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CNN CROSSFIRE

Judicial Showdown

Aired February 16, 2005 - 16:30   ET

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


(BEGIN VIDEOTAPE)
ANNOUNCER: CROSSFIRE. On the left, Paul Begala; on the right, the Reverend Jerry Falwell.

In the CROSSFIRE: the fight over federal judges. President Bush wants Senate Democrats to stop blocking his judicial nominees, but it looks like they are ready to say no again.

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: I have a constitutional responsibility to nominate well-qualified men and women for the federal courts. I have done so.

SEN. HARRY REID (D-NV), MINORITY LEADER: Unless there is something new that I'm not aware of with each of these men and women, we will vote the same way we did in the past.

ANNOUNCER: Conservative religious leader Pat Robertson has a warning for Democrats. They could pay at the ballot box if they keep opposing the president's choices. What's next in this showdown over the future of the federal bench?

Today on CROSSFIRE.

(END VIDEOTAPE)

ANNOUNCER: Live from the George Washington University, Paul Begala and the Reverend Jerry Falwell.

(APPLAUSE)

PAUL BEGALA, CO-HOST: Hello, everybody. Welcome to CROSSFIRE.

Capitol Hill's hardly the OK Corral, but President George W. Bush is clearly looking for a showdown. The president has renominated 12 of the most controversial judicial nominees of his first term. Democrats say they were rejected because they were too extreme. Republicans say they are willing to resort to what they call the nuclear option in order to confirm them.

Joining me today, co-hosting on the right, the Reverend Jerry Falwell.

Reverend, good to see you again.

JERRY FALWELL, GUEST CO-HOST: Hello, Paul.

BEGALA: Thank you for filling in.

(CROSSTALK)

BEGALA: Mr. Novak is off planning the vast right-wing conspiracy, but thank you for feeling in.

(LAUGHTER)

FALWELL: Yes.

BEGALA: And now we will start, as we always do, with the best little political briefing in television, the CROSSFIRE "Political Alert."

Well, conservatives, from Fox News' Brit Hume to former Education Secretary William Bennett, have claimed recently that Franklin Delano Roosevelt wanted private accounts to gradually replace Social Security. But last night on MSNBC's "Countdown With Keith Olbermann," James Roosevelt, FDR's grandson, himself a former associate commissioner of Social Security, called the claim -- quote -- "an outrageous distortion" -- unquote -- and asked for -- quote -- "a retraction and an apology, maybe even a resignation" -- unquote.

FDR did, indeed, call for phasing out an initial portion of Social Security for people who got benefits, but were too old to pay into the system back when it was created in the '30s. And that has been phased out, of course. And FDR did look forward to investment accounts in addition to Social Security, but not to replace it. There's a big difference.

Personal accounts in addition to Social Security would supplement guaranteed benefits. President Bush's private accounts would supplant them. To suggest that FDR would have supported Mr. Bush's privatization scheme is simply dishonest.

FALWELL: Well, Paul, I don't know what President Roosevelt really said or did. And I -- I have difficulty believing Keith Olbermann and James Roosevelt, because both of those are anti-Bush men.

But suppose FDR did not want private accounts.

(BELL RINGING)

FALWELL: I think it's irrelevant. This is a new day. This is the 21st century. And I think people today are more astute in looking at the stock market and should be trusted to invest their own money any way they please.

BEGALA: That's a different argument from invoking -- I can't argue -- I mean, I disagree with what you say, but at least it's a fair argument. But to try to put words in a dead president's mouth is unfair.

FALWELL: Bills were introduced in Congress today calling on President Bush to expand embryonic stem cell research. As I have said before, the president was right to ban federal money going to this dangerous and unethical research. He acted to protect unborn children, the most innocent and the voiceless in our (INAUDIBLE) It's not a surprise to me to see liberals like Ted Kennedy backing the bill. But it is a disappointment to see Senator Arlen Specter listed as a co-sponsor along with Kennedy.

Specter told me face to face that he would support the president's agenda all the way. He's chairman of the Senate Judiciary Committee. We had him nailed to the wall for a while, but he made some dumb statements. And then we backed away based upon his word. Now that he has the job, it certainly looks like he's turning his back on one of the major tenets of the Bush administration.

We in the pro-life community will continue our commit to defend life. And I want to remind Mr. Specter that he should keep his commitments, too.

BEGALA: Reverend, let me ask you, did he particularly promise to side with you on stem cell research...

(CROSSTALK)

FALWELL: Well, not on stem cell research. But what he said was that he would -- whatever the president's agenda was, he would not bother that in the Judiciary Committee. He would send every nominee of the judge to the full floor for a vote.

(BELL RINGING)

FALWELL: And I look on this as a pro-life issue. I look on this as part of the president's agenda. And for him to join Ted Kennedy I think is a betrayal of...

(CROSSTALK)

BEGALA: I'm sorry to go over the gong, but I want to ask you, if he in fact does support stem cell research and oppose President Bush and you on this, will you all move against him in the Senate Republican Conference?

FALWELL: I'm not going to say that. I -- you know, I don't like to do any threats. It is just that when somebody gives his word on something and says to all of us, including Jerry Falwell, face to face, on the telephone and other ways, that, I will be supporting this president with his agenda, I sort of left there saying, that's a good deal and I'm with you.

BEGALA: Fascinating. I always love a fight within the Republican Party.

Well, anyway, speaking of the Republicans, a very prominent Bush Republican had a run-in with the law last night. Kid Rock, the diehard Republican and a Bush supporter, believe it or not, was taken into custody by police in Nashville for allegedly beating up a deejay in a strip joint. Who would have thought? (LAUGHTER)

BEGALA: Mr. Rock, whom "The New York Daily News" says is dating a porn star and never goes anywhere without a pint of bourbon in his back pocket, likes to perform on stage with a sliced open American flag around his sweaty, scrawny neck.

He has written songs with such charming titles as "You've Never Met a 'Blank Blank' Quite Like Me," with such inspirational lyrics as -- quote -- "I met the president when I was half-stoned" -- unquote. He's also got a song that suggests former first lady Barbara Bush is a prostitute. So, tell me, red state Republicans, who would you rather have your children listening to, a Democrat like Bruce Springsteen or a Republican like Kid Rock?

(LAUGHTER)

(APPLAUSE)

FALWELL: Boy, you got me on this one.

BEGALA: I didn't think you would defend him.

FALWELL: You got me on this one.

Kid Rock, there was a rumor that he was going to perform at the inauguration. And I, like a few million other social conservatives, wrote letters and made phone calls. I don't know if he was going to be there or not or if we had anything to do with it. But I'm glad he didn't show up. I would much prefer you guys had Kid Rock and a few others.

(BELL RINGING)

BEGALA: We don't want him.

FALWELL: And I will him to you.

(LAUGHTER)

BEGALA: We don't want him, Reverend. Thanks, though.

FALWELL: There's been an interesting development here in Washington. A Democrat, of all things, and a Republican announced the formation of a Civility Caucus in Congress. We need some of those in Baptist Church deacon boards.

(LAUGHTER)

FALWELL: They want to promote civility on Capitol Hill, which is definitely a noble cause.

Getting rid of all the fighting, the anger, the rancor would make it easier to get things done in Congress. But I worry that it could be outside the realm of possibility. Some people in Congress will work very hard to keep anything positive from happening. And that makes me wonder whether civility will ever have a hope of winning the day.

What do you think?

BEGALA: I think it's -- when I hear conservatives now call for civility, I think of when Mahatma Gandhi was asked what he thought of Western civilization. He said, I think it would be a good idea.

(LAUGHTER)

BEGALA: I am struck that there was no one more uncivil, frankly, then some of your cohorts on the right to my old boss Bill Clinton when he was in office. Now that we have a Republican president, we have to be nice to him?

I do always call the president by his name. I don't call him, say, a scumbag, as Dan Burton, Republican congressman, called President Clinton. So I do think a little more civility would be welcome.

FALWELL: You do a lot better than your buddy James Carville. I'll give you A-plus and give James an F-minus.

(LAUGHTER)

FALWELL: But the fact is that this president, nobody -- and you are not a part of that -- I'll acknowledge that -- nobody has gone through more hate-mongering than George Bush has from the left.

(BELL RINGING)

BEGALA: Did you miss the guy who preceded Mr. Bush?

FALWELL: Well, Ted -- I'm sorry, Bill -- Bill Clinton probably brought a little bit of it on himself. And there's a lot of people who think the guy ought to be faithful to his wife. But that aside...

BEGALA: And Mr. Bush should be faithful to the country.

(APPLAUSE)

BEGALA: Just so -- well, anyway, so much for civility. I for one stand against it. That's why I host CROSSFIRE.

Well, anyway, President Bush and Senate Democrats are about to resume their battle over judicial nominees. The president is determined to push his men and women through, despite strong objections from the Democrats. We will debate the fight and its impact on the courts in a moment.

And, later, do you like to cook and can you stand the heat in a very visible kitchen? If so, President Bush may just have a job for you. It could be the first job he creates in his presidency.

Stay with us.

(APPLAUSE) ANNOUNCER: Join Carville, Begala and Novak in the CROSSFIRE. For free tickets to CROSSFIRE at the George Washington University, call 202-994-8CNN or visit our Web site. Now you can step into the CROSSFIRE.

(COMMERCIAL BREAK)

(APPLAUSE)

BEGALA: Welcome back to CROSSFIRE.

President Bush says the United States Senate is not fulfilling its constitutional responsibility to give his judicial nominees an up- or-down vote. Democrats in the Senate respond that they have confirmed nearly all of Mr. Bush's judges, but a handful of extremists simply will not pass muster.

In the CROSSFIRE today to debate this, former U.S. attorney Republican Joe diGenova, and Ralph Neas of the liberal People For the American Way.

(LAUGHTER)

BEGALA: It's good to see you both.

(CROSSTALK)

(APPLAUSE)

FALWELL: Ralph, Senator Leahy from Vermont said in 2000: "I have said on the floor, although we are different parties, I have agreed with Governor George Bush, who has said that, in the Senate, a nominee ought to get a floor vote up or down within 60 days." Senator Biden, Senator Kennedy, Senator Feinstein all at different times have said exactly the same thing.

How come, from Daschle now to Reid, this Senate will not just allow a majority of the U.S. Senate to vote on every candidate the president sends down?

RALPH NEAS, PRESIDENT, PEOPLE FOR THE AMERICAN WAY: Well, Jerry, as you well remember because you were part of the radical right conspiracy on this one.

FALWELL: I still am.

(LAUGHTER)

NEAS: And still are.

During the Clinton presidency, believe it or not, the right wing of the Senate, the Republican leadership, blocked 35 percent of Clinton's circuit court nominees. When Pat Leahy took over, he decided to something about that. And he decreased the number of vacancies from 112 to 40, the lowest vacancy rate in the last 20 years. What I believe is what the founders believe. And that is simple majority in a democracy is sometimes not the only way to do it. In fact, what the founding fathers wanted was to make sure there were checks and balances. In fact, it was simple majority, George W. Bush wouldn't be president of the United States. They wanted checks and balances. They wanted checks and balances.

FALWELL: Well, he only won by three million votes.

NEAS: Not that first time, Jerry. He was 500,000...

(CROSSTALK)

FALWELL: This time.

NEAS: He was 500,000 votes behind.

FALWELL: This is 2005.

NEAS: But we're talking about now. And we're talking about the filibuster, which has been used by 200 years by Republicans and Democrats alike.

And what it does, it provides a check to make sure that, when one party controls the House, the Senate and the White House, about to control maybe the Supreme Court, there's a check. And that's to filibuster. It encourages Democrats and Republicans to talk, to work out a bipartisan compromise, a consensus.

I hope that the president this time around will be more of a uniter, so we can get a consensus and people could all -- could be supported by everyone.

(CROSSTALK)

FALWELL: So you don't care whether the majority of the Senate gets a vote on this or not?

NEAS: Well, there should be a vote.

(CROSSTALK)

BEGALA: Welcome to...

(CROSSTALK)

JOE DIGENOVA, FORMER FEDERAL PROSECUTOR: Delighted to be here.

BEGALA: Good to see you again. Thanks for coming back to CROSSFIRE.

DIGENOVA: My pleasure.

BEGALA: Let me just put a few facts on the table here. I think it was Ronald Reagan who said facts are stubborn things. And they are. Here are the facts. The last four presidents, including this president, so the last three, plus our current president, here's how they stacked up in terms of success rate, batting average, if you will, in judicial nominations. President Reagan had a 93 percent confirmation rate with a Democratic Senate, not bad for Ronald Reagan, Republican Senate for the first couple of years. Bush Sr., 79 percent, not quite as well. President Clinton, 84 percent. Bush, 90 percent; 90 percent of the judges he has sent up to the Senate have been confirmed.

Why is he whining?

DIGENOVA: He's not whining, actually. He's insisting on...

BEGALA: He's whining. He's whining like a 7-year-old girl who lost her Barbie.

(CROSSTALK)

(LAUGHTER)

DIGENOVA: What is interesting -- what is interesting is, is that the Democrats changed the rules in 2003. They decided that, for the first time in the history of the United States Senate, they were going to use the filibuster on judicial nominees not just for Supreme Court nominees, but for all judicial nominees.

The president has the worst confirmation record of any recent president on circuit court...

BEGALA: Ninety percent?

DIGENOVA: Now, let me finish -- on circuit courts of appeal, 68 percent. That's much lower than all the other presidents you mentioned. And the reason is, is that the Democrats have decided to create a supermajority, 60 votes, just to bring a nominee up for a majority.

That has never happened before. And that is an absolute outage. And I think the Democrats need to rethink this type of obstructionism, because it will not...

BEGALA: When they're passing 90 percent of his judges, how can they be obstructionists?

DIGENOVA: No, but they are not passing the judges for the circuit courts of appeals. There's only a 68 percentage rate. All the other presidents enjoyed a 90 percent rate in the circuits. And the reason is, is that the Democrats are using the filibuster for the first time in history.

Now, it's true the filibuster has been used on legislation. It has never been used on circuit court nominees, only on Supreme Court nominees once or twice in the history of the country. This is an abrogation of the rules of the Senate.

FALWELL: Well, Tom Daschle's unemployment ought to say something to Senator Reid that the American people don't like this filibustering and this rejection of precedent, 200 years of it.

And it would seem like that Senator Reid would like to keep his job. And I would suspect that, come '06 and '08, some senators who hold your point of view may find themselves looking for a job.

NEAS: Tom Daschle's defeat...

(APPLAUSE)

NEAS: Tom Daschle's defeat had nothing to do with respect to judicial nominations.

FALWELL: Oh, you're just dreaming.

NEAS: It had everything to do with the war on terror and the international situation and many other issues.

Joe diGenova is totally giving the wrong facts to the American people right now. There of course have been three filibusters with respect to the Supreme Court. He is right about that. Fortas was defeated in 1968. And then Rehnquist was filibustered in 1971.

(CROSSTALK)

DIGENOVA: I said it's been used for Supreme Court nominees.

NEAS: Fourteen different times before the Bush presidency, there were Republican and Democratic filibusters. Bill Frist supported a filibuster in 2000 against Richard Paez. There have been 14 filibusters before 2000. It's been commonly used for decades.

DIGENOVA: Paez was confirmed, by the way. Paez -- he got a vote, which is what the president wants. He wants a vote.

NEAS: Joe, that was not what you were saying.

(CROSSTALK)

DIGENOVA: ... was confirmed. Paez was confirmed. How can you say sure there was a filibuster -- sure, there was a filibuster. And he was confirmed.

NEAS: A filibuster has nothing to do with respect to whether it eventually is confirmed or not.

(CROSSTALK)

DIGENOVA: Let me tell you something. If you're going to make that argument, I wouldn't cite Paez. He was confirmed by the United States Senate. For heaven's sake, don't cite a judge who was confirmed.

(CROSSTALK)

NEAS: Republicans -- Republicans...

DIGENOVA: That's all the president wants, is a vote.

NEAS: The Republicans and the Democrats have many times filibustered lower court nominations, as well as Supreme Court nominations...

DIGENOVA: It's rare. It's rare.

(CROSSTALK)

DIGENOVA: Now it's your rule. Now it's a rule.

(CROSSTALK)

DIGENOVA: Now it's the rule.

BEGALA: We have got to take a break right now, guys. The one rule is, we still got to sell soap. So hang on just a second.

NEAS: Soap is good.

BEGALA: Soap is -- it's very good for you.

(CROSSTALK)

BEGALA: When we come back, we're going to tell you what Republicans in the Senate are beginning to call the nuclear option. We'll describe it for you in a minute.

And then, the head of the CIA offers a strong warning about al Qaeda's efforts to attack the United States. Wolf Blitzer will have the latest on that right after the break.

Stay with us.

(APPLAUSE)

(COMMERCIAL BREAK)

WOLF BLITZER, CNN ANCHOR: I'm Wolf Blitzer in Washington.

Coming up at the top of the hour, an ominous warning from the CIA director, Porter Goss. Terrorists may have access to enough nuclear material to make a bomb. We'll talk with Senate Intelligence Vice Chairman Jay Rockefeller.

British police conduct a new search in the Paris tunnel where Princess Diana died.

And it's now official. The National Hockey League cancels the rest of the season. It's not just the owners and players who are feeling the impact.

All those stories, much more, only minutes away on "WOLF BLITZER REPORTS." Now back to CROSSFIRE.

Welcome back to CROSSFIRE. President Bush may not be much an environmentalist, but he is certainly recycling his judicial nominees. Mr. Bush has sent to the Senate a list of potential judges that were rejected in his first term, hoping they will fare better in his second.

Joining us to debate this, Joe diGenova, former federal prosecutor, U.S. attorney and independent counsel, and Ralph Neas. He is the leader of People For the American Way.

Joe, we -- let me show you a brief piece of videotape that our president said on -- on Valentine's Day, actually, and then read you about one of his judges that I don't think quite comports with his own stated standards. Here's our president.

(BEGIN VIDEO CLIP)

BUSH: I have a constitutional responsibility to nominate well- qualified men and women for the federal courts. I have done so.

(END VIDEO CLIP)

BEGALA: First off, the Constitution doesn't speak to qualification, but we'll give him a pass on his constitutional law.

Here's one of these nominees he has sent back up. Well-qualified is how he describes them. "Thomas B. Griffith," "The Washington Post" reported, "President Bush's nominee for the federal appeals court in Washington state, has been practicing law in Utah without a law license for the past four years, according to Utah state officials."

That's well-qualified? He doesn't even have a license? He couldn't even be a plumber without a license. Come on, Joe. He's not qualified. He's some right-wing hack.

DIGENOVA: Actually, Mr. Griffith is very well-qualified. And my own view of that is, is...

BEGALA: Without a license?

DIGENOVA: ... that that's something for the Senate to consider. And if they want to reject him for that reason, they should.

But let me tell you what is going on here. That is an example...

BEGALA: Wait a minute. Does that pass the smell test of well- qualified? The president said well-qualified.

DIGENOVA: Oh, I don't think there's any question Mr. Griffith is qualified. There isn't any question about that.

BEGALA: Without a license. Would you fly in a plane without a licensed pilot?

(LAUGHTER)

DIGENOVA: Absolutely not. And that's not the issue. The issue is, let's get up-or-down votes on these people. If people don't like that, they can vote against him.

But here's what is going on. There's a judicial emergency in the Sixth Judicial Circuit Court of Appeals. For the last eight years, Carl Levin has been blocking every nominee for the...

BEGALA: The senator from Michigan.

DIGENOVA: And you know why? He has blocked every nominee, and there are four of them now pending. There is a judicial emergency in that circuit because there aren't enough judges, because he wants a relative to be on the Sixth Circuit. That's the game the Democrats are playing. Now, let's have up-or-down votes on people and stop this nonsense.

(APPLAUSE)

FALWELL: Ralph, I was talking with Senator Frist some time ago. And he made mention to a number of us that the nuclear option was more than an option to him, that if, in fact, it came down to the wire, where the Democrats have decided a majority will no longer rule in this country and there will be no up-and-down votes and so forth, he will in fact impose the nuclear option. And there will be a 51-vote necessity only. When that happens, you guys are dead in the water, and you ought to be.

(APPLAUSE)

NEAS: Three quick facts on the table.

During those Clinton years, during those last four years, 60 judges were blocked by the Republican leadership. They weren't allowed a vote, either a filibuster vote or a final vote. They were blocked in committee. They weren't given a hearing or a vote.

FALWELL: I'm talking about next week.

NEAS: No. 2, don't talk about Carl Levin eight years. During the first four -- last four years of the Clinton administration, they wouldn't allow someone from Michigan to have a hearing or a vote. Four years in a row, they would not allow four nominees to be even heard.

The filibuster was by the Republicans, not by the Democrats.

FALWELL: I'm for the nuclear option.

NEAS: With respect to the nuclear option, it's not going to happen.

FALWELL: And I hope you guys...

NEAS: You know why it's not going to happen?

FALWELL: Why... (CROSSTALK)

NEAS: Because the Republicans will provide the votes against it. All the Democrats...

FALWELL: They will never do that.

NEAS: McCain has came out against it. Snowe has come out against it. Chafee has come out against it.

FALWELL: We have enough votes.

NEAS: But you know why? Because the thoughtful institutional conservatives are saying, we don't want to turn the Senate into the House of Representatives.

FALWELL: You're the guy who said Bush was going to lose November 2.

(CROSSTALK)

NEAS: Jerry, don't interrupt me.

(APPLAUSE)

FALWELL: You are the guy that said Bush would lose November 2. He won.

(CROSSTALK)

BEGALA: I'm going to have to interrupt both...

(CROSSTALK)

BEGALA: Ralph Neas from People For the American Way, thank you for joining us. Joe diGenova, former U.S. attorney and independent counsel, thank you both for debating this out.

(CROSSTALK)

BEGALA: We'll be back to the topic of judges, believe me.

But, in the meanwhile, are you looking for a job, perhaps in, say, the culinary field? Well, perhaps one of the most visible kitchens in the world has an opening. We'll explain next.

(APPLAUSE)

(COMMERCIAL BREAK)

BEGALA: Welcome back to CROSSFIRE.

The White House is looking for a new chef. The last chef, Walter Scheib, was on the job for 11 years, a long time and in a difficult job. But there were only four state dinners held during President Bush's first term. And first lady Laura Bush says she plans on doing a lot more entertaining in the White House in the president's second term.

The chef, of course, will handle everything, from the president's famous peanut butter and jelly sandwiches, all the way up to elaborate and formal state dinners for visiting heads of state.

Reverend, what do you think? How would you look in one of those big chef hats?

FALWELL: I don't want the job.

(LAUGHTER)

FALWELL: I don't want the job. It's -- I think Laura has the right to pick who her cook is. And I could care less.

BEGALA: Well, no, I'm with you on that. She has a perfect right to do it. And I hope she gets the best person in the world.

From the left, I am Paul Begala. That's it for CROSSFIRE.

FALWELL: And from the right, I'm Jerry Falwell. And go, Bush.

(LAUGHTER)

BEGALA: Stay with us.

FALWELL: "WOLF BLITZER REPORTS" starts right now.

(APPLAUSE)

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