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CNN Crossfire

Will Conservatives Pack the Bench?

Aired May 04, 2001 - 19:30   ET

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

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

ROBERT NOVAK, CO-HOST: ... and solicitor general. But the committee's Democratic members walked out. The reason: Democratic senators are being denied veto power over new federal judges in their home states. So a standoff in a Senate divided 50-50. No veto power, no confirmations and President Bush is about to send to the Senate 40 judicial nominations without clearing them with the American Bar Association, either.

But the president is making a goodwill gesture, nominating for the fourth circuit court of appeals Roger Gregory of Richmond, Virginia, an African-American named by President Clinton last year, but not confirmed by the Senate. Will this break the ice, or will the deadlocks stop judges from being confirmed and keep the Justice Department unmanned? And who will be to blame -- Bill Press.

BILL PRESS, CO-HOST: Judge Starr, and Lanny Davis, so what is an impeachable offense?

(LAUGHTER)

We're going to get -- we're going to...

(LAUGHTER)

NOVAK: Wrong show, wrong show.

(CROSSTALK)

PRESS: I'm sorry. I'm sorry.

KEN STARR, FORMER WHITEWATER INDEPENDENT COUNSEL: Time warp. (UNINTELLIGIBLE) historic part.

PRESS: That's right. We are not going to go back there.

Judge Starr, welcome to CROSSFIRE.

STARR: Thanks, Bill.

PRESS: This veto power that Bob talked about, which is also called the Blue Slip, so one home-state senator, if a judge is nominated from his or her state, that senator can singlehandedly block that nomination. It's been going on for years. I think it is outrageous. I think it is undemocratic, but it was the rule that was applied by Senator Hatch, chairman of the Judicial Committee, during the Clinton presidency. And I think Senator Leahy made a point of fairness today.

I would like you to listen to him and respond to it, please.

(BEGIN VIDEO CLIP)

SEN. PATRICK LEAHY (D), VERMONT: I don't want to have to tell people, sure, they set one rule for President Clinton, they're going to set another rule for President Bush. I'm saying set the same rules.

(END VIDEO CLIP)

PRESS: That is fair, isn't it? What was good for the Republicans then should be good for the Democrats now.

STARR: Well, if that's so, Bill -- there is a big squabble, Senator Hatch says it wasn't so. So let's let the senators work that out. Let's let them argue it out. But in the meantime, what you did note was that the Democrats walked out of the vote with respect to two senior Justice Department officials. That's wrong. No linkage, fight over judges. The issues are very important, very important.

Delink. I do not think those nominations should be held up any longer.

Fight over judges, but this is the Justice Department. This is the people's department. This is law enforcement. Those individuals, if they are qualified -- and they are superbly qualified -- should be confirmed and they should be confirmed right away.

PRESS: Believe it or not, I agree with you on that point, for the deputy attorney general and for the solicitor general. Get them done. Get them out of the way. But I'm not -- I don't want to let you off the hook or let you let Orrin Hatch off the hook so easily on the ambiguity.

Let me just read to you, if I may -- this was the rule that Orrin Hatch applied under President Clinton. Here it is -- quote -- called the Blue Slip form, "No further proceedings on this nominee will be scheduled until both blue slips have been returned by the nominees home-state senators."

Again I say, no further proceedings. So in fact, Orrin Hatch gave them a veto then, and now he is saying, oh, no veto, we'll consider it, but it won't amount to a veto. He's changing the rules in the middle of the game, Ken.

STARR: I have known Chairman Hatch for over 20 years. I think he is honorable, and he says that's not the practice.

Now we've got a situation North Carolina -- let's leave North Carolina aside because I think that -- we're talking about the nation now, and not some squabble over a particular state, as important as that state may be.

PRESS: No, this is the whole country.

STARR: No, that's right and that's the key. And what we are also talking about now, are judges being nominated -- and I think this an important distinction -- to the courts of appeals. Those courts of appeals cover many states. The 9th circuit, headquartered in San Francisco, covers some nine states. So should an individual senator, if we're talking about what is good and sound government, should an individual senator, one senator, be able to veto?

I don't think so. In terms of the Constitution, clearly not. And in terms of practice, let's let the senators work out what in fact occurred. We've got Senator Hatch saying this is not the practice. Whatever you have read there is not the way it actually operated in practice.

NOVAK: Lanny Davis, welcome.

LANNY DAVIS, FORMER WHITE HOUSE SPECIAL COUNSEL: Thank you.

NOVAK: I want you to listen to what the chairman of the Judiciary Committee, Orrin Hatch, has to say about this extraordinary procedure that went on this week. Let's listen to Orrin Hatch.

(BEGIN VIDEO CLIP)

SEN. ORRIN HATCH (R-UT), JUDICIARY COMMITTEE CHAIRMAN: The attorney general's top team, who we tried to move, is being held hostage for political maneuvering to seek an unprecedented absolute veto on the president's judicial selection. Now this is unconscionable, and it borders on a serious breach of our constitutional duties, to advise and consent to the president's judicial nominees.

(END VIDEO CLIP)

NOVAK: Now, Mr. Davis, I want to get, in a moment, to the whole question of the -- it's a little more complicated than Bill indicated -- on the so-called "blue slipping." But you know, this weekend, by coincidence is the 44th anniversary of my arrival in Washington as a reporter -- 44 years. I have never seen -- I have seen both parties in control of the Senate, with a different party in control of the White House. I have never seen the deputy attorney general and the solicitor general held up because of judicial appointments. You can't approve of that.

DAVIS: I really don't approve of that. I will probably hurt his career by saying to you. Although I thoroughly disagree with his philosophy, I think Ted Olson...

NOVAK: Nominee for solicitor general.

DAVIS: ... is an absolutely outstanding candidate for solicitor general. Sorry, Ted. I know it's going to hurt your career. But -- but I do also think there is a little bit of humbug here. And Ken Starr may agree with me, that when Bill Lann Lee was nominated by President Clinton not once but twice, to be assistant attorney general for civil rights, a man of high integrity and high ability, but philosophically, not in the place where members of the Senate Judiciary Committee were on the Republican side -- they wouldn't even give him a hearing. And I didn't hear Orrin Hatch, who was the chairman then, complain about advise and consent or the right to name an attorney general or a deputy attorney general.

NOVAK: You're a slick Washington lawyer, Lanny, and you're fogging it up, because he was -- he was blocked on the merits of his own record, not as a lever against judicial appointments. But I want to get this judicial thing straight.

On June 6th, 1989, Senator Joe Biden, who was then the chairman of the Judiciary Committee, a Democrat, and there was then a Republican president in, he said that there would -- the opinions of a senator would not have a veto power. They would only be consultative, as long as the administration, then a Republican administration, consulted with the Senate.

Now, Senator Hatch, followed that procedure when he, as a Republican, was heading the Judiciary Committee, and a Democrat, Clinton, was in the White House. But when the Republican -- when the president, the Democratic president ceased to consult with Republican senators, then he instituted the veto power. That followed the Democratic procedure. Do you think you can understand that?

DAVIS: I can't understand the question, much less Senator Hatch.

NOVAK: You can't understand it?

DAVIS: No. I think that Senator Hatch is now reaping what he sowed. He was one of my favorite senators during the days of the impeachment. Ken, Senator Hatch was always very, very fair on the issues of the impeachment. But what he has done here is reaping exactly...

NOVAK: Explain that.

DAVIS: That blue ship that he sent out is wrong, and we shouldn't do it either. Two wrongs don't make a right, but it is certainly time for the Democratic senators on the Judiciary Committee to say to Orrin Hatch, you've got to acknowledge that we must be consulted, we must be involved.

NOVAK: Consulted, but not a veto.

DAVIS: And we want you to admit publicly that what you did to us in the...

NOVAK: Only because Clinton wasn't consulted.

DAVIS: ... was wrong.

PRESS: Judge Starr, look, I think this blue slip is just almost a distraction. I mean, let's get back to what's really going on. What's really going on, I just want to see if you'll admit this is, the Republicans have the presidency. The Republicans, for the moment, at least, with 50 senators, and Dick Cheney, control the United States Senate.

They got a window, it may be a short window, but they've got a window. They want to take advantage of it to pack the court with as many conservatives as they can right now, and fill all those vacancies they never let Bill Clinton fill. Isn't that exactly what's going on?

STARR: Bill, I could not agree more, when you look at the list that I have seen that's reported in the newspaper, the people who have been nominated or about to be nominated, are tremendously talented people and I'll bet you for the two slots for the D.C. Circuit, very briefly, that my friend Lanny will agree that John Roberts, one of the two, is one of the most outstanding lawyers in the United States. Absolutely outstanding.

He is exceptionally well qualified. Miguel Estrada, the other person who's named, exceptionally well qualified, both splendid backgrounds. Now these individuals, I think, would, in fact, bring a philosophy of trying to interpret the Constitution in accordance with its terms its structure and its history, and some people don't like that. They disagree with that philosophy. But that is fundamental to a presidential prerogative in saying who should in fact serve a lifetime appointment on the federal bench.

PRESS: Well, you didn't really speak to my question, which is: with all of these vacancies, what they are trying to do is get all the roadblocks out of the way, including the fact that some Democratic senator might be able to object using the old rules, so they can get all their guys in while they have the opportunity.

Let me ask you again listen first before you respond to Senator Chuck Schumer, I think, who walked out of that hearing yesterday and had strong words to say about it. Here he is.

(BEGIN VIDEO CLIP)

SEN. CHARLES SCHUMER (D), NEW YORK: They intend to try to abrogate the Senate's role in choosing judges, so that they can create the most ideological bench that we have seen in America ever. Why else remove the ABA? Why else change a process that is time-honored?

(END VIDEO CLIP)

PRESS: Now, we will talk about the ABA a little later, but that is what they are doing. They're trying to pack the court with conservative judges, right?

STARR: They're trying to nominate people, which he has every right to do. Look: that is spin. That is absolute spin.

PRESS: Me? Spin?

(CROSSTALK) STARR: ... with all due respect to the United States senator, he is in fact saying that a conservative Republican president should not be able to nominate individuals of outstanding quality in character who share his philosophy. Now, you can engage in name-calling and the like, but that is in fact what is going on.

Let's look at the record. Carolyn Kuhl in the 9th circuit is one of the nominees. She is absolutely outstanding, a former deputy solicitor general, a very outstanding record as a judge in California. You probably have heard very good things about her. These are outstanding men and women, and they deserve a hearing.

In terms of the Senate's prerogatives, the Senate, under our constitution, has the right to advise and consent. There is consultation -- in fact, Judge Gonzalez, the White House counsel, indicated this very clearly. There is consultation. We want to be consultative, to listen to what the senators have to say.

DAVIS: Can I ask you a question, and it would be great if you could do this tonight: do you condemn John Ashcroft for preventing Ronnie White from getting a hearing?

NOVAK: Oh, God, you...

DAVIS: Wait, wait, John Ashcroft stopped a hearing, and this man was somebody that nobody questioned, his intellectual credentials. John Ashcroft has questioned his decisions and wouldn't allow him to have a hearing.

STARR: I think it was a fundamental disagreement, Lanny, there over his philosophy and especially with the opposition, and it was pretty strong opposition, as I understand it.

(CROSSTALK)

STARR: ... of law enforcement, but I do think...

DAVIS: But should he have had a hearing?

STARR: I do think that nominees, if they're qualified, should in fact have a hearing.

DAVIS: OK.

PRESS: All right. On that point, we will take a break. When we come back, let's talk about the ABA. If the president is not trying to fill the court with his own people, why did he dump the ABA? More CROSSFIRE coming up.

(COMMERCIAL BREAK)

PRESS: Welcome back to CROSSFIRE! Ever since Dwight Eisenhower, every president, Republican and Democrat, has asked the American Bar Association to review and evaluate nominations to the federal bench. But no longer. President Bush sent the ABA packing, possibly looking instead for advice on judges to the Federalist Society, an organization of conservative lawyers whose most prominent member might very well be Ken Starr.

So, is the ABA too liberal? Will President Bush try to pack the court with conservatives? Order in the court tonight with former White House -- Whitewater, I'm sorry -- independent counsel Ken Starr; and former White House special counsel Lanny Davis -- Bob.

NOVAK: Mr. Davis, we'll get to the ABA in a moment, but just as Bill explained to Judge Starr what is really at stake, I'm going to explain to you what's really at stake, and that is that the Democrats are trying to prevent conservative judges from being named.

And it gets pretty blatant. For example, Congressman Chris Cox of California, very distinguished fellow, I'm sure you will agree...

DAVIS: Yes.

NOVAK: ... is set to be named to the 9th Circuit Court of Appeals, and one of the two California senators -- that's a court headquartered in San Francisco -- one of the California senators, Barbara Boxer already has announced against him, and the other, Senator Dianne Feinstein, who is a member of the Judiciary Committee said this -- now, this is incredible: "Chris Cox comes from probably the most conservative district in the state. It isn't the mainstream and the state of California by a long shot." Is that any grounds for criticizing a judicial appointment?

DAVIS: I didn't like the notion of ideological testing of judicial nominees, whether it's conservative or liberal. But you cannot say with a straight face that Republicans senators didn't hold hostage liberal nominees, in fact, refused to even schedule hearings in the last two years of the Clinton administration. Tell me that with a straight face.

NOVAK: I don't have a straight face, but...

DAVIS: Exactly!

NOVAK: But you -- but you -- you are up to your old tricks, Lanny. Every time we talk about some kind of absolutely reprehensible Democratic behavior, you say well, the Republicans always did it. But isn't this what's happening? Isn't this a concerted, calculated plan of action by the Democrats to try to undermine the legitimacy of the Bush presidency, which includes naming federal judges?

DAVIS: I think that Democrats have to be careful here. I think a conservative Republican president has a right to name judges that he is comfortable with philosophically, but there are certain fundamental principles that even Republicans looked at when they opposed liberal nominees, and those fundamental principles from our side will be the respect for the right to privacy of a woman in her relationship...

NOVAK: Pro-choice, you mean.

DAVIS: ... with a physician, and the nominee to the Supreme Court, in my opinion, is going to have to answer that question: is there a right to privacy in the United States constitution that will protect a woman's decision on that issue? And if he doesn't answer that question correctly for me that is civil rights, that is a fundamental issue that is -- he cannot be confirmed if he does answer...

(CROSSTALK)

STARR: That is a litmus test, which is really very unfortunate...

DAVIS: Yes.

STARR: But Lanny is very clear on that, but it is very unfortunate.

PRESS: I want to talk about a different kind of test.

STARR: Sure.

PRESS: And talk about the ABA for just a second, because, you know, in season and out of season, politics is always going to play some kind of a role in these judicial nominations, no matter -- Republicans and -- both Republicans and Democrats. But at least since President Eisenhower there has been one professional organization that didn't look at the politics. They looked at the professional qualifications and the legal career of these nominations and just gave them at least that mark.

When you take away the ABA, whatever you think about it, doesn't that mean that politics is going to play a greater role, not a lesser role? And that's bad for everybody.

STARR: That is absolutely wrong. First of all, the American Bar Association, of which I am a member, has had this role now for some four decades or so. It is nowhere enshrined in the Constitution, and I think it's been a bad practice. It has been a source of division within the ABA.

It has caused enormous amount of hostility among my brothers and sisters in the bar. And why? Because of the importance of Supreme Court nominees, the ABA, for worse, was not able to divorce itself from certain kinds of social issues and simply to focus carefully and clearly on the merits and qualifications of a candidate.

This all goes back, as I think we all know, to the nomination of Robert Bork, one of the most qualified people of his generation, probably the most qualified. And the ABA's conduct there, which was so unfortunate, and very unfair to Judge Bork, I think, has had a really poisoning effect, and we've never ridded ourselves of it.

Now, let the ABA, along with other groups, send their views in. Let's have a little equality here. Let's hear from any group that has a view, whatever that group's perspective is.

PRESS: I'd love to debate the ABA more with you but we're running short of time, so I want to shift to just another topic, a related topic. You wrote a piece recently in "The Wall Street Journal" about judicial activists. I've heard, for decades, conservatives crying about judges, liberal activist judges.

Now you've got conservative activist judges, including a Supreme Court that stopped an election, prevented an election from going forward, and selected a president of the United States. Why aren't you screaming about judicial activism when conservatives do it?

STARR: I'm sorry you didn't read my piece.

PRESS: I did read your piece.

(CROSSTALK)

PRESS: You denied that was activism. That's the most active Supreme Court I have ever seen!

NOVAK: Let him answer.

STARR: If it was -- it was not activist. That's for -- let's have a program on it. It was not activist, because there were seven justices who agreed with the equality principle, that what was under way in Florida was astonishingly unequal -- that the standards, in effect, by virtue of what the Florida Supreme Court were actually...

(CROSSTALK)

STARR: No, let me finish -- were no standards at all. That's point one. Point two, in terms of the Supreme Court becoming involved, Article II of the Constitution and a federal statute clearly said: This is not a matter of Florida law. exclusively. Florida law is important, but ultimately, this is a federal legal question for the Supreme Court of the United States.

DAVIS: I can't resist. That sounds like parsing language to me, Bob. But, anyway.

(LAUGHTER)

STARR: The language of the Constitution, which gives the Supreme Court the final...

DAVIS: Depends on your definition of activism.

(LAUGHTER)

NOVAK: Lanny Davis, it's wonderful to have you back again. Nice to have you, Ken Starr. And Counselor Press and I will be back with closing comments, where I will explain to Press what the ABA really stands for.

(COMMERCIAL BREAK)

NOVAK: Bill, no wonder you want the ABA, the American Bar Association, to pick our judges. Let me tell you what the ABA stands for: abortion rights, quotas, gun registration and licensing, moratorium on capital punishment, universal funding of arts, gay rights and speech codes. The B in the American Bar Association, the ABA, stands for Bill Press.

PRESS: Shame on you, Bob. Look, they're not looking, when they're looking at judicial nominees, on those issues. They're looking at judicial and legal qualifications, which somebody should. But do you know what's happening now in the Senate, Bob?

NOVAK: You deny they stand for that?

PRESS: I just answered that question, Bob. You know what's happening right now in the Senate? What goes around comes around. Republicans had one set of rules. Now they're trying to change it, Bob, and it is not...

NOVAK: Well, that's just a lie. I explained it to you.

PRESS: You ask Joe Biden. Joe Biden says that was not -- or Orrin Hatch says was not the...

(CROSSTALK)

PRESS: Orrin Hatch has changed the rules.

NOVAK: That was not an absolute veto then, and there should never be. It's not precedented, and you shouldn't...

PRESS: Bob, I know people in California who were nominated. Orrin Hatch would never give them a hearing. They've...

NOVAK: That's the last years, because Clinton wouldn't consult.

PRESS: You admit they did it. From the left, I'm Bill Press. Good night for CROSSFIRE. Have a good weekend.

NOVAK: From the right, I'm Robert Novak. Join us again next time for another edition of CROSSFIRE.

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