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A look at Battle Over Judges and Filibusters

Aired May 21, 2005 - 19:00   ET


AL HUNT, BLOOMBERG NEWS: Welcome to CAPITAL GANG. I'm Al Hunt, with Mark Shields, Robert Novak and Kate O'Beirne. Our guest is Democratic Senator Edward M. Kennedy from Massachusetts, the liberal lion of the United States Senate. Thanks for coming in, Ted.

SEN. EDWARD KENNEDY, (D) MA: Glad to be here.

HUNT: Great to have you. The Senate began an historic debate that could end any filibusters on judicial nominees.


SEN. BILL FRIST (R-TX), MAJORITY LEADER: It's the partisan, leadership-led use of cloture vote to kill, to defeat, to assassinate these nominees.

SEN. HARRY REID (D-NV), MINORITY LEADER: They want it all. All the say, all the control, all the power. It is their way or the highway.


HUNT: Efforts were made to forestall invoking the so-called "nuclear option" when voting begins Tuesday, but a deal acceptable to both sides so far has proven elusive.


SEN. ARLEN SPECTER (R-PA), JUDICIARY CMTE. CHAIRMAN: The far left and the far right are urging each side to shun compromise. One side shouts "pull the trigger," the other side retorts "filibuster forever."


HUNT: Bob, what is holding up a negotiated settlement?

BOB NOVAK, CNN HOST: Oddly, it's not the appellate judges that the Democrats created this crisis over, blocking 16 of them, they're ready to give in on almost everything, just one or two sacrificial lambs. The problem is the Supreme Court's nominees to come, because the Republicans want some guarantee that, say, Antonin Scalia is named chief justice, they won't filibuster him. And it's very hard to get that kind of guarantee. The Democrats are coming back with counteroffers which really reduce the presidential power to make Supreme Court nominations. So the sticking point in the Supreme Court, not the appellate courts.

HUNT: Is that what it's all about, Ted, the Supreme Court?

KENNEDY: No. First of all, I think Senator Reid has demonstrated that he is ready to look at a reasonable compromise, but I think Frist -- and this is really the White House now making the calls on this -- they are just not ready to do it. I think most people that I talk to don't understand that the Senate has approved 95% of this president's nominees and that the ones that are out there now really are not in the mainstream. This confrontation really comes down to 1600 Pennsylvania Avenue.

It was the president that sent up these nominees at the early part of the year. They would rather pick a fight with the Congress rather than pick judges and it looks like we're going to have to go to the wall.

HUNT: Kate, do you think they'll go to the wall or do you think there'll be a settlement?

KATE O'BEIRNE, "NATIONAL REVIEW": I think there is an outside chance there could still be a settlement, because I think there are some Democrats and Republicans, not too many, in the middle, who are uncomfortable with where this is probably headed. But it's going to be hard for the reason Bob noted. These six Democrats who are talking settlement are unwilling, nor can they deliver -- a promise not to filibuster Supreme Court nominees, they are talking in terms of, well, we won't unless it is an extraordinary circumstance. But of course, liberals find an extraordinary circumstance in every conservative nominated.

I think it is very interesting. What is interesting about the talk of deals is that on one hand, Senator Henry Reid ...

HUNT: Harry Reid.

O'BEIRNE: Harry Reid called these nominees threats to the republic because they are so far outside the mainstream. But then he is willing to make a deal and put them on the bench in any event, which does tell you it's about politics and being driven by these left wing groups.

HUNT: Is that what it's all about, Mark, left wing groups.

MARK SHIELDS, CNN HOST: Left wing groups. And there is no right wing groups involved in this whole thing. I want (INAUDIBLE) but let's get one thing straight, just to correct the historical record. 100-0, Antonin Scalia, confirmed by the United States Senate. I mean, so liberals don't find conservatives -- and that's a smokescreen on Bob's part. There is going to be a great filibuster effort if Antonin Scalia -- Antonin Scalia is a brilliant jurist and would be a disaster as chief justice, so liberals probably ought to be interested in his being chief justice because he can't hold a coalition on the bench. I think the 12 really, with very little encouragement from either leadership, quite frankly, are making a serious effort and I think something might break on Monday, I really do, because I think Kate is right in this sense. There are enough people who do want to avoid the uncharted and potential disaster that awaits.

NOVAK: Just to defend myself on Scalia, Ted's leader, Harry Reid, has said that Scalia is unacceptable because he ...


SHIELDS: No, no, no, he said he would in fact not oppose him.

HUNT: Yeah. Yeah.

SHIELDS: He actually went just the other way.

KENNEDY: Let's get back to what this is really all about. If you read the debates at the Constitutional Convention, the Founding Fathers considered what was going to be the appropriate balance between the executive and the Senate on three different occasions and on two of those three they gave complete authority to the Senate of the United States.

It was only at the last decision, the last eight days, before the Constitutional Convention ended, they said that this was going to be the balance, that the president was going to be able to nominate but we were going to have to approve. The American people don't expect members of the Senate to be a rubber stamp. They expect us to be able to speak for our values and for our views about it.

What we are talking now is changing the rules to basically stifle individual members of the United States Senate to be able to speak out on these. And that is to have to change the rules, the American people don't go for it. That is what ...

O'BEIRNE: What the Democratic senators are doing is preventing -- is preventing senators from expressing their opinions by preventing votes.

KENNEDY: We're not.

O'BEIRNE: There have never been filibusters of judicial nominees that enjoyed majority support. For 214 years, the Senate has with Majority votes.

KENNEDY: You are absolutely wrong Kate. I have listened to (INAUDIBLE) program, and you are categorically wrong. We have seen, I have been on the Judiciary Committee, and I have seen the Republicans bury, effectively, 62 nominees.

O'BEIRNE: Not by filibuster.

HUNT: Kate, when you do it in committee, you don't let them have an up or down vote, it's... KENNEDY: What this is really about and that is the Republicans changing the rules with a power grab so that they are going to be able to own the last aspect of the government. They have the executive branch, the Senate and the House and now they want to own the independent judiciary and they are putting individuals on there that want to repeal -- repeal the Voting Rights Act. They want to also appeal, and they have said, the Americans with Disabilities Act. I mean, this is the extreme. They are not mainstream thinkers.

NOVAK: Let me talk about the practical things that I note, Ted, in the long, long period...

KENNEDY: Tell me what...


HUNT: He's starting to warm me up a little bit.

NOVAK: I mean, inside in the backrooms, you planned this whole plot to keep President Bush's judges from taking the court.

KENNEDY: Ninety-five percent of them, 95 percent, a greater percent than we had with Bush I.

O'BEIRNE: He's got the lowest approval of appellate judges in modern history.

NOVAK: These two women, the Supreme Court justices with tremendous records from California and Texas that they have been denounced by the Democrats on the floor, that right now today, they are acceptable. You can get the six, you can get 10 Democrats to support them.

HUNT: Give Mark 10 seconds.

SHIELDS: Ten seconds. All right. The rules of the Senate are very clear. Bob knows them well, having been here for 50 years. If the Senate requires a change of its own rules, two thirds of the senators. They don't have two thirds of the senators, so they're going to change the rules.

HUNT: That is the final word. Ted Kennedy and the gang will be back with a delay in bringing home troops from Iraq.


HUNT: Welcome back. In press interviews and briefings, U.S. military commanders expressed doubt that Iraqi forces could develop sufficiently to permit a major withdrawal of U.S. troops within the next year. The head of the U.S. Central Command, Army General John Abizaid, said, quote, "The police and the Ministry of Interior are probably behind in terms of sophistication, chain of command, cohesion of leadership and that keeps American embedded trainers and embedded transition teams in the field longer." End quote.

A "Wall Street Journal"/NBC poll showed that 40 percent of Americans feel that the removal of Saddam Hussein from power was worth it. Fifty-one percent said it was not worth it.

Kate, is the concession that it is too early for major troop withdrawals a setback for Iraqi policy?

O'BEIRNE: Al, I don't think so. It's one of those things we hear every two or three weeks, it seems, on a cycle. We have some realists in the senior military leadership on the ground in Iraq. I think they would also tell you that we are slowly moving in the right direction but it is very messy and it is ultimately, of course, up to the Iraqis, including their security forces, but they do maintain, as I said, they are slowly moving in the right direction.

They have to get the politics right. That is a big part of the solution. It is not all just the military and the state of the Iraqi forces. We are noticing that it appears the attacks are increasingly being carried out by foreign elements. It's not looking any longer so much like a homegrown insurgency. That is helpful. But it is very difficult not to respond to bad news and headlines that we see every two or three weeks.

HUNT: Ted, moving in the right or wrong direction?

KENNEDY: Well, first of all, our servicemen have been brilliant and we all want success. But we have to look at this -- we have been in there now two and a half years. Two and a half years. And there is still no plan. There is still no plan. Two and a half years later. And I think this is an extraordinary disservice. Now hopefully this is possible and it is still salvageable. We in the last Defense -- in the supplemental, have finally gotten -- the American people are finally going to have reports about the progress that is made every three months, six months, nine months, in the training of troops.

My wife's nephew is over in Mosul. He is a tailgunner on a vehicle over there. He had 13 weeks training and was sent over there. Why we cannot train people -- we've seen an election. They have the political understanding, it is their country. Why shouldn't they have the military understanding it is their country as well?

If Americans are prepared to go over there and die for it, why shouldn't the Iraqis be prepared to die? How open-ended is our agreement? I think a part of what the problem is, we're being perceived there not as liberators but as occupiers and I think that that is something that has to -- I think the secretary said this last week, a greater emphasis on negotiation. There isn't a military solution to the political problem. There has to be a political solution to it and I think we are awfully late getting there.

HUNT: Bob, you have very good Pentagon sources and they were telling you earlier, months ago, that we were going to be really having significant withdrawals by the end of this year. Has that changed now?

NOVAK: Those people still feel that is the way to go. They feel it is imperative to get the hell out of there. We are losing support at home and the theory of those people is that as Ted says, they are an irritant to the Muslims, having the troops there, and it should be, ready or not, here we go. But the military, it is the uniformed military, they don't want to step out of the situation. They feel the Iraqi troops are not ready. They have to stay there.

I really believe that we have done all we can there and it is time to go and hope that things work out for the better. I have always said Iraq is not going to be Iowa, and I think it's their country and they have got to take care of it.

HUNT: Mark -- I don't -- I just want to celebrate this Quasi- Novak-Kennedy Axis. I have never seen an accord like this. But some of these ...

KENNEDY: We're not quite in the same place because I think what we have to do is have a negotiation where we have to set some goals, we have to negotiate with the Iraqi government, and we have to set some timetables. We're not setting deadlines, but we have to set some timetables and some goals and we -- and that, I think, is what's necessary.

HUNT: Mark, some of these same military officers a couple months ago were much more optimistic than they were this week.

SHIELDS: Al, really (ph), there is a couple of inescapable facts. First is recruitment. Army recruitment is down 40 percent short of its quotas. They're voting with their feet by not enlisting right now, and in part because of exactly what has gone on. This has been mismanaged from the outset. It has been ill-conceived and badly executed. The reality is, the president turns out to be a realist this week when the president says, yes, we didn't have a plan, we didn't have a plan for the postwar period. My God Almighty, thank you Mr. President.

But is it any wonder that we are now seen as occupiers rather than liberators after two and a half years?

HUNT: OK. That is the final word.

Next on CAPITAL GANG. Is Ted Kennedy's favorite current DNC Chairman Howard Dean, is his mouth roaring too much for Democrats?


HUNT: Welcome back. Democratic National Chairman Howard Dean talked about House Majority Leader Tom DeLay at the Democratic State Party Convention in Massachusetts.


HOWARD DEAN, DNC CHAIRMAN: I think Tom DeLay ought to go back to Houston where he can serve his jail sentence down there courtesy of the Texas taxpayers.


HUNT: On the convention floor Representative Barney Frank told the "Boston Globe," quote, "I think Howard Dean was out of line talking about DeLay. The man has not been indicted. I don't like him. I disagree with what he does. But I don't think you in a political speech talking about a man as a criminal or his jail sentence."

Asked about his comments prior to his next speech in Phoenix, Dean told the "Arizona Republic" quote, "There is corruption at the highest level of the Republican Party and they are going to have to face up to that one of these days because the law is closing in on Tom DeLay." End quote.

Mark, is the DNC chairman becoming an embarrassment to his party?

SHIELDS: No, he is not an embarrassment. Did he say something wrong there? Absolutely. Has he had a couple of verbal gaffes? Sure. But I think Howard Dean, whatever else once (ph) is done, he was absolutely right about this war and that touches an awful lot of people in the Democratic Party. Secondly, Al, I'll tell you this, he is reaching out to Democrats and other voters in those red states that have been written off in the last two presidential campaigns as a matter of reality and pragmatism. I think that is a step in the right direction.


HUNT: I suspect you view it a little differently.

O'BEIRNE: I have heard Howard Dean say that that's what his mission is, to reach out to those voters, to grow the party. But when you listen to what he says, he visits red state America and calls Republicans evil, corrupt, brain dead. He delivers these blue speeches in red state American. It seems to me that while Ken Mehlman and the Republicans are evangelizing with respect to the Republican Party, Howard Dean is singing to choir. I'll not the secular choir. He seems to be reaching out to Michael Moore Democrats, enthusing them, and I would have thought he learned in November, Michael Moore Democrats, there ain't enough of them to win elections.

HUNT: All right, Ted, Barney Frank or Howard Dean?

KENNEDY: Well, I think everyone knows that Tom DeLay is up to his knees in ethical and legal issues. That's no mystery. Maybe he could have used other words, but I think Howard Dean is doing a first rate job. He has traveled the country. He is really willing to take on the tough issues. They're looking for someone to take on and speak for the Democrat Party. He's working on organizations, he is giving help and support to party-building in states that haven't got an infrastructure. I think he is a breath of fresh air.

Sure, once in a while he may overstate or misstate a particular situation but I think he is working hard, he is doing well, he is attracting a lot of support. I think he is doing a good job.

HUNT: I think the answer was that both Howard Dean and Barney Frank are friends of Ted Kennedy. NOVAK: Teddy is a good party man. He always has been. Let me tell you, this Dean is a disaster for the Democratic Party. I have talked to people privately in the party, they don't think he is going to last this year. He is going around the country saying nonsensical things, saying vicious things about putting a man in prison before he has ever been indicted for anything.

He is slipping in fund raising and he just -- there is an A.P. story that came out yesterday that said I got in trouble because I wouldn't convict Osama bin Laden, maybe I've learned something. Comparing the House majority leader and Osama bin Laden is disgraceful, and if a Republican did that you would rail, pull out a railroad train out of town.

SHIELDS: What he's talking about here, let's get it straight. When Saddam Hussein was captured and TV networks did specials and magazines gave it the cover, as the big item...

HUNT: The turning point...

SHIELDS: The turning point of the war. That's right. Americans are no safer as a consequence. Well, tell that to the 1,400 Gold Star mothers (INAUDIBLE) that Abizaid (INAUDIBLE)

NOVAK: We're talking about Howard Dean.

SHIELDS: I'm talking about Howard Dean. That's what he was (INAUDIBLE)

NOVAK: We're talking about Howard Dean and he's comparing Tom DeLay and Osama bin Laden. Do you compare them?

SHIELDS: I'm not comparing the two.

NOVAK: Okay, thank you.

KENNEDY: Bob, is that what that statement says?


HUNT: Do you sense any disgruntlement in your party ...

KENNEDY: I don't, no. I mean, I find in traveling around, I haven't traveled extensively. He is trying to work, travels every place, he made a good speech up in Massachusetts. He might have taken a different choice of words. I think he has been doing well. He has been raising resources and doing well and putting it back into local organizations. That's what this...

NOVAK: Why is he afraid to debate Ken Mehlman. He's stays on television with nonsense.


SHIELDS: Wait, wait, wait. He's going on television with Tim Russert. I'd say this -- I'd sure as heck rather face Ken Mehlman than Tim Russert and anybody in Washington would.

NOVAK: Russert asked him to go on with Mehlman and he refused. He is afraid of him.

SHIELDS: Bob. Bob. What are you smoking, Bob? Howard Dean is not afraid. Maybe -- listen, he is not afraid -- I don't know what he is afraid of. He is not afraid of Ken Mehlman who is evangelizing.

HUNT: Kate?

O'BEIRNE: The answer was for the November elections was not a Northeast liberal who is going to go around and insult all the voters in every state that John Kerry didn't carry, which seems to be what Howard Dean is about.

HUNT: Mark, does it matter who is the DNC chairman?


SHIELDS: I'll tell you -- I'll you this, Al, If 2006 heads the way it is looking right now, with the Republican Congress having the worst ratings of any Congress since 1994, I'll tell you, Howard Dean is going to look like Mark Hannah (ph) and Jim Farley (ph) on Election Day 2006.

NOVAK: It doesn't matter if you have the worst choice you can have.

KENNEDY: I'll just -- Kate is just absolutely wrong. The Democrats are proud, proud of Howard Dean. He is right in terms of his perception in terms of the war. He has been able to bring a lot of new young people into that kind of thing. He is committed to the structure of the Democratic Party. And he is getting a lot of ink, he is getting a lot of attention, he is getting under the skin of these two people right here.

HUNT: That's a leading indicator.

KENNEDY: That's a leading indicator.

O'BEIRNE: I didn't say I didn't like him. I didn't say senator, I don't like him. I say -- I say, go Howard, senator.

SHIELDS: (INAUDIBLE) Bob Novak going after Newt Gingrich when he was talking about the Democrats being traitors and perverts and all the worst...

HUNT: I think that Ted has put his finger on it. I think if anyone asks whether Dean was going his job or not, he has summed it exactly. If he's got Bob upset he must be doing something right.

O'BEIRNE: I favor him.

NOVAK: Let me say this ...

HUNT: Do it in about five seconds. NOVAK: Let me just say he can't raise money either.


Well, he can't.

HUNT: We will be sure and -- I want to thank you so much for joining us.


HUNT: Only when you are here.

Coming up next in the second half, "Newsweek" retracts a report used to incite violence. We'll go beyond the Beltway to Kansas to ask if Intelligent Design is an intelligent decision to teach students and our outrages of the week. All after the break.


CAROL LIN, CNN ANCHOR: I'm Carol Lin. CNN's CAPITAL GANG continues in just a moment. But here's what's happening right now in the news.

A Florida school bus driver and two students are facing charges after a fight. Charlotte County Deputies say the fight started after the driver called a rowdy student to the front of the bus. And when he wouldn't come the driver went after him. The two students who's faces are blurred are the ones charged.

And tragedy in Ohio. A house fire broke out during a children's sleep over early this morning killing nine people. Seven of those killed were children. Fire officials believe the blaze was accidental.

A site seeing tour over New York's Coney Island turns deadly, as witnesses say the plane slammed into the beach after it's engine suddenly stalled. All four people on board the plane were killed. No one on the ground was believed to be hurt.

And Mary Kay Letourneau ties the knot with her former student Vili Fualaau. Get the inside scoop from people who were actually at last night's wedding on "CNN SATURDAY NIGHT" at 10:00 Eastern, 7:00 Pacific tonight.

But right now, we're going to send you back to the CAPITAL GANG.

HUNT: Welcome back to the second half of the CAPITAL GANG. "Newsweek" magazine continued under attack because of 13 words in the "Periscope" section about interrogation abuses at Guantanamo Bay. The piece in question said, quote, "Interrogators, in an attempt to rattle suspects, flushed a Koran down a toilet." .

After angry demonstrations left 15 dead, United States officials assailed the magazine.


RICHARD BOUCHER: It's appalling, really, that an article that was unfounded to begin with, has caused so much harm, including loss of life. And one would expect, as the facts come out of how this story was written, one would expect more than the kind of correction we've seen so far.

DANIEL KLAIDMAN, NEWSWEEK WASH. BUREAU CHIEF: If we had know what kind of fallout there would have been in terms of the violence in Pakistan, that is something that in some ways is unknowable and we feel terrible about the role that we played in sparking the violence.

MARK WHITAKER, NEWSWEEK EDITOR: We admitted that we got it wrong and we apologized for that. We went ahead and said, of course, that amounts to a retraction.


HUNT: The White House then issued this rebuke.


SCOTT MCCLELLAN, WHITE HOUSE PRESS SECRETARY: I think the American people are outraged about the report to learn that it turned out to be wrong. We share in that outrage and that's why it's important to work to repair the damage that has been done by that report.


HUNT: Mark, who should be blamed for this incident?

SHIELDS: Well, I mean, "Newsweek" was wrong and have said that they were wrong. Reluctantly they came to it. This is a classic example, Al, of the White House trying to change the subject, blame the press, go after the press, to take the attention of voters and everybody else off of the bad news that they've got. They've got nothing but bad news, not only in Iraq but on the home front and I mean, was "Newsweek" wrong? Yes, they were wrong, but Al, in the final analysis, who was wrongest about this was Dick Cheney and George Bush about the reasons for going to war and about Saddam Hussein's involvement with al Qaeda. It was all wrong.

HUNT: Kate.

O'BEIRNE: Look, it's clear that anti-American fanatics in Afghanistan and Pakistan need little excuse to try to incite people to violence, so clearly the people who did that are the ones responsible for the loss of life, but this is very telling, it seems to me, this episode of "Newsweek," about the media. Their honest mistakes always seem to hurt the Bush administration. They fancy themselves sophisticated skeptics. They are never skeptical about accusations against the military. They are too quick to believe the worst about the military.

Now, there are one and a half million people in uniform. Clearly there are going to be some bad actors, but it seems to me the military ought to get the benefit of the doubt and in this instance, "Newsweek" did not go with sources, as they reported. One source, uncorroborated, because they reflect the distrust of the military. The anti-American stories they lead to.

HUNT: Bob.

NOVAK: In the first place I think Kate is right, it was a very bad job of reporting and I think that everybody knows "Periscope" has been used as a dumping ground for rumors, for not the last two or three years, but the last 15 years in "Newsweek" magazine. You have a different level of proof needed for "Periscope" than for the body of the magazine. The thing that bothers me the most is that when "Newsweek" says that it was unknowable to know the damage that this would be done.

And I have talked to people in the "Newsweek" family who are appalled that this would be done so unthinkingly, putting in danger the life of "Newsweek" correspondents. And anybody who knows anything about the Middle East that this little line, this 13 words, were dynamite. What if they were true? What if you did a terrific job of reporting and -- probably wouldn't be in the "Periscope" section, then, but should you have considered the kind of damage would do to the United States in the "Newsweek" magazine? (INAUDIBLE)

HUNT: I am not going to be for censorship but, Kate, I must point out that I think one of the great criticisms of the mainstream press in recent years was how willing and accepting we were of the claims before the Iraq War. We went along with all that. We weren't appropriately skeptical and I think America has paid a price for the press' lack of vigilance before the war.

I would say I would agree with you. I think this "Periscope" item, I think "Newsweek" is a great magazine. They've got reporters, they've got great editors. This is a gossip column. You don't put serious stuff in a gossip column and it also underscores, again, this over reliance on anonymous sources. That's one point I agree with the White House on. You shouldn't put something serious like that out without sourcing ...

O'BEIRNE: Why are they so quick to believe the worst of the military? It seems to me the military deserves the benefit of the doubt and that doesn't -- that's not the attitude in general of the mainstream.

HUNT: Why were they so quick to believe Dick Cheney on the war?

O'BEIRNE: Because every international intelligence agency in the world felt the same way.

HUNT: (INAUDIBLE) of the "Washington Post" didn't think that way. Bob Novak didn't think there were. There were some exceptions.

SHIELDS: Al, just to point out that it wasn't simply "Periscope." "New York Times" had reported early as an interrogation technique that we had disrespected the Koran, that we had in fact kicked the Koran, (INAUDIBLE)

NOVAK: The sources of those were prisoners.

SHIELDS: Were prisoners.

NOVAK: This was different. This was ...

SHIELDS: The British sources as well on BBC.

O'BEIRNE: Prisoners.

NOVAK: Prisoners. They were all prisoner sources.

SHIELDS: But this was not, in fact, Bob, the first time it had been reported.

NOVAK: It was reported from a bogus source.

O'BEIRNE: Exactly. "Newsweek" in this instance was reporting that it had been confirmed and corroborated by the Southern Command. Which is not true.

HUNT: This was a sloppy piece of journalism. There is no question of that. And we will return to the broader issue in the weeks ahead.

Coming up next, a CAPITAL GANG classic. Priscilla Owen's rejection on CAPITAL HILL two and half years ago.

ANNOUNCER: Here is your CAPITAL GANG trivia question of the week. "Newsweek" is published worldwide each week in how many languages. Is it A: One. B: Three or C: Five.


ANNOUNCER: Before the break we asked, "Newsweek" is published worldwide each week in how many languages. The answer is C: Five.

HUNT: Welcome back. Two and a half years ago the Democratic controlled Senate Judiciary Committee rejected Texas Supreme Court justice Priscilla Owen's nomination to the Fifth U.S. Circuit Court of Appeals by a 10-9 party line vote.


SEN. ORRIN HATCH (R), JUDICIARY COMMITTEE: Justice Owen is being opposed by an axis of prophets. This axis of prophets combines the money of trial lawyers and the abortion industry to fund the Washington special interest groups.

SEN. CHARLES SCHUMER (D), JUDICIARY COMMITTEE: The White House has to understand that they cannot pack the courts with only conservative nominees and expect this committee to be a rubber stamp.


HUNT: The CAPITAL GANG discussed this on September 7th, 2002. Our guest was then Chief Deputy Majority Whip Roy Blount of Missouri.


NOVAK: Chuck Schumer, God bless him, told the truth. He said there is a conservative litmus test. There has never been before that you said we will not confirm conservative judges and Chuck Schumer says exactly that is what they are going to do, but there will be, some day, bitter retribution.

UNIDENTIFIED FEMALE: She is an arch-conservative and it's not an axis of prophets that moved against her, it's an access of big business that elected her in the first place.

UNIDENTIFIED MALE: If you look at the case on the Texas abortion law, this was a parental notification case. This is not a wild sort of thing for her to do. Highest rating by the ABA. Only person ever been rejected who had that rating.

UNIDENTIFIED MALE: The nominating process is about politics. Bob draws this bizarre standard in which he says, basically, it's fine, indeed, desirable, for conservatives to use and emphasize ideology when it comes to picking nominees or defeating nominees, but it is not OK for the other side to do it.


HUNT: Kate, why are we still debating Priscilla Owen?

O'BEIRNE: Al, what the Democrats have done to this extremely talented woman is an outrage. Unanimous well-qualified by the ABA. Reelected with 84 percent of the vote. Democrats didn't even run anybody against her. Endorsed by a bipartisan group of 15 former presidents of state bar associations.

Senator Murray is criticizing her for being the dissent in cases where she was actually in the majority. And other senators, Democratic senators, are criticizing her for being in the dissent in cases where she actually was in the majority and other senators, Democratic senators, are criticizing her for decisions in unanimous cases. They have totally smeared Priscilla Owen because they are threatened by a talented woman being primed to possibly go to the Supreme Court.

HUNT: Threatened by a woman, Mark?

SHIELDS: Terrified. Terrified. They're cringing. But I do like the selective use of ABA recommendations. When the Republicans took over the Senate, the ABA had nothing to do, they had nothing to say about it. Well-qualified now is being invoked. I'll just say this, Al. What we saw the in the Priscilla Owen thing is a preview of what's to come. Rejected by a Democratic controlled committee, approved by a Republican controlled committee. Get ready folks.

HUNT: Bob?

NOVAK: I still love Chuck Schumer 'cause he tells the truth. The only thing against her is her being a conservative. Now they are smearing her by saying that Alberto Gonzales says that she was an unconscionable person is -- his -- decisions -- he has said he never said that about her. He never did say it about her and that is spread around this country.

O'BEIRNE: Lies and smears.

NOVAK: Lies and smears is right.

HUNT: I thought we had made news tonight with the Novak-Ted Kennedy Axis. In fact, he praised Chuck Schumer three years ago. You are going to get in trouble with your base, Bob.

Next on CAPITAL GANG, beyond the Beltway goes to Kansas to look at a tornado of controversy surrounding evolution education.


HUNT: Welcome back.

The Kansas Board of Education conducted hearings and contentions by its board members that evolution is a flawed theory and that alternatives should be taught in public schools.


PEDRO IRIGONEGARAY, CIVIL RIGHTS ATTORNEY: These hearings have been an unjustified waste of taxpayer money intended first to justify the board's support for inserting creationist claims into the science standards and to provide a showcase for the national Intelligent Design movement.


HUNT: A critic testifying against the theory of evolution.


JONATHAN WELLS, DISCOVERY INSTITUTE: It's a young theory. It hasn't proved itself, it doesn't deserve a place in the curriculum.


HUNT: Joining us now from Kansas City is David Klepper of the "Kansas City Star," who's been covering the hearings. David, do you think the people of Kansas want to see an alternative to evolution presented in the public schools?

DAVID KLEPPER, "KANSAS CITY STAR": Well that's really the million dollar question. If my e-mail inbox is any indication, I would say we are running about 50-50 right now, but I don't think we'll know until the 2006 election, when some of these school board members are up for a vote.

HUNT: Bob Novak. NOVAK: David, as I understand it, this is not a question of asking the people to decide, gee, do you agree with the Theory of Evolution or do you agree with the creationists, all they are saying is that they think that the students should be, in addition to evolution, should be given the Intelligent Design Theory, which as I understand it means there was some kind of Supreme Being in the creation of the world. Today an alternative view.

Is that correct or am I wrong on that?

KLEPPER: No, you are correct. Some of the folks that are very upset about this debate, though, say that this is just about a wedge. They call it the wedge argument, they've compared it to a Trojan Horse. And they're afraid that if we change our science standards to downplay evolution, what's next? Faith-based math? It's anybody's guess.

HUNT: Kate.

O'BEIRNE: David, has this contentious debate been confined to the Board of Education or have the other state politicians, governor and state office, congressional -- members of congress, have they been dragged into it too?

KLEPPER: Well, to some degree. And some of them have jumped in with both feet. In our state legislature there was an attempt to basically get a state version of what they call the Santorum Amendment, which would have encouraged schools to teach alternate theories. The -- some of the constitutional officers in the state and some of our congressional folks are really trying to steer clear of it. We had a similar debate in '99, and some of the people who wanted to downplay evolution were kicked out in the next election. So there are a lot of folks who are a little bit reluctant to get in the middle of it.

SHIELDS: David, you have got a governor's race coming up and tell us how this plays out in the Republican Party. Because it is essentially, if I am not mistaken, a Republican effort as far as the rejection of evolution is concerned, isn't it?

KLEPPER: Well, of course, both sides shy away from that kind of a label. They've found quite a few Democrats, self-professed liberals, who say they have problems with evolution and the scientists found quite a few conservatives who say they have no problem with evolution. But we do have a bunch of elections coming up in 2006. Whether this will really play into it or just be another facet of the culture wars like the gay marriage amendment we passed last month, it is too soon to say. I tend to think that this is just one more battlefront in that war.

HUNT: David, how active are the churches, the religions, in this fight, and how do they line up?

KLEPPER: Well, on both sides of the debate we had some very influential preachers in Wichita and Kansas City that really got behind the Intelligent Design movement, trying to get evolution rolled back in the classroom. We had one preacher here in Kansas City who gave a month of sermons solely on evolution and why it didn't measure up with what is in the Bible.

On the other side, we had a list of clergy who said leave science to the classroom and the laboratory and leave religion to us and the dinner table and let's keep this debate separate.

HUNT: Bob.

NOVAK: David, your State of Kansas has had more than its share of presidential candidates over the years and -- Alf Landon, Bob Dole, and so on. You've got another this year in Sam Brownback. The question is is Senator Brownback seeking the Republican nomination or he is going to seek it. Is he getting involved in this evolution fight and if so does he -- is he taken seriously, whether he is involved at all as a candidate in Kansas.

KLEPPER: Well, I think he is taken very seriously. There is a lot of rumors going around. There was a rumor a couple months ago that he was going to be chairman of the IMF. There is a lot of conjecture about what his future might be. You're right. Kansas is a state that likes to have a Bob Dole in the national spotlight and without that I think a lot of people have put their money on Brownback to be that guy.

NOVAK: Is he involved with this fight?

KLEPPER: Well, not overtly. A lot of the same support -- or a lot of his supporters are. He has not really put a dog into this fight. I mean, he might be trying to stay out of it. Certainly he supports a lot of the same things that the religious right in this debate are supporting. They want alternatives. They don't want any sort of atheistic science taught in the classroom and that's what a lot of these people have said evolution boils down to.

HUNT: Hey, David Klepper, thank you very much for being with us.

The GANG will be back with our outrages of the week.


HUNT: And now for the outrages of the week.

The highlight of my week, even more than tonight, was the Montgomery College commencement yesterday. Community colleges offer millions of working class Americans, especially immigrants, the shot to pursue the American dream, so it was shocking to read the General Accounting Office report this week that the government's Pell Grants, which many of these students depend on, would be denied to 81,000 deserving applicants next year.

Before anyone at this table gets a tax cut, let's make sure these 81,000 men and women get an education.

NOVAK: The Senate is split on partisan lines about judges, Social Security and John Bolton, but the Republicans and Democrats there agree on pork. They all love it. The Senate passed a highway bill overshooting its own budget resolution, not to mention President Bush's overly fat recommendation. Only nine Republicans and two Democrats voted no. The bill's conservative Republican manager, Senator James Inhofe, says it's all right for conservatives to be big spenders on highways. We'll find out whether George W. Bush agrees. Will he cast his first presidential veto against the outrage of pork?

HUNT: Kate.

O'BEIRNE: Democrats howled when they were accused of taking the judicial nominees faith into account when they decide who should be blocked as unfit for the bench. It's not about religion, they protest. How, then, do they explain the posting on the Web site of, one of their chief allies in the liberals unprecedented campaigns to keep conservatives to be confirmed when Pope Benedict is the featured villain in the fight over judges.

It sure looks like this dispute is, in part, about religion.

HUNT: Mark.

SHIELDS: Al. In the public ceremony on Thursday, Maryland Governor Robert Ehrlich vetoed a bill that would have required retail giant Wal-Mart, with annual profits of $10 billion to spend eight percent of its state payroll on healthcare for its own employees. At the veto ceremony, Mr. Ehrlich stood not with workers or ordinary citizens, but with Wal-Mart's chief operating officer.

He must feel grateful to the governor for protecting freeloading Wal-Mart and its unfair advantage over responsible competitors who do cover their workers. Uninsured Wal-Mart workers cost Maryland taxpayers millions in increased Medicaid costs.

HUNT: This is Al Hunt saying good night fro the CAPITAL GANG and thank you for joining us.


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