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LOU DOBBS TONIGHT

Bush Nominates White House Counsel to Supreme Court; DeLay Indicted for Money Laundering

Aired October 3, 2005 - 18:00   ET

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


LOU DOBBS, CNN ANCHOR: Good evening, everybody.
President Bush today nominated one of his closest advisers, White House counsel Harriet Miers, to the U.S. Supreme Court. President Bush selected Miers to replace Justice Sandra Day O'Connor on the same day the Supreme Court began a new session under Chief Justice John Roberts.

Miers has a long and distinguished career as an attorney, but she's never been a judge. She has never held major elected office. The president praised Miers' achievements and declared she will never legislate from the bench.

Suzanne Malveaux reports from the White House. She'll be reporting on a Supreme Court nomination that caught many by surprise, and has set off opposition on both ends of the political spectrum.

John King, in Washington, reports on Miers record and how she compares with Chief Justice John Roberts.

Ed Henry, on Capitol Hill tonight, reports on the mostly positive reaction from lawmakers so far to the Miers nomination.

We begin with Suzanne Malveaux at the White House -- Suzanne.

SUZANNE MALVEAUX, CNN WHITE HOUSE CORRESPONDENT: Well, Lou, really now the focus of the White House is to try to sell the president's pick. And, of course, it is a full court press. Many officials trying to quietly twist arms behind the scenes here. The big surprise is that it may be a tougher sell for Republicans than the Democrats.

(BEGIN VIDEOTAPE)

MALVEAUX (voice over): It was vintage President Bush in choosing Harriet Miers to the Supreme Court.

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: I've known Harriet for more than a decade. I know her heart. I know her character.

MALVEAUX: Aides say the president's White House counsel is someone Mr. Bush can trust, feels comfortable with, who's given him legal advice since his days since Texas governor. Sunday night, Mr. Bush officially offered Miers the job over dinner with the first lady in the White House residence.

Miers was in charge of the search committee established to help the president find his Supreme Court nominee. But White House aides say over the summer, during Mr. Bush's search to fill John Roberts' position, the president began to consider Miers as a possible candidate.

DAN BARTLETT, COUNSELOR TO THE PRESIDENT: There was a separate process unbeknownst to Harriet Miers herself that vetted her and put her through the very same steps that we expect of all of our judicial nominees.

MALVEAUX: The president had his first sit-down with Miers as a potential candidate 12 days ago. As the president rolled out his nominee, the White House braced itself for the expected criticism, such as the fact that she has no experience as a judge.

BUSH: Justice Rehnquist himself came to the Supreme Court without prior experience on the bench, and I'm proud...

(END VIDEOTAPE)

MALVEAUX: And, of course, Lou, quietly, the same cast of players who have been involved in pushing through the John Roberts' nomination also quietly reaching out to those conservatives whoa re concerned that she does not share their agenda -- Lou.

DOBBS: Thank you, Suzanne.

President Bush has known Harriet Miers since the early '90s, when he ran for governor of the state of Texas. She's been a trusted adviser to the president ever since.

John King joins me now from Washington.

John, we seem to know very little about her views. What can you tell us about her opinions?

JOHN KING, CNN CHIEF NATIONAL CORRESPONDENT: Well, Lou, in many ways, this is a "trust me" nomination from the president of the United States. As you noted at the top of the show, she has never been a judge. So there is not a judicial paper trail.

One thing the White House says, though, if you have questions about her credentials, look at what she has done at the White House the past few years, and especially the past six months as White House counsel. White House officials say that she's very quiet and reserved in public, so you don't know much about her, but that she has been a driving force behind the re-nomination of conservative judges like Priscilla Owen, like Janice Rogers Brown, like William Pryor, all judges who have high approval ratings from social conservatives, other conservatives.

So, what the White House is essentially saying is, don't rush to judgment. And they know, as Suzanne just mentioned, their biggest problem initially is with conservatives. They say don't rush to judgment, when you get to know this woman you will like her.

On the issue of abortion, Lou, which is certain to be a flash point, the White House says the president doesn't know what she thinks of Roe v. Wade and didn't ask her. We do know that when she was head of the Texas Bar Association, she lobbied the American Bar Association to drop its pro-abortion rights stance, saying it should have a neutral position.

That is one clue, but it is certainly not definitive. And we do know she gave some money and attended a few events for a Texas anti- abortion group. Some social conservatives say, again, that they are convinced she opposes abortion.

She is also an evangelical Christian. But again, Lou, the White House says Roe v. Wade, they don't know the answer, the expect it to come up at confirmation.

DOBBS: And how does Miers' record compare with that of the new chief justice, John Roberts?

KING: Well, certainly, if you match the resumes up, many people would say that Judge Roberts is a more accomplished pick for the Supreme Court. He was the editor of "The Harvard Law Review," he went to Harvard as an under grad. He was on the appeals court, only for a short time, but two years on the D.C. Circuit Court of Appeals.

So, if you're thinking traditionally inside the box, even Miers' supporters would say Judge Roberts looks more favorably. But they say the president, knowing he had Judge Roberts on the court as the chief justice, was able to think outside the box. And he wanted part of his legacy to be that he chose someone who is less conventional, if you will.

The president himself noted that William Rehnquist, the late chief justice, was not a judge before he went on to the high court. He served in the Nixon administration, just as Harriet Miers has served in the Bush administration.

So, if you're matching up the resumes, I think most would say that Judge Roberts on paper looks more impressive. Again, the White House is saying that this is a quiet woman, but a conservative woman who, in private, has a biting sense of humor, doesn't back away from a fight, and can be very tough in making her case.

They think she'll be a positive element on the court, and they say, Lou, that they have no doubt that a court with Harriet Miers and John Roberts will be more conservative than a court with Sandra Day O'Connor.

DOBBS: A conservative woman, as you put it, but one who also contributed to the Gore campaign.

KING: She did, and that will come up again and again. And the White House says, the vice president tonight saying that he was aware of that, Lou. And Lou, one of the things that they're saying is that the president was well aware of that. And they say that most conservatives in Texas were Democrats in the 1980s.

She gave to Lloyd Bentsen as well. The president says he's comfortable with that.

Will that help with the Democrats in the Senate? We'll see.

DOBBS: John King, thank you.

Just hours after being nominated to the Supreme Court, Miers went to Capitol Hill to meet leading Republican and Democratic senators. Lawmakers on both sides of the aisle praised her record but promised to ask tough questions during her confirmation hearings.

Ed Henry reports from Capitol Hill.

ED HENRY, CNN CONGRESSIONAL CORRESPONDENT: Lou, there had really been an expectation of a partisan fight, a major battle here. But instead, it appears that the president, just as he did with John Roberts, has found someone maybe in the middle who might be able to reach across the aisle and get wide bipartisan support.

And Lou, the bottom line is that today we saw a lot of Republicans initially, like Senate Judiciary Chairman Arlen Specter, as well as Senate Majority Leader Bill Frist, express cautious support, at least early on. A lot of, you know, talk on both sides of the aisle that perhaps this is a good pick.

(BEGIN VIDEOTAPE)

HENRY (voice over): Despite her thin record, top Republicans immediately embraced the nomination of Harriet Miers.

SEN. BILL FRIST (R-TN), MAJORITY LEADER: Harriet's nomination we are excited about, we are pleased with. She has demonstrated her leadership, her character, her integrity in the past.

HENRY: More telling is that leading Democrats who voted against Chief Justice John Roberts offered cautious praise for Miers.

SEN. CHARLES SCHUMER (D), NEW YORK: Harriet Miers clearly has the potential to be a consensus nominee.

SEN. DIANNE FEINSTEIN (D), CALIFORNIA: I see no negatives at this stage in Harriet Miers.

HENRY: Miers' biggest boost came from Senate Democratic Leader Harry Reid, who first recommended her name to the president.

SEN. HARRY REID (D-NV), MINORITY LEADER: Just to understand the broad outline of this woman, and the broad outline looks really good to me. Thank you.

HENRY: In fact, some Republicans think the biggest opposition may come from conservatives who fear this could be a stealth nominee, like David Souter, who turned out to be a moderate justice. But White House allies say Miers' lack of judicial experience will be a plus. SEN. JOHN CORNYN (R), TEXAS: And I think it's the kind of nominee that frankly would benefit the Supreme Court by providing a voice and perhaps a perspective on the world outside of the Beltway.

HENRY: Nevertheless, finding out Miers' views on key issues like abortion will be difficult, because documents covering her time as White House counsel are likely to be covered by executive privilege. Despite their early praise, Democrats are vowing heavy scrutiny.

SCHUMER: Because the president hasn't nominated somebody from the hard, hard extreme doesn't absolve us of our responsibility to find out what the views of the nominee are.

(END VIDEOTAPE)

HENRY: Expect tough questions as well from the two most conservative members of the Senate Judiciary Committee, Tom Coburn and Sam Brownback. They both today indicated they want to hear a lot more about Harriet Miers' views before they venture any sort of comment on this nomination -- Lou.

DOBBS: Ed, thank you. And Ed, if you would, just stand by there for a second.

This just into CNN: The Associated Press reporting that a Texas grand jury in Austin, Texas, has indicted the majority leader of the House, Tom DeLay, the now former majority leader. Again, has indicted Tom DeLay. This charge, money laundering.

Again, repeating, The Associated Press just now reporting that a Texas grand jury in Austin, Texas, has indicted Tom DeLay for money laundering.

Ed, I want to ask you, right now, the Republican leadership is in -- I think the best description would be in disarray right now in the House. What does this do to add to the problems that they now face, in particular, the problems for Tom DeLay?

HENRY: Well, it puts an even deeper cloud obviously over Tom DeLay, but I can tell you I'm getting reaction just now from Tom DeLay's office as we speak, and they're basically telling me that they believe that Ronnie Earle, the prosecutor down in Texas, acted with this second indictment because they believe he had such a weak case over the first indictment that was handed up last week.

But they're saying basically is that today we saw Tom DeLay's lawyers down in Texas looking for a motion to dismiss last week's indictment. And as a result, Tom DeLay's office is telling me they believe Ronnie Earle issued this second indictment because he realizes the first indictment is so weak that he has to come up with a new charge.

But the bottom line is you're right, it's broader than a legal problem. It's a political problem for Tom DeLay.

Regardless of whether the first or second or neither indictment sticks, there is a cloud over Tom DeLay. He knows it. And it comes at a very difficult time as well for Republicans on both sides of the Capitol because you have the Senate majority leader, Bill Frist, currently under investigation by both the Securities and Exchange Commission, as well as the Justice department -- Lou.

DOBBS: Ed, as you're receiving reaction as you're standing there and as we were talking, from DeLay's office, an outright denial, as in the case of the first charge?

HENRY: Let me see if I have more reaction from them. They've been e-mailing in. I don't have any more, but what they were basically saying was they were acknowledging that a second indictment was coming in, but they were basically insisting, yes, they feel he's not guilty here, just as they feel he's not guilty of the first indictment.

And they feel that this is just basically the prosecutor shooting at every which -- every direction he can, just hoping that one of these indictments will stick. But again, Tom DeLay clearly has a broader problem here, this ongoing situation.

It's hard for him to sort of dig out from under this, but DeLay's camp feels that the more Ronnie Earle pours it on, they feel that that may actually get more Republicans rallying behind DeLay. And that's certainly their best hope at this point -- Lou.

DOBBS: Obviously a widening political battle for Tom DeLay and a widening of the legal front circling.

Ed Henry, thank you very much, from Capitol Hill.

Repeating again, just now into CNN, Tom DeLay indicted by a Texas grand jury. An additional charge, this one money laundering. And the former majority leader denying categorically those charges and suggesting this charge following on the heels of the first charge of last week because that charge was so weak.

In tonight's poll, we'd like to know your thoughts on Harriet Miers' nomination to be justice of the U.S. Supreme Court. Does it surprise you that the primary compliment to President Bush on his nomination of Harriet Miers so far is that she is a woman?

Cast your vote at LouDobbs.com. We'll have the results later in the broadcast.

We'd like to know your thoughts on the nomination. You can send us your e-mails at LouDobbs.com.

Still ahead here, new charges tonight that government bureaucrats could be giving terrorists the right to live in this country legally with almost the same rights as you and me. We'll have a special report.

Mayor Ray Nagin of New Orleans wants as many people to return to New Orleans as quickly as possible. But is the mayor ignoring advice that the city remains unsafe? We'll have a live report for you from New Orleans.

And disturbing new evidence tonight that our educational system is facing an unprecedented crisis. A shocking number of high school seniors in California cannot pass even basic tests in English and math.

Stay with us.

(COMMERCIAL BREAK)

DOBBS: Today in New Orleans, residents are moving back to parts of the city that were declared unlivable just two-and-a-half weeks ago. New Orleans Mayor Ray Nagin says the city will be completely dry within days, and he's calling for more residents to return. Others say Mayor Nagin's call puts residents at risk.

Lisa Sylvester reports.

(BEGIN VIDEOTAPE)

LISA SYLVESTER, CNN CORRESPONDENT (voice over): Evelina Sam returned to the city to see what she could salvage from her home.

EVELINA SAM, NEW ORLEANS RESIDENT: This is 36 years of my life that I invested into the house. We paid for our house, and naturally, you thought you'd be in your house awhile, you know?

SYLVESTER: She is among the residents who headed back after getting the green light from city officials to return. But she won't be staying.

SAM: It's not livable right now. They have to clean it up. It really isn't livable.

SYLVESTER: Mayor Ray Nagin has been eager to repopulate the city, but reality is getting in the way. Consider 65 percent of the city still does not have power. The sewage system is still very iffy. Only four out of 63 zip codes have mail service, and none of the hospitals in New Orleans proper is back up and running.

The city is an environmental hazard, with toxic mold only one problem.

HUGH KAUFMAN, SR. POLICY ANALYST, EPA: We've had all the material that's in the sewers, which is industrial waste and human waste, and you have over 22 million tons of contaminated solid waste that has to be disposed of. It's very dangerous to bring hundreds of thousands of people into that environment without protection.

SYLVESTER: The state health department says drinking water in most of New Orleans remains contaminated.

(END VIDEOTAPE)

SYLVESTER: And while city officials are recommending and telling people that it's OK to come back, state health officials, different story. They are recommending only essential personnel, police, firefighters, cleanup crews return to the city, and the very young and the elderly in particular, those who are susceptible to illnesses and diseases, are being told to stay away -- Lou.

DOBBS: Lisa, what is the situation? How many people are actually moving back into the most damaged areas? I can't imagine anyone would want to try.

SYLVESTER: What we've been seeing is a handful. I mean, it really is a trickle in terms of the population.

The flight, for instance, on the way here was just about every seat on the plane was full. But you have a situation as people are maybe coming back, but they're not staying. They're coming back, taking a look, doing some cleanup work, taking assessments, contacting their insurance company, but it is not a livable city.

The vast majority of parts of the city really are just not livable. You do have the French Quarter and some other areas that people can stay and has electricity, but, you know, keep in mind, 65 percent of the city is still without power.

DOBBS: And an important statistic as well, 50 percent of the population in New Orleans rent their homes, and have less than a straightforward bond to those houses in many cases.

Lisa Sylvester. Thank you very much.

Tonight, one of our nation's most respected hurricane experts is forecasting some disturbing news. Colorado State University scientist William Gray, whose hurricane forecasts have been consistently accurate over the years, says this October will be another above- average month for major storms.

Gray expects at least three named tropical storms and two hurricanes this month. And he is predicting as well that one of those hurricanes will be a major storm.

In Los Angeles tonight, firefighters are making progress in controlling those massive wildfires, but hot winds are expected to return to the area later this evening. And conditions are so dry that even moderate winds could whip up those fires again.

Los Angeles, as of today, its largest wildfire is 85 percent contained. But that fire has already burned more than 24,000 acres.

Clear skies over Africa and the Iberian Peninsula gave millions a spectacular view of a solar eclipse today. During the eclipse, the moon passed between the sun and the Earth, leaving a bright rim of fire. The moon, too far away from Earth to create a total eclipse. This eclipse best visible from Portugal and Spain, central Sudan and Somalia.

It was Spain's first eclipse, by the way, in more than two centuries. Still ahead here, we'll have the latest for you on a report that former House Majority Leader Tom DeLay faces a new grand jury indictment in Texas. We'll have the latest on that story from Capitol Hill for you.

And the green card giveaway. Critics say our nation's immigration system is so broken that terrorists could potentially be given green cards and perhaps have already received them. A special report coming up.

And a mystery in upstate New York. How a tour boat capsized, killing 20 people. The latest when we continue.

Stay with us.

(COMMERCIAL BREAK)

DOBBS: The pictures you're looking at now are Seven Mile Bridge, running toward Marathon Key. That is a gasoline tanker, completely engulfed in flames, obviously, which has apparently hit an SUV.

We have no reports of injuries. These pictures coming to us from WSVN TV, our affiliate there, as we are pulling back here. We will keep you up to date on this. We have, again, no reports of injuries, but both lanes obviously closed on Seven Mile Bridge, and we will update that story as more details become available.

We also want to, again, report that Tom DeLay, the former House majority leader, has been charged, again, indicted by a Texas grand jury of money laundering. We'll be going to Capitol Hill for the very latest reaction. Tom DeLay's office there saying that there is nothing to these charges, and, in point of fact, it is a suggestion of weakness on the part of the district attorney there, Ronnie Earle.

Alarming charges are being leveled tonight against the agency that makes key national security decisions about just who wins U.S. citizenship. Critics say the U.S. Citizenship and Immigration Service is plagued by employee misconduct, corruption, and may be giving green cards to foreigners who threaten our national security.

Christine Romans is here now with the story -- Christine.

CHRISTINE ROMANS, CNN CORRESPONDENT: Lou, this is the agency whose mission it is to legally admit immigrants into the United States, the United States Citizenship and Immigration Service. Now, according to a source close to the matter, an internal investigator of the agency told Congress last week that the agency is overwhelmed and unable to investigate charges of corruption and potential lapses in national security.

(BEGIN VIDEOTAPE)

ROMANS (voice over): CIS is part of the Department of Homeland Security. It has 15,000 employees, and an enormous backlog of visa and green card applications. Among the charges, that up to a quarter of the administration adjudicators who approve green cards do not have full access to an important database for background checks. And the source says Congress members were told of 2,500 misconduct charges within CIS, allegations of bribery influenced by foreign governments, and trading green cards for sex.

The House Judiciary Committee chaired by Congressman James Sensenbrenner, confirmed the briefing took place and said it is actively investigating the allegations.

In a statement, CIS says it investigates all allegations of misconduct. "These allegations reflect a small percentage of USCIS employees."

A spokesman for the agency also says since September 11, every applicant undergoes a background check, but acknowledged that not all applicants are screened through the important treasury database in question. But critics say more should be done to prevent the wrong people from getting green cards.

MIKE CUTLER: When you're talking about, 2,500, even if only 1 percent is a valid complaint, you're talking about 25 people. Think what damage 19 terrorists did to our country.

(END VIDEOTAPE)

ROMANS: These were confidential briefings to Congress, and the investigator who told members of Congress about these allegations and his concerns of national security breaches, the identity of that investigator is being kept secret -- Lou.

DOBBS: As it should be. We have a situation in this country in which three million illegal aliens crossed our borders last year. And of the three million this year, we have more illegal aliens living in this country than legal immigrants.

What in the world does it take for Congress to awaken to the issues here?

ROMANS: And now there's concern that people who have that green card, if there's even one bribery case where someone bribed to get a green card, that green card is the passport in this country. That person can go anywhere in the world, and that person has all kinds of rights and responsibilities.

DOBBS: And the next step in these investigations?

ROMANS: We're going to hear more about this tomorrow, I think. We're going to talk more to this CIS and ask them more about the issue with just how many people are being -- are having these very, very in- depth background checks. It should be everybody, but at this point...

DOBBS: We know bet per.

ROMANS: Right. DOBBS: Christine, thank you.

When we come back, reports of a second criminal indictment against Tom DeLay, who stepped down as House majority leader last week. We'll have the latest for you on that developing story.

And death on Lake George. We'll have a report from upstate New York on a shocking tour boat accident, 20 lives claimed.

And Supreme Court justice nominee Harriet Miers being praised by a key Democrat. What are the conservatives saying?

And China and the United States, fierce economic rivals today. Is a military clash inevitable? I'll be talking with one of the country's leading China experts next.

(COMMERCIAL BREAK)

DOBBS: Dramatic developments today from Lake George, New York, the day after a tragic boating accident. Twenty people were killed yesterday when a tour boat suddenly capsized. Investigators today raised the boat from 70 feet of water.

Susan Lisovicz reports now from Lake George -- Susan.

SUSAN LISOVICZ, CNN CORRESPONDENT: Lou, this tranquil picture behind me belies the fact this was an area of intense activity all day. Authorities knew exactly where the Ethan Allen capsized and sank yesterday in 70 feet of water in Lake George. At first light today, a flotilla of vessels and divers were on the scene, divers diving into the depths of the water to record the condition, the position of the boat, before they were able to ever-so-carefully place inflatables underneath the Ethan Allen, and then slowly and evenly bring it to the surface.

That was accomplished late this afternoon, and that is a critical part of the investigation, because the Ethan Allen is exhibit A as to what may have occurred yesterday, why a boat with a good safety record, a captain with an extensive record and knowledge of Lake George, why a boat would suddenly capsize and sink in what appeared to be picture-perfect conditions. Twenty people dead; 27 survived; a handful hospitalized. The boat right now is just out of camera range, Lou. Authorities trying to pump out the remaining water before that boat can be towed to dry dock and given a thorough examination -- Lou.

DOBBS: Susan, thank you very much. Susan Lisovicz, reporting from Lake George.

Reports tonight of a new legal troubles for Republican Congressman Tom DeLay, who stepped down last week as House majority leader. Tonight, word of a second criminal indictment. Ed Henry has the story from Capitol Hill -- Ed.

ED HENRY, CNN CONGRESSIONAL CORRESPONDENT: That's right. Good evening again, Lou. In fact, a second indictment. Tom DeLay hit with a second indictment today, as you mentioned. This one a Texas grand jury indicting him on a charge of money laundering, also in connection with this case. We had already heard about allegedly trying to evade the state ban on corporate contributions to state campaigns.

Now, DeLay's office is telling CNN that this is coming down now because Ronnie Earle, the prosecutor down in Travis County, Texas, realizes that the first count, a charge of conspiracy, the indictment that was handed up last week, they realize this is a weak case. This is what DeLay's office is saying. And in fact, just got a statement from Tom DeLay himself.

It says, quote, "Ronnie Earle has stooped to a new low with his brand of prosecutorial abuse." He's trying to pull the legal equivalent of a do-over since he knows very well that the charges he brought against me last week are totally manufactured and illegitimate. This is an abomination of justice."

Again, that statement directly from the former House Majority Leader Tom DeLay.

But I can tell you, Democrats are immediately saying that that is just a bunch of spin, that in fact, Tom DeLay's camp must be extremely nervous now, as if they weren't nervous enough last week. Democrats telling us tonight that they believe that the investigation is clearly widening, and that Tom DeLay has an even bigger cloud over him -- Lou.

DOBBS: And again, Tom DeLay is denying those charges, categorically?

HENRY: Absolutely, saying that basically both charges, the charge last week, allegedly conspiracy; tonight now, money laundering. DeLay's office noting that that is -- both charges in connection with the same case, in which DeLay allegedly evaded the state law banning corporate contributions in state races. They say whole situation is a bunch of nonsense.

DOBBS: What is the perception there on Capitol Hill amongst the congressmen and the senators? Is it that this is a very difficult legal issue for Tom DeLay, or is it more this is Texas politics hardball style?

HENRY: I think it's the latter. I think you're hearing from Republicans privately, they believe that there's a vendetta here, some of them obviously going public with that as well, that Ronnie Earle, in their estimation, a liberal Democrat. Of course the Democrats on the Hill insist Ronnie Earle has mostly gone after Texas Democrats.

That's really just back and forth, I think mostly a distraction on both sides from the bottom line, which is that Tom DeLay, the most powerful Republican on Capitol Hill, the man who has muscled through President bush's agenda time and time again is now out of his job, obviously, as a leader, but also under a real cloud here, and he thinks he's coming back soon, but with a second indictment, this is obviously going to make it that much harder.

DOBBS: Ed Henry, thank you very much. Turning now to President Bush's nomination of Harriet Miers to the Supreme Court. Miers has had a long career as attorney, trusted adviser to President Bush, but she's never served as a judge. Her views on major issues are unknown.

Joining me now, our senior legal analyst, Jeffrey Toobin, and senior political analyst, Bill Schneider.

Jeffrey, let's begin. This choice had to be, even though it had been rumored for some time that her name was amongst them, it has to be something of a surprise, particularly in counterpoint against Judge John Roberts.

JEFFREY TOOBIN, CNN SR. LEGAL ANALYST: I'm astonished, amazed and frankly a little bewildered. I mean, the job of a Supreme Court justice is to interpret the Constitution. We have no idea what she thinks of the Constitution. The job of the Supreme Court justice is to write opinions. As far as we know, she's written virtually nothing.

So I don't know which side this helps or hurts, but I know as a citizen, I know virtually nothing about this woman.

DOBBS: Bill Schneider, the fact is, Senator Harry Reid, nearly everyone who had a comment today said, you know, we're delighted the president nominated a woman. This is 2005. Why should that be the first words to fall from anyone's lips in regard to this nomination?

BILL SCHNEIDER, CNN SR. POLITICAL ANALYST: Because they don't know much else about her. They know she's a woman, but they don't know much about her views. This was not a bold choice. This was a very cautious choice. It was a choice intended not to provoke Democrats into a filibuster. They were very guarded in their response. The president is saying to conservatives what John King just said, trust me. It's a real test of his strength with his conservative base. They are going to have to trust him that she's conservative enough for them to support her.

DOBBS: Conservative enough, yet the president today made it clear, as did his vice president, Dick Cheney, that Harriet Miers will not legislate from the bench. How can he be so sure? How can they be so sure?

TOOBIN: Well, I mean, that's the mystery of this process, because we have a process where there is a lot of winks and nods, but you know, these confirmation processes -- in the course of answering questions, they don't say much about their views. John Roberts had a, it turns out, a fairly extensive paper trail. He has been a judge for several years. He was an official in the Reagan administration. His opinions on certain issues are on the record.

I know of no comparable record for Harriet Miers. So I think it is going to be a "trust me" defense of her, by this administration.

DOBBS: A "trust me" defense or advocacy to the conservative base, how is that going to wash, Bill Schneider? SCHNEIDER: Well, I think he does have the trust of most conservatives. There are some social conservatives who are claiming betrayal, this is another David Souter. But remember one difference: The first President Bush, when he named David Souter, he really didn't know David Souter. Souter was recommended by his chief of staff as a reliable conservative, and he turned out not to be.

The one thing you must say about this nomination is George Bush and Dick Cheney know her. She's been in the White House. If they trust George Bush, as they appear to do, then when he says "trust me, she's a conservative," I think they'll be inclined to go along with it.

TOOBIN: And there are 55 Republicans in the Senate. That's more than enough for a majority. So chances are overwhelmingly that she's going to get through and the Democrats will not muster a filibuster against her, which is the only way they could stop her.

DOBBS: Jeffrey Toobin, Bill Schneider, thank you both.

A reminder now to vote in our poll: Does it surprise you that the primary compliment to President Bush in his nomination of Harriet Miers so far is that she is a woman? Yes or no? Cast your vote at loudobbs.com. We'll have the results coming up here in just a few minutes.

Up next, failing grades. A massive number of our high school seniors in one state have failed a critical final exam. The results are not only deeply troubling, not only for what they say about education in America, but race as well. We'll have a special report.

And then, red storm. Is the United States headed for a military confrontation with the world's fastest rising power? Our expert on the rise of China is next. Stay with us.

(COMMERCIAL BREAK)

DOBBS: Tonight our rising education crisis in our nation's most populist state. Almost 100,000 California high school seniors failed a test that they are required to pass in order to graduate, and black and Hispanic students in California failing that test at an alarming rate along with alarming dropout rates. Bill Tucker reports.

(BEGIN VIDEOTAPE)

BILL TUCKER, CNN CORRESPONDENT (voice-over): California has a problem in its public schools, a racial divide in academic achievement. Whites and Asians passed the state's high school exit exams by much greater margin than blacks or Hispanics. IT's a test the kids must pass in order to receive their high school diploma. It's a grade the state is not proud of and is moving to fix.

JACK O'CONNELL, CALIFORNIA DEPT. OF PUBLIC INSTRUCTION: We need to do a better job of attracting the best and brightest amongst us to many of these challenging schools. We know that many of these challenging schools we have larger numbers of teachers that are not fully credentialed and less experienced teachers. And so we need to do a better job of designing programs to address many of these special needs and unique needs of these schools and these student populations.

TUCKER: It's a problem that has the attention of more than just educators in the state. The future employers of California schools are deeply disturbed.

JIM LANICH, CALIFORNIA BUSINESS FOR EDUCATION EXCELLENCE: That's what keeps us awake at night, especially with two-thirds of our kids in California Public Schools being ethnic minority children. These students must exit the 12th grade ready for the world of work.

TUCKER: Compounding this is California's other problem, half the blacks and Hispanics in the state's public schools drop out before they graduate.

PAUL PETERSON, HARVARD UNIVERSITY: We are really in trouble in our high schools. And the California statistics are just the latest sign. When half of our minority kids are not in high school, and 20 percent of the seniors are failing in the exam, that really shows how the whole system needs to be rethought from the beginning.

(END VIDEOTAPE)

TUCKER: This is not just a California problem, it is a national problem. Twenty states currently have high school graduation exams, and in every state, Lou, there is a difference in performance that can be looked at and seen right along racial lines.

DOBBS: As troubling as it is that in California 20 percent of their seniors are failing this test that simply will not be eligible to graduate unless reversing that, the fact is hidden by the educational establishment, hidden by the educational officials in every state nearly is the fact that almost half of all blacks and all Hispanics are dropping out of high school in this country, and that is criminal. Bill Tucker, thank you very much.

Jay Green is the author of "Education Myths: What Special Interest Groups Want To You Believe About Our Schools And Why It Isn't So." He joins us tonight from Fayetteville, Arkansas.

Professor, what would you consider to be the biggest myth, critical myth affecting public education in this country?

JAY GREEN, AUTHOR: The most common myth and the one that's probably the least supported by evidence is the money myth. And the money myth is the idea that our schools if only we gave them more money. What people don't realize when they say schools need more money is, first, how much we spend. It's almost $10,000 per child per year now on average in the United States. And people don't realize that we've doubled per pupil spending, adjusted for inflation, over the last three decades.

And what have we gotten for the increase? What we've gotten is flat outcomes. Student achievement has not gotten better. Graduation rates have actually declined. So, if spending money alone were the answer, things would be better already. Clearly we need to do something more than just give schools more money. And that's the biggest myth.

DOBBS: Let's start with this report. The fact is, 20 percent of the students in California not able to pass the graduation exam, half of blacks and half of Hispanics dropping almost out of high school, every single year.

GREEN: Right.

DOBBS: How in the world can you educate -- let's leave aside right for the moment the discussion about the community, the involvement of parents, the responsibilities of school boards and all of us, for crying out loud -- but how can the education establishment in this country tolerate these criminal statistics?

GREEN: Well, the biggest problem is that we've detached the money that schools get from their performance. And so what we have to do is we have to give schools better incentives to use their money well to improve student achievement.

DOBBS: Professor, let me ask you something.

GREEN: Sure.

DOBBS: Go back 50 years in this country. There was no incentive attachment. There was commitment on the part of educators, a commitment on the part of parents, and students to achieving an education. There was no talk about free markets of education, if you will, aligning incentives and motives and goals. For crying out loud, there was reading, writing and arithmetic, if you will. And it didn't take a genius to come up with a core curriculum. What in the world is going on?

GREEN: Well, a lot of things have changed.

DOBBS: A lot of things have changed, but nothing for the better?

GREEN: Sure. Well, some things for the better. That is we have more resources in school. Unfortunately, we're just not using them well. The other thing is the test scores have not gone down. That's the myth of decline. So kids are not much worse off, they're just not any better off. Any time you spend twice as much money, though, to get the same result, there's a big problem.

DOBBS: You know, frankly, it's great when you say they're the same. They sure as heck aren't the same for Hispanic students in this country and they sure the heck aren't the same for blacks. I mean, what we're doing here -- when we watch half, half of those populations drop out of high school, I mean how in the heck can we sleep at night?

GREEN: Well, I think it's very alarming. And I think that we need to start focusing on what our real problems are, and our real problems are that we have not come up with systems to use money more effectively. And one the biggest changes from 50 years ago is we did not have a unionized teacher workforce 50 years ago. And so schools had greater flexibility in who they hired, how they paid people and who they got rid of if they weren't good.

DOBBS: How about discipline, professor? Does anybody have the guts to talk about taking charge of the classroom and demanding discipline?

GREEN: Well, that's another big change from 50 years ago is that we have restricted the autonomy of schools to discipline their students. And that is also a serious issue.

DOBBS: Professor Jay Green, we hope you'll come back. Unfortunately, this is not an issue or a problem that's going to go away soon, regrettably for this country.

GREEN: Right.

DOBBS: Thank you very much.

Coming up next here, a leading authority on China says the United States is only now awakening to the tremendous threat posed by China's emergence as a global power. That's next. A great deal more. Stay with us.

(COMMERCIAL BREAK)

DOBBS: China is the world's fastest growing military and economic power. My guest tonight warns China cannot continue its unprecedented growth peacefully. John Mearsheimer is professor of political science at the University of Chicago, co-director of the program for international security policy, joining us tonight from Chicago. Professor, good to have you here.

What is your expectation in terms of the relationship between the United States and China over the next few years?

JOHN MEARSHEIMER, UNIVERSITY OF CHICAGO: Well, my argument, Lou, is that if China continues to grow economically over the next 20 years, the way it's grown over the past 20 years, it will translate that economic might into military might, and it will attempt to dominate Asia, the way the United States dominates the Western Hemisphere.

In other words, it will try to make sure that it is, by far, the most powerful state in Asia, and it will go to considerable lengths to push the United States out of Asia, the way the United States keeps other great powers out of the Western Hemisphere.

DOBBS: Professor, as you know, there is a sense, certainly, a view that is, if you will, sponsored by U.S. multinationals, that China is this meek, while vast country, that simply wishes to trade, and to get along with the rest of the world, and that it's absolutely indifferent to its military potential. What do you think?

MEARSHEIMER: Well, the way to think about that problem is to differentiate capabilities from intentions. If we follow the advice of these leaders of multinational corporations, what we'll do is create, over time, a China that has amazing capabilities. It will have a very large economy, and very large military forces. Then the question is, what are the intentions of China likely to be in 10 or 20 years? And there's no way that the leaders of those MNCs or anybody else for that matter can tell us what China's intentions will be in 10 or 20 years. So you are, in effect, creating a juggernaut whose intentions you cannot discern.

DOBBS: As a matter of fact, our capitol markets today are depended upon China for about $700 billion in funds, and we are shipping $200 billion roughly this year through our current account deficit to China. We are funding their emergence and potential rivalry, not only economically but militarily.

Let me show you what Zbigniew Brzezinski says, Professor, who disagrees with your viewpoint. He says, quote: "China's leadership appears rational, calculating and conscious not only of China's rise but also of its continued weakness."

What do you think of Brzezinski's statement?

MEARSHEIMER: Well, there's two points to make. One is that China's leadership today doesn't tell you anything about what China's leadership is going to look like 10 or 20 years from now. And what we care about is what Chinese leadership looks like then, not now. So talking to Chinese leaders today tells you virtually nothing about the future.

The second point I would make is that even if Chinese leaders are rational, and I expect them to be rational, it is rational for them to want to dominate Asia, just like it's rational for us to want to dominate the Western Hemisphere. It makes perfectly good strategic sense for the United States to want to be the most powerful state in the world. But that same logic should apply to China. What is good for the goose is good for the gander.

DOBBS: It's a novel concept in this day and age, Professor, to think that nations should act and could be expected to act in their national interests. Not always the case in this country, unfortunately. John Mearsheimer, we're delighted to have you with us. Come back soon.

MEARSHEIMER: Thank you, Lou.

Taking a look now at some of your thoughts.

Devona Edwards of Andrews, Texas wrote in to say: "Sometimes I feel President Bush is secretly planning to run for president of Mexico. He is certainly is more interested in helping the Mexicans than his own people."

June Venable of Georgetown, Texas asks: "Why is every reason given for the president's low approval rating except his stance on illegal immigration? He could increase it greatly if he would listen to taxpayers rather than big business and those who are pro-illegal."

Zach Noah in Ft. Lauderdale, Florida, wrote in about our poll question Friday, do you support building a security fence along the U.S. border with Mexico? Zach wrote in to say: "Lou, good fences make good neighbors. Yes, we desperately need to secure our border with Mexico."

Tim Spragg in Vienna, West Virginia: "Lou, maybe the American people should save the money on building a fence on our southern border and spend it instead on getting some real representatives in our country."

Susan in Boulder, Colorado: "Yes, a fence is a great idea. If the federal government can't or won't pay for it, I would propose an adopt-a-fence program, where private citizens and corporations can sponsor a section of the fenceline. My company will sign up today."

And Dennis Maher in Eden, Utah: "I've been wanting to donate money to the unfortunate Katrina victims in Louisiana. But I don't know whether to make the check out to Halliburton or directly to Dick Cheney."

Send us your thoughts to loudobbs.com. Each of you whose e-mail is read on this broadcast receives a copy of our book, "Exporting America." And if you'd like to receive our e-mail newsletter, sign up on our Web site, loudobbs.com.

Along the U.S. border with Mexico this past weekend, by the way, members of the Minutemen Project started a new 30-day patrol. Hundreds of Minutemen members stationing themselves along the border in four states, helping U.S. border officials track illegal aliens. Minutemen members also began patrolling our northern borders with Canada as well. Some 2,000 Minutemen members took part in this weekend's patrols.

Still ahead here, the results of our poll tonight and a preview of tomorrow. Stay with us.

(COMMERCIAL BREAK)

DOBBS: Now the results of our poll tonight. Eighty-two percent of you say it does not surprise you that the primary complement to President Bush on his nomination of Harriet Miers is that she's a woman. Eighteen percent of you are surprised.

Thanks for being with us tonight. Please join us here tomorrow. "New York Times" reporter Judith Miller will join us for her first interview since she was released from prison last week. Miller served 85 days for protecting her confidential sources in the White House CIA leak case, a case whose investigation has now gone on for 642 days with no charges.

Also, the floating ice cap in the Arctic Ocean shrinking to the smallest size ever. What's causing it? How will it affect sea levels around the world? We'll be talking with an expert from the National Snow and Ice Data Center. Please be with us.

For all of us here, good night from New York. "ANDERSON COOPER 360" starts right now.

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