an excess of caution, "I don't want to be accused, like Clinton, of circumventing the process by executive orders." I think we'll see resurrected...

VAN SUSTEREN: Why use executive orders instead of -- why not always use executive orders? I mean, you can skirt all of this.

FEIN: Because I think things have a little more legitimacy and consensus if you go through the legislative process. And executive orders are ways you can get things done fast and immediately, and politicians look in the short run if they have to choose between getting something deferred into a future administration and their own political ambitions.

VAN SUSTEREN: Ron...

SESSIONS: Well, I think...

VAN SUSTEREN: Go ahead.

SESSIONS: ... the Congress needs to stand up and defend itself, regardless of who's president, on some of these executive orders. There are limits to what he president can do. He has certain powers. But we ought to object to abuses of executive orders. It violates the separation of powers.

VAN SUSTEREN: Ron, before we go -- Supreme Court -- do you think that the nominee from the White House will change whoever that person might be, assuming there's a vacancy, in light of the power shift?

KLAIN: Unquestionably. They have to change their calculus. They have to look for a different sort of nominee than they were going to look at before. There was a closely divided Senate before. It was going to have to be someone from the center of the spectrum if they wanted to get him confirmed. But this makes that much more imperative, and it creates much more pressure on President Bush to move to the center on judicial nominees and a whole array of issues.

FEIN: And if the vacancy approaches November of 2002, Bush, in my judgment, will not make a nomination until 2002 elections come in hopes the Republicans will recapture the Senate and then he'll put a true-blue philosophical conservative. So that delay factor has to be considered.

VAN SUSTEREN: And of course, it's always so intriguing to see what happens on Capitol Hill. It's never dull, so to speak. And of course, we may have some more switches. Who knows?

But that's all the time we have for today. Thanks to our guests, and thank you very much for watching. Tonight on "THE POINT": the emotional story of former Congresswoman Elizabeth Furse. She was forced to consider abortion, but the choice put in front of her was the toughest one in her life. Join me at 8:30 PM Eastern.

And Monday on BURDEN OF PROOF, a chilling case from the vault of Mississippi's crime docket. Thirty-seven years after the killings of three Civil Rights workers, no one has been tried for murder. Can justice be served today for a 1964 crime?

Join us again Monday for another edition of BURDEN OF PROOF. We'll see you then.

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