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CNN Newsnight Aaron Brown
Sandra Day O'Connor Announces Retirement
Aired July 01, 2005 - 22:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
JOHN KING, GUEST HOST: Good evening. I'm John King. Aaron is off tonight.
The battle that Washington long has been bracing for is now officially under way. The resignation of Supreme Court Justice Sandra Day O'Connor today not entirely unexpected, but momentous to be sure. Her arrive value on the bench almost 24 years ago was historic. Her decision to leave, deeply personal. Here's CNN's Candy Crowley.
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CANDY CROWLEY, CNN CORRESPONDENT (voice-over): "I am 75 years old," she wrote in her one-sentence public explanation, "and I need to spend time with my husband." John Jay O'Connnor is in the early stages of Alzheimer's. Friends say he has wanted to return to Arizona, the home they left a quarter century ago when she got a new job.
RONALD REAGAN, FORMER PRESIDENT: She is truly a person for all seasons.
CROWLEY: Sandra Day O'Connor came to the Supreme Court in 1981, notable as the first woman ever to sit on that bench. She leaves now because she is a wife, in between she was one of nine Supreme Court justices.
"There is simply no empirical evidence, she wrote, that gender differences lead to discernible differences in rendering judgments."
When they write her Supreme Court legacy, it will not be about her role as a woman vote but about her role as a swing vote.
ANDREW MCBRIDE, O'CONNOR LAW CLERK, 1988-89: Often you'll see in oral argument that Justice Kennedy and Justice O'Connor are actually being courted by the other justices.
CROWLEY: The record is full of decisions with four conservatives on one side, four liberals on the other and O'Connor moving from one side to the other on a case-by-case basis. She was with conservatives in 1989 in support of a state law prohibiting the use of public resources to perform abortions. She was with liberals in 1992 to uphold the central ruling of Roe v. Wade, establishing abortion as a constitutional right. She voted with conservatives in Bush v. Gore and with liberal in making prayer unconstitutional at public school graduations. She is not everybody's cup of tea. JUDGE ROBERT BORK, FORMER SUPREME COURT NOMINEE: We call her the swing vote. And that's true. But that means that she didn't have any really firm judicial philosophies.
CROWLEY: She thought her role as swing vote was inaccurate media shorthand.
O'CONNOR: But we have an equal voice and I'm no more powerful than anyone else on this court.
CROWLEY: With which Justice Antonin Scalia today politely disagreed. "The statistics show," he wrote, "that during her tenure she shaped the jurisprudence of this court more than any other associate justice."
The space she leaves is enormous and pivotal. If the president chooses a nominee more reliably conservative, those 5-4 decisions become more reliably conservative. It is why Democrats have moved so quickly to throw down her benchmark.
SEN. EDWARD KENNEDY, (D) MASSACHUSETTS: Justice O'Connor was a mainstream conservative and was confirmed unanimously by the Senate. I hope the president will select someone who meets the high standards that she set.
CROWLEY: Justice O'Connor is described by colleagues as decent, distinguished and dedicated, by friends as compassionate, classy and competitive. One remembers a very rainy golf tournament.
TOM WALSH, FAMILY FRIEND: So I said to her, you know, Justice O'Connor, we can quit any time you want to. She said, Tom, we're not going to quit until we're under par.
CROWLEY: After her successor is confirmed the O'Connors will return to Arizona. They have been married for 53 years and another season has come. Candy Crowley, CNN, Washington.
(END VIDEOTAPE)
KING: In the nearly quarter century she has sat on the Supreme Court, fair to say, Justice O'Connor has written thousands of words. Today she stepped away from the bench with a letter to President Bush just 79 words long, signature included. At the White House, those words set in motion a plan already in place. Here's CNN's Dana Bash.
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DANA BASH, CNN CORRESPONDENT (voice-over): Into the Rose Garden, framing a moment four and a half years in the making.
GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: I would choose a nominee in a timely manner so that the hearing and the vote can be completed before the new Supreme Court term begins.
BASH: Selecting a Supreme Court nominee is a little like picking a pope. That's how a senior official intensely involved in the process describes it. Within minutes of Mr. Bush hanging up the phone with Justice O'Connor he gathered an Oval Office version of the conclave, the vice president, the White House Counsel and her predecessor, the attorney general, political adviser Karl Rove, counselor Dan Bartlett and by phone, the White House chief of staff. Top Bush advisers working in top secret had already stepped up their search in recent weeks.
C. BOYDEN GRAY, FORMER WHITE HOUSE COUNSEL: I know that there is a team in the white house that has interviewed the candidates.
BASH: Candidates called from a group of potential nominees gathered since day one of the administration. Helgi Walker worked in the Bush counsel's office and back on day one more than four years ago, she and her colleagues began scrutinizing records, writings, rulings, building profiles.
HELGI WALKER, FORMER BUSH ASSISTANT COUNSEL: To see what kinds of issues in their background might make them harder to confirm than other candidates.
BASH: Even before word of Justice O'Connor's resignation, his team had a short list ready to go.
GRAY: They probably got about five possibilities on that list.
BASH: Though the exact list is closely held, Bush advisers say they include Judges Michael Luttig and Harvey Wilkinson now on the Fourth Circuit Court of Appeals. Samuel Alito, appellate court judge in Philadelphia, John Roberts on the DC Circuit, Emilio Garza, a Texan on the Fifth Circuit. If Mr. Bush wants a woman to replace O'Connor, appellate Judge Edith Jones is mentioned by bush advisers. The wild card is attorney general and long-time Bush confidante, Alberto Gonzales, who will be the court's first Hispanic.
Conservatives, however, call him too moderate because of abortion rulings as a Texas state justice. As Mr. Bush makes his pick, the White House is gearing up for war. Top Bush lieutenants met with outside advisers to finalize battle plans in the works for years. But for now, a plea for a peaceful process.
BUSH: The nation also deserve as dignified process of confirmation in the United States Senate. Characterized by fair treatment, a fair hearing and a fair vote.
BASH: Looking to quiet Democratic complaints, the president did make a couple of calls, talking to the top Democrat on the judiciary committee, promising a meeting and asking for civility.
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BASH: The president hasn't personally interviewed candidates. He will reviewing the materials his aides have for him at Camp David. And next week while he is traveling in Europe and aides say not to expect any kind of announcement until he returns so that means nothing until at least a week from today. Next Friday, John. KING: A momentous choice for this president. The military mission in Iraq increasingly unpopular, his signature domestic initiative, Social Security, among the many Bush initiatives on trouble on Capitol Hill. Do they view this at the white house as a single event, picking a Supreme Court justice, or do they view it as an opportunity to reset the political dynamic in Washington and the country?
BASH: John, they say they are trying to view this as a single event if I talked to one official today who said, look, the president is very well aware that this is somebody who he is going to appoint who could sit on the Supreme Court for 30 years. However, as you mentioned, there is no question, just think about what we were talking about three nights ago and that was the president giving his speech, trying to get back support for the Iraq war, trying to get support back for his presidency.
As you mentioned, we know what's going on on Capitol Hill with Social Security, not to mention the U.S. Ambassador to the U.N., who has been stuck. That's a nominee that has been stuck. So it's very hard to see this particular issue in a vacuum at this point.
KING: In some ways, Dana, breaking news in its own right the president picked up the phone from the White House and called a Democratic senator today. It's something he has not done much during his presidency. At the White House do they truly think the president will consult with the Democrats on this or just a few courtesy calls?
BASH: I think it depends on how you define consult, John. Because, certainly, talking to democrats on Capitol Hill today they said they were very pleased that President Bush did call up there. In fact, Mr. Bush when he had breakfast here at the White House just a few days ago before they knew there was a vacancy but certainly there was a sneaking suspicion. He talked to the Democratic Leader Harry Reid about the process, talked as you alluded to, the leader of the Judiciary Committee on the Democratic side, Senator Patrick Leahy.
But it was general terms, I will talk to you. I would like civility. When it talks to specifics, is he going to run names by him, that's certainly something the Democrats want. But talking to senior officials here tonight, don't look for that to happen. Don't look for that to happen.
KING: Don't look for that to happen. Dana Bash, after a long day at the White House. Thank you very much.
It's been 11 years since Stephen Breyer was nominated to fill the last supreme court vacancy. Cliff Sloan, former associate White House counsel for Bill Clinton headed the White House confirmation team. He's currently general counsel for washingtonpost.com and Supreme Court columnist for newsweek.com. He joins us from Washington along with Shannen Coffin, the former deputy assistant attorney general for the civil division of the U.S. Department of Justice. Welcome to you both.
Let's look at the process just to come to this president and let me start with you, Shannen Coffin. Will this president view this as picking a judge or are there not other political ramifications that have to be taken into account, including his own standing with the American people right now?
SHANNEN COFFIN, FORMER DEPUTY ASSISTANT GENERAL: Well, I think the president has to start with a promise he made when he ran for the White House in 2000 and 2004 and that was to pick the most highly qualified judge, to be a Supreme Court justice. And to choose someone who would strictly interpret the Constitution, starting with the text.
KING: Well, Cliff Sloan, you've been involved in this process. When you come to the president with a list of nominees, if the president looks down and sees law professor, law professor, appellate court judge, does the president raise his hand and say, legacy, I want something more sexy?
CLIFF SLOAN, NEWSWEEK.COM: Well, absolutely, the president is concerned about his legacy. He knows this is one of the most important, long lasting things he can do. And every president is keenly interested in it. Now what they want to do with the choice varies very much. And a lot of people are talking about whether President Bush is going to make history and name the first Hispanic justice it.
KING: Well, naming the first Hispanic justice could mean Alberto Gonzales, his attorney general. Shannen Coffin, you said the president has to keep his promise. And as you well know, he did discuss this in the campaign. He has discussed it since then. Will Alberto Gonzales meet the president's definition of a conservative justice?
COFFIN: I mean, you heard the opening report. There are groups that say he wouldn't. I think the jury is still out on that. I think there are, you know, we have a very deep bench. But I don't think we should be asking the question of whether the president should appoint the first this or the first that. I think, you know, skin color and gender, as Justice O'Connor said, shouldn't be a factor. The factor should be the qualifications of the judge.
KING: Well, Cliff Sloan, Justice O'Connor and others may have said it shouldn't have been a factor. As you've gone through this process, does it become a factor?
SLOAN: Well, it can be. It is a factor. I think with Justice Ruth Bader Ginsburg, for example, I think President Clinton was pleased that he was appointing the second woman to the court and the Thurgood Marshall of the women's movement. But it is only one factor. And he was very pleased to be appointing Justice Stephen Breyer. But a first historically, the first woman justice, Sandra Day O'Connor going back to the first Jewish justice, the first African American justice, those are important milestones for the country.
KING: And how much does it affect this debate, starting with you, Shannen, that we do have a pretty evenly divided Congress and a pretty evenly divided country, how much does that have to factor into the president's thinking here? COFFIN: The answer is that it shouldn't factor into the president's thinking. That he ran a campaign on a major promise that played a major factor in his campaign. And people elected him based at least in part on that promise. So it should not play a factor. The reality is, you know, this is a political process. But he should be choosing his nominees not on the basis of politics but on the basis of their interpretation, their approach to the law.
KING: Stay with me, Shannen Coffin, and help me understand your definition of the president's promise. He promised to appoint conservative justices. Does his base believe that means justices that would overturn Roe v. Wade?
COFFIN: Let me say something at the outset of that. Roe v. Wade right now has six votes in the Supreme Court including Justice O'Connor. The reality is that this nomination is not going to affect Roe v. Wade. But Roe v. Wade is not necessarily the point. There are all sorts of issues that the Supreme Court decides, like last week's Kelo decision that dealt with whether the government can take private property and give it to a private developer. Justice O'Connor, for instance, was dissenting in that case. But there are a lot of issues, I think what we're looking for, what the conservatives are looking for, is someone who will realize the limited role of the courts in our society. There's a lot of breathless talk John, right now, about the importance of a swing vote and the reality is, that simply reflects just how massively involved in our lives the Supreme Court has become.
KING: And Clifford Sloan, this may end up being the last word. I doubt this president will follow the Clinton playbook but you see the Democrats coming out today, essentially baiting him, saying Bill Clinton consulted Orrin Hatch, conservative Republican senator from Utah and offered him to look at the names or to bounce off the names. Did he give those Republicans veto power?
SLOAN: No, it wasn't veto power. It was a consultative process. I think President Clinton thought it very important that his Supreme Court nominees had broad acclaim across the board. And Orrin Hatch said, look, those wouldn't be my first choices but they are outstanding nominees and I can support them enthusiastically and I think President Clinton thought that was a very important value to be upholding in the Supreme Court nomination process.
KING: And Cliff Sloan, given what we have seen in the judicial nominations, the fight over district court judges, the fight over appellate court judges, is that a path you think President Bush will take at this moment or is this fight too far along to going back to being friendly?
SLOAN: Well, I'm not sure. I think the president and the White House are going to make their decisions on that. I will say this, a Supreme Court nomination process is the most intense process manageable. And you mentioned the prior fights over other judges. That's going to be like a preseason exhibition game compared to the Super Bowl when we get into this process.
KING: And Shannen Coffin, the last word. Should President Bush call up the Democrats and say here's the two or three on the short list?
COFFIN: No, he shouldn't. Consulting is one thing. But the minority of dissenters doesn't have a veto power over the president's decision. And the Constitution gives the president the sole authority to nominate. The Senate's involved in the appointment process, but not in the decision of who the nominee is.
KING: Interesting weeks, perhaps months ahead. Shannen Coffin and Clifford Sloan, thank you for helping us understand the process we about to enter into. Thank you both, gentlemen.
SLOAN: Thank you, John.
COFFIN: Thank you.
KING: Just about a quarter past the hour now. Time for a look at other stories making news tonight and for that we turn to Sophia Choi at Headline News in Atlanta. Good evening, Sophia.
SOPHIA CHOI, CNN HEADLINE NEWS ANCHOR: Hi there, John. Well, there are conflicting reports about the three young suspects in the disappearance of Alabama teenager Natalee Holloway. Aruba's attorney general has told the Associated Press that the three have been charged with murder. Aruba's chief government spokesman, though, denies that but predicts charges could come as soon as Monday. Holloway vanished on May 30th while on a end of the school year trip.
The Pentagon has raised the death benefit for soldiers killed in combat. It has been $12,400. Families will now get $100,000 tax free. The benefit is retroactive to the start of the war on terror just after 9/11.
Attorneys have filed papers to keep two reporters out of jail. Matt Cooper of "Time" magazine and Judith Miller of the "New York Times" are in trouble for refusing a court order to reveal their sores for a story. Today, "The Times" surrendered Cooper's notes to the court. Attorneys for Miller said she will never reveal her sources, so there's no point of depriving her of her freedom.
Grammy winning rhythm and blues artist Luther Vandross has died. During his career, Vandross sold more than 25 million items. He suffered a stroke in 2003 and died today at the age of 54.
And final preparations are under way for this weekend's Live 8 concert. Some of the world's most popular bands will perform in 10 cities around the globe. The concerts get their name from the upcoming G8 summit an attempt to pressure world leaders to do more to eliminate extreme poverty.
And with that as a backdrop, CNN will devote an hour this weekend to stories from Africa, the lives in the balance, the poverty and promise, can we save them. That's the name of the program. Christiane Amanpour reporting. And you can see it here on CNN Saturday night 8:00 p.m. Eastern Time.
And remember, a new feature we want to tell you about. At cnn.com click the video link and you will be able to watch video as often as you want, all for the price of a barrel of nada, nothing, or two bbl of nada for our Canadian friends. John, back to you.
KING: Maybe three bbl nada.
CHOI: Right.
KING: Thank you, Sophia.
In a moment, back to the Supreme Court. And a deeper look at the larger question -- why, why does it matter? What's really at stake here?
In other words, it does matter.
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UNIDENTIFIED MALE: The Supreme Court can affect everything that moves and everything that breathes.
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KING: Also tonight, with such high stakes the senate gets ready to advise and consent ...
(BEGIN VIDEO CLIP)
SEN. PATRICK LEAHY, (D) VERMONT: Excuse me a moment, I've got to take a call from the president.
(END VIDEO CLIP)
KING: Or will it be delay and dissent with a nuclear option back on the table?
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UNIDENTIFIED MALE: President Bush today nominated Ben Franklin.
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KING: And who are the forces behind the debate? From the airwaves to the war rooms, for me, the fight of a lifetime.
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UNIDENTIFIED MALE: Will George Bush choose an extremist to threaten our lives?
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KING: Oh, yeah, we'll look at that, too. No question too large, after all this is NEWSNIGHT.
(COMMERCIAL BREAK) KING: Oh, as you might imagine, the Web is buzzing over the Supreme Court story and what comes next. This afternoon a court watcher at slate.com had this to say about Justice O'Connor. "She didn't thrill me, but she also didn't scare me." Chances are, though, this won't be the case for whomever President Bush nominates. Given the divided state of the country, he or she will almost certainly thrill some people and scare others. And given that, he or she may also touch off a donnybrook in the Senate, where they're still cleaning up from the last one. Here's CNN's Joe Johns.
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JOE JOHNS, CNN CORRESPONDENT (voice-over): In Burlington, Vermont, the top Democrat on the Senate Judiciary Committee was holding a news conference. He's talking about how President Bush needs to consult senators on the Supreme Court when he's interrupted.
LEAHY: Excuse me just a moment, I've got to take a call from the president.
JOHNS: The process has begun. Depending on who the president picks, this could turn from consultation to confrontation. Because O'Connor has been such a key vote on reproductive rights, the fight over her replacement will be intense. The chairman of the Judiciary Committee, a Republican who supports abortion rights, says this is an unavoidable issue.
SEN. ARLEN SPECTER, (R) PENNSYLVANIA: Will reproductive rights be a focal point of the hearing? I think they would be, naturally, because that's been very, very much on the minds of so many Americans.
JOHNS: The person who replaces Justice O'Connor will be front and center on abortion. This fall the court will hear a case involving a parent's right to be notified when their underage daughter wants an abortion and lower courts are now struggling with the controversial ban on late-term abortion procedures. Democrats are trying to box the president into picking a nominee who is what they describe a moderate conservative.
SEN. HARRY REID, (D-NV) MINORITY LEADER: There are so many people out in the mainstream of American jurisprudence, people who are conservative, who meet, I think, all the ideological bents of the president, who would fit into what you're looking for in the senate to confirm someone like this.
JOHNS: Conservative Republicans are unlikely to be satisfied with a moderate choice.
SEN. SAM BROWNBACK, (R) KANSAS: I'm looking for somebody to go into court that looks at the Constitution and enforces it as the document, not as trying to bring rights out of the air that are not in the document.
SEN. JOHN MCCAIN, (R) ARIZONA: We are here, 14 Republicans and Democrats ... JOHNS: The gang of 14 may hold the key. These moderate senators from both parties forced a deal earlier this year to avert a crisis over lower court judges. The Democrats promise not to use a filibuster to block all but extreme nominees and the Republicans promise not to ram through the judge by using the so-called nuclear option and wiping out filibusters entirely. Senator John Warner, one of the most powerful Republicans on the hill and a key member of the moderate group said the president would be well advised to avoid a nasty fight.
SEN. JOHN WARNER, (R) VIRGINIA: This nomination of the first Supreme Court justice by this distinguished president gives him an opportunity to be a uniter, not a divider.
JOHNS (on camera): The key factor here is the president's nominee, Mr. Bush has shown again and again that he's not afraid of confrontation, which could mean the Senate is in for a real battle. Joe Johns, CNN, Capitol Hill.
(END VIDEOTAPE)
KING: So we've set the stage at the White House and on Capitol Hill. On next to the war rooms. They've had 11 years to get ready and make no mistake, to them, this is the big one. Here's CNN's Tom Foreman.
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TOM FOREMAN, CNN CORRESPONDENT (voice-over): Within minutes of the retirement announcement the storm began. Dozens of activist groups lining up their troops, conservatives, liberals, special interests, fighting to help determine the future Supreme Court.
TONY PERKINS, FAMILY RESEARCH COUNCIL: We in the conservative movement have been waiting over a decade for this moment in time to see a philosophical shift of the court.
KIM GANDY, NATIONAL ORGANIZATION FOR WOMEN: This is a state of emergency for all of the women in the United States and all of the women around the world.
FOREMAN: These groups have been building multimillion dollar war chests setting up phone trees, ramping up e-mail campaigns, and preparing ads for just this moment.
UNIDENTIFIED MALE: President Bush today nominated Ben Franklin. Democrats immediately denounced Franklin for his close ties to the energy industry.
FOREMAN: This ad from the right and this one from the left are already airing in select markets, places that swing vote senators call home.
UNIDENTIFIED MALE: Will George Bush choose an extremist who would threaten our rights and support even more government intrusion into our lives? FOREMAN: Liberals say they have substantial support.
RALPH NEAS, PEOPLE FOR THE AMERICAN WAY: We have 750,000 members and activists across the country. In the last hour or so we have been contacting them all.
FOREMAN: And tit for tat conservatives say the same.
JESSICA BOULANGER, PROGRESS FOR AMERICA: We've been ready for months to combat the dishonest political smears from the left.
FOREMAN (on camera): It's all a bit strange when you think about it, with left and right and center already arguing furiously over the president's next Supreme Court nominee when none of them know who that will be.
(voice-over): Nonetheless, the war rooms are cranking. The emails are flying. Talk radio is buzzing.
UNIDENTIFIED MALE: So I think they will reap a bitter harvest.
FOREMAN: And the long, hot summer has just begun.
UNIDENTIFIED FEMALE: This is a nasty season in politics here in Washington.
FOREMAN: Tom Foreman, CNN, Washington.
(END VIDEOTAPE)
KING: And standing by in Washington to help us better understand all of this is Stuart Taylor, legal columnist for the "National Journal" and contributing editor to "Newsweek" and in Charlottesville, Virginia, Dahlia Lithwick, senior editor and legal correspondent for "Slate." Good to see you both. Let's begin with the simple question. You write how O'Connor and the Court have drifted to the left. I assume your expectation is that this pick will bring the Court back to the right.
STUART TAYLOR, "NATIONAL JOURNAL": Well, I think that certainly what the president's constituency is looking for. Except for the very large possibility that for reasons of ethnic politics and personal preference he might choose Attorney General Alberto Gonzales. And it's not at all clear where Mr. Gonzales would come down on the big issues on which Justice O'Connor has gradually drifted towards the liberal side.
KING: Let's stay there for a second. Dahlia, the joke is many in Washington are saying that Gonzales is Spanish for Souter. What would happen to this fight? We expect this polarizing fight. Liberals against conservatives. The interest groups, as Tom Foreman just noted, ready to spend millions of dollars. What would happen if the president picked Alberto Gonzales?
DAHLIA LITHWICK, "SLATE MAGAZINE" Then you would have a really interesting scenario where you would have the political right saying, no, he's a wimp and he's soft on abortion and soft on affirmative action. And the left wing saying, no, he's a fascist. He' the architect of torture to policies. So you'd have everybody going berserk and I'm not sure anybody would be happy.
KING: Let me start with you, Stuart Taylor. You have listened to this president when he talked about what he is look for in a justice. If you look for the short list that seems to be in the public domain, who would it be? Who would best fit the description?
TAYLOR: Well, the justices he's praised are Antonin Scalia and Clarence Thomas. If you take them as you take them for models, and he hasn't quite said they'd be models, probably judge on the court of appeals south of Washington for the Fourth Circuit named Michael Luttig is the conservatives favorite, sort of. Sort of we think he would be like a Scalia type of judge. Another who is a little bit less well-known and a little bit more of a question mark but who is very well thought out in conservative movement is Judge John Roberts who is a federal appeals court judge in Washington. A third is Michael McConnell, yet another appeals court judge in Salt Lake City.
And there's a list of others. But Attorney General Gonzales stands apart from those people because he doesn't really have, apart from what Dahlia, mentioned, his track record as White House counsel, he doesn't have a clear record on issues like abortion, affirmative action. To the extent he does he looks kind of moderate, at least to the conservatives who are worried that he wouldn't be what they want.
KING: And Dahlia Lithwick, as the president ponders his choice, what is the Rehnquist factor?
I assume that the president thinks that within a matter of months, or no more than a year or so, he will have another vacancy.
LITHWICK: I think that's true. I think in some sense we thought -- when we though Rehnquist was the one who was going to be replaced, that looked like that was going to be a dress rehearsal for what we're going to get first, which is the really insane confirmation hearing. Replacing conservative Rehnquist with another conservative will not have a really big net effect on the court.
I think that he may say, since I'm going to get to replace Rehnquist fairly shortly, I may put in a Harvey Wilkinson from the 4th circuit, a Michael McConnell, an Alberto Gonzalez, some one who's a little bit more palatable to the left and save the really big ugly fight for later.
KING: I want to ask each of you in closing -- and I'll begin with you Dahlia -- let's set ideology, judicial philosophy aside, let's think about the internal dynamics of the Supreme Court. Sandra Day O'Connor ended up in the middle, ended up being the swing vote on a lot of decisions. Many say that's because she was the politician, a member of the Arizona senate before she came to the court. What is missing when she steps aside?
LITHWICK: What's missing is that crucial person, that pivot at the center who is willing to look case by case, put ideology aside and say I just want to do good, old fashioned equity. I want to get to kind of the right result here. I'm not that interested in reshaping the entire legal landscape. I just want to do narrow case by case. There are benefits and there are real setbacks to that kind of approach, but that will be gone.
KING: Stuart Taylor?
TAYLOR: And I think she is the only person who has ever stood for election now on the Supreme Court. And chances are that her successor will never have stood for election. I think that -- at least in the old days when politicians needed to try and build moderate coalitions, that led to the kind of gift that Justice O'Connor has for finding the center. And that's becoming a lost art in Washington as Congress becomes more. And more polarized and unfortunately, it may become more of a loss start on the Supreme Court, too.
KING: I think we will learn much more about that in what is likely be a polarizing fight ahead. Stuart Taylor, Dahlia Lithwick, thank you both for joining us tonight.
And coming up on the program, NEWSNIGHT'S Jeff Greenfield on the dilemma that President Bush faces.
And the new release by the Mexican Post Office that certainly isn't getting a stamp of approval north of the border.
From New York and around the world, this is NEWSNIGHT.
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KING: Having laid out the who and the how, it's time for the why. And as we've been hearing tonight from many, that means abortion. In a recent CNN/USA Today Gallup poll, 79 percent of Americans surveyed said they believe abortion should be legal under at least some circumstances. Nearly one-third support the right to have an abortion in most or all cases. And two-thirds say they want the next justice to uphold Roe v. Wade.
Yet, there's a disconnect. When asked whether the choice of a new justice matters to them, less than half says yes. History on the other hand is 100 percent clear. Even small changes on the court can make a big difference.
Here's CNN's Jeff Greenfield.
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ANNOUNCER: Democrats will attack anyone the president nominates.
ANNOUNCER: Will George Bush choose an extremist who will threaten our rights?
JEFF GREENFIELD, CNN CORRESPONDENT (voice-over): The fight over a new justice began even before Sandra Day O'Connor announced her resignation today and almost from the moment that resignation was announced the line were being drawn for a major struggle.
SEN. EDWARD KENNEDY, (D) MASSACHUSETTS: If the president abuses his power.
SEN. SAM BROWNBACK, (R) KANSAS: Well, I think the president should make the choice on this.
GREENFIELD: So maybe it's time to ask one simple question -- why? Why does the choice of a new justice promise to be the most consequential domestic issues so far of George W. Bush's presidency? The roots go back some 200 years when Chief Justice John Marshall ruled in Marbury vs. Madison that the court has the power to strike down laws that violate the constitution. And throughout our history, the Supreme Court has shaped American history to its roots. The Dred Scott decision of 1857 holding that slaves, were in effect property, set the stage for the Civil War.
UNIDENTIFIED MALE: I defy anyone to read the opinions concerning the AAA.
GREENFIELD: In the 1930s when the court repeatedly struck down New Deal legislation, FDR tried and failed to pack the court. And when it reversed itself, the Supreme Court in effect ratified a massive expansion of federal power. It outlawed school segregation in 1954 and helped birth the modern civil rights revolution, outlawed organized prayer and Bible reading in public schools, changed the shape of legislative and congressional districts, changed the way police across the nation deal with criminal suspects as television watchers well know.
UNIDENTIFIED FEMALE: You have the right to remain silent.
GREENFIELD: It found a right of privacy in the constitution that was used to strike down laws that banned birth control, and then abortion, and then homosexual behavior. The court even had the final say in a disputed presidential election.
For conservatives, like former solicitor general Charles Fried, an activist, liberal court explains why the choice of a justice has now become so politicized.
CHARLES FRIED, HARVARD UNIVERSITY: The Supreme Court was making new law and overturning precedence sort of once a week. And they were extremely active and people began to think, well, these guys are -- and they were all guys -- are just politicians. They're just making things up. And we might as well have our people making things up if that's the way it's going to be.
(END VIDEOTAPE)
GREENFIELD: And now right and left have plunged into the Supreme Court political argument with such fervor over the last couple decades, John, that it really makes President Bush's position a really tricky one.
Right after the election, as you remember, some prominent conservatives said to President Bush publicly, we got you this second term. And what you owe us first and foremost is a revamped Supreme Court. And with Sandra Day O'Connor retiring rather than Chief Justice Rehnquist, as some of your other guests have told you, they see a chance to revamp it with one Supreme Court nominee. Similarly the liberals are saying, all the Democrats on the Senate, hold the line, don't you dare let a conservative on that court even if it takes a filibuster. And that's, I think, where we are right now.
KING: And if the president went the personal loyalty route and named his friend Alberto Gonzalez at this juncture, would those conservatives to whom he has been so loyal for four-and-a-half years pitch a fit, or just be madly quiet.
GREENFIELD: Take a look at the Bob Novak column of a few days ago describing conservatives, and Bob Novak has great lines into the conservative movement, describing their reaction to him as fear and loathing. There's been a saying in the conservative movement for years, Gonzalez is Spanish for Souter. And by that, they mean that's another David Souter who the first George Bush appointed. We were told conservatives say that he was one of us, that he turned out to be a solid member of the liberal block.
Fairly or not, that's, I think, a lot of them see him.
KING: And we're going to ask Jeff Greenfield to stay right here and stick around. We'll be joined by CNN's legal eagle Jeffrey Toobin for a NEWSNIGHT conversation. Can't be that. Trust me, because this is NEWSNIGHT.
(COMMERCIAL BREAK)
KING: And continuing with Jeff Greenfield. We're also joined tonight in our NEWSNIGHT conversation with CNN legal analyst Jeffrey Toobin.
And Jeffrey, let me begin with you, help the viewers at home understand. We hear swing vote, the person on the court who shapes the 5-4 decisions. What is in the pipeline for the next term that a new court, absent Sandra Day O'Connor, might be different?
JEFFREY TOOBIN, CNN SR. LEGAL ANALYST: Assistant suicide in Oregon. Parental notification law on abortion in New Hampshire.
You know, the social issues that are the most hot-buttons issues in American politics are all heading to the Supreme Court. Gay marriage is going to be there sooner rather than later. All those issues will wind up in front of this court.
KING: All those issues that are legal issues, Jeff Greenfield, but also among the most contentious political issues in the country. Hearings held in the fall heading into a congressional election year. Any chance the president could lose this one?
GREENFIELD: May lose the Supreme Court?
KING: Yes. GREENFIELD: Well, with one exception, Lyndon Johnson trying to elevate Abe Fortas in 1968, very exceptional circumstances, I think you can take this to the bank, as they say. When a president has the Senate in his own party, he gets his nominees confirmed.
The question I wonder is, supposing he were to put up a relative centrist, a Gonzales, what do the Republican senators who are presidential wannabes and have to play to their conservative base just as Democrats have to play to the liberals, what does a Sam Brownback, what does a George Allen and even to some extent, what does a Bill Frist do? Do they express displeasure if the conservative base is angry? That might be one of the more interesting political developments. I can't imagine that they actually would vote against the president.
TOOBIN: I don't think they'll vote against him. They will grumble. Their supporters will grumble, but whoever he puts up, barring some actual scandal, barring a Clarence Thomas type situation, where there is an incident, there is a law enforcement issue, I think whoever he puts up gets confirmed, and I think the idea that it might be a moderate is virtually out of the question.
KING: Let me ask you a political question, to each of you, but there is a micro/macro I think to this, in the sense that Sandra Day O'Connor was the only elected politician, the former Senate majority leader in the state of Arizona, on the Supreme Court. In terms of internal court politics, she helped broker many compromises, obviously. She wrote a lot of 5-4 decisions. What is the vacuum? What's missing on the court?
TOOBIN: Well, it wasn't so much that she brokered anything. She positioned herself at a place where she knew she would control the decision. So, you know, she was a savvy reader of her colleagues. And I think more than, you know, sort of pushing them around -- because they're a very independent bunch -- she knew where the center was, and she put herself so that she controlled the decisions.
That's -- when you start to get into super partisans, when you start to get into like Scalias and Thomases, or on the other spectrum, Thurgood Marshalls, they didn't worry about that. They said what they believed, and they ruled accordingly.
GREENFIELD: But you make a really interesting point. The Supreme Court used to be filled with elected politicians. Earl Warren was governor of California. Hugo Black was a senator from Alabama. And they did leaven the process a little bit, even -- at least because they understood the real world. And even the fact that Sandra Day O'Connor picked Friday of July 4th weekend to resign suggests a certain indifference to, if not disconnection, from the way most people live.
KING: Most people live.
Let's go back to the real world of the president, who has to make this choice. He's not at 60 percent, he's not even at 55 percent in most polls. He's pretty low in the polls. He's struggling overseas with Iraq. He's struggling at home with Social Security. Neither one has anything to do with the Supreme Court, but?
GREENFIELD: But, just a couple of nights ago on this very broadcast, I did a piece where a well-known conservative writer, Jonah Goldberg, assessing Bush's problems said, you know, the one thing that he could most use right now is a knock-down, drag-out fight that reminds conservatives why they like him, and Peter Beinart, a liberal writer for "The New Republic," said exactly the same thing, that a Supreme Court fight, just in a purely political sense, may be exactly what the president needs to remind his voters why they like him.
TOOBIN: And we have to also remember who George Bush is. He is a conservative. He is not his father. He has deeply-held convictions about issues like what he calls the culture of life. He is going to appoint a Supreme Court justice who shares those convictions. And, you know, I think that's what people like about him, and it's what people don't like about him. But the idea that he's going to sort of calculate, well, my poll ratings are at this stage so I need to name a justice who will help me thread this needle -- no way. He's a conservative and he'll name a conservative justice.
KING: Jeffrey Toobin, Jeff Greenfield, maybe send a note to Justice O'Connor saying why, why Friday night before July 4th? I don't know.
(CROSSTALK)
GREENFIELD: What can I tell you?
TOOBIN: Justice Greenfield (INAUDIBLE).
GREENFIELD: Another Supreme Court attack on the press.
KING: I don't think we'll be seeing Justice Greenfield. Just a prediction. Thank you both very much.
And still ahead, Matt Lauer was nothing. Tom cruise is now up against Brooke Shields, and she's loaded for bear. From NEWSNIGHT -- from New York, excuse me, this is NEWSNIGHT.
(COMMERCIAL BREAK)
KING: And a bit past quarter until the hour, time to check back in with Sophia Choi of HEADLINE NEWS.
CHOI: Hi there, John. For a third time in a week, there's been a shark attack off Florida's Gulf Coast. A 19-year-old from Austria was bitten on the ankle while he was swimming in chest-deep water. Doctors say his prognosis is good.
Actress Brooke Shields today replied, in a manner, to Tom Cruise. She wrote an op-ed piece in "The New York Times" saying the actor's recent comments about postpartum depression are a disservice to mothers everywhere. Cruise recently said there's no such thing as chemical imbalances that need drug treatment, and suggested that depression could be treated with exercise and vitamins. Mexican President Vicente Fox says there's nothing racist about his country's postage stamps that feature a popular Mexican comic book character. U.S. civil rights activists say the drawings are offensive and want the stamps withdrawn. President Fox says no.
And thanks to the controversy, the stamps, you guessed it, have sold out.
And a new feature we want to tell you about once more. Log on to cnn.com and click the video link. You'll be able to watch video as many times as you want, all for about what you would pay for the sun in the sky -- John.
KING: Thank you, Sophia. Have a great weekend.
CHOI: You too.
KING: And still ahead on NEWSNIGHT, a Supreme Court battle past and accusations of sexual harassment that set it off. Where is the accuser today?
(COMMERCIAL BREAK)
KING: Battles over Supreme Court nominees are often fierce. This one was. The year was 1991, and Clarence Thomas was in the midst of his Senate confirmations hearings when a law professor from the University of Oklahoma came forward with accusations of sexual harassment. As part of CNN's anniversary series, "Then & Now," we look back tonight at the controversy and catch up with Anita Hill today.
(BEGIN VIDEOTAPE)
ANITA HILL: I have no personal vendetta against Clarence Thomas.
UNIDENTIFIED FEMALE: When law professor Anita Hill came forward with sexual harassment charges against a future Supreme Court justice during his Senate confirmation hearings, it shocked the nation, divided and captivated it at the same time.
HILL: I seek only to provide the committee with information which it may regard as relevant.
CLARENCE THOMAS: I've heard enough lies.
UNIDENTIFIED FEMALE: No matter who you believed, Hill's televised Senate testimony brought workplace sexual harassment into the forefront.
HILL: It's good to be home.
UNIDENTIFIED FEMALE: After it was over, Hill went back to teaching law at the University of Oklahoma, but her life would never be the same.
HILL: I had no appreciation for the fact that there would be so much attention to this issue, and that I would become a symbol of the issue.
UNIDENTIFIED FEMALE: Hill wrote a book about her experiences called "Speaking Truth to Power." She is now 48 years old and teaches at Brandeis University at Massachusetts. What drives her, she says, is a responsibility to her students.
HILL: They deserve a better society. That is what motivates me, and I think that I can be a part of creating that. Having given that chance, I don't want to blow it.
(END VIDEOTAPE)
KING: Looking back at the newsmakers of the last quarter century as we celebrate 25 years of broadcasting here at CNN.
And we'll wrap things up in just a minute.
(COMMERCIAL BREAK)
KING: "Can We Save Them?" The G-8 and global poverty, a CNN special hosted by Christiane Amanpour Saturday, 7:00 p.m. Eastern. Hope you catch it here on CNN. A big news day. A Supreme Court vacancy. We thank you for sharing it with us. I'm John King in New York. Have a great weekend. Good night.
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