Senate Judiciary Committee members will finally get their chance to publicly grill Supreme Court nominee Samuel Alito today after a week of intense grass-roots lobbying by progressive and conservative interest groups.
With a longer, and more controversial, paper trail than Chief Justice John Roberts and the court's swing seat at stake, Alito is expected to face tough questioning from senators on issues such as the limits of executive power, the role of precedent, affirmative action and religious expression, based on statements from senators and three letters sent to Alito by Judiciary Committee Chairman Arlen Specter, R-Pa.
Democrats signaled the seriousness of their reservations by considering a procedural move that would force the committee to wait one week before sending Alito's name to the full Senate. Senate Majority Leader Bill Frist, R-Tenn., had wanted a Senate vote next week. With retiring Justice Sandra Day O'Connor, a moderate, serving on the court until her successor is confirmed, Republicans are anxious to install the more conservative Alito.
Sen. Charles Schumer, D-N.Y., a Judiciary Committee member and head of the Democratic Senatorial Campaign Committee, said in a speech last week that Alito should not expect an easy pass. Judge Alito has more to answer for than any other Supreme Court nominee in memory.
When a nominee has taken a position on a legal matter -- particularly when he has done so strongly and stridently, as Judge Alito has, there is a greater obligation to answer questions, Schumer said.
As for a possible filibuster, Democrats are taking a wait-and-see approach until after the hearings. Frist has pledged to "use all of the tools I have" to simply get votes for the president's judicial nominees to the Senate floor.
But experts think a filibuster is unlikely. "I dont think there's enough public interest to justify a filibuster," said Steven Smith, a political science professor at Washington University in St. Louis. An ABC News/Washington Post poll conducted in December showed 54 percent of Americans think the Senate should confirm Alito.
Still, Smith said, there are enough questions being raised by Democrats to make a majority of them inclined to vote no. Sen. Edward Kennedy, D-Mass., another Judiciary Committee member, noted last week that Alito has a steep hill to climb.
Democrats, who will call at least 14 witnesses this week, plan to aggressively pursue the issue of presidential power given the disclosure last month that President Bush authorized secret wiretaps without seeking court-approved warrants. In a 1984 memo to the solicitor general, Alito, then working in the Reagan administration, backed the idea of giving former Attorney General John Mitchell absolute immunity for warrantless wiretaps conducted in the 1970s.
That led Schumer to warn Alito in a Dec. 23 letter that if he refuses to fully answer questions about his views, it will make it harder for members of the Senate Judiciary Committee to vote for his confirmation. Judiciary Committee Ranking Member Patrick Leahy, D-Vt., said the memo deepens the impression of activism that colors Judge Alito's career.
The lag time in holding hearings for Alito, whom Bush nominated on Oct. 31, means questions about checks and balances will likely get more attention than if the hearings had been held just four weeks ago, noted G. Terry Madonna, director of the Center for Politics and Public Affairs at Franklin & Marshall College in Lancaster, Pa.
Another concern for Democrats is a 1985 memo in which the 55-year-old Alito stated that the White House should adopt a policy of gradually undermining Roe v. Wade, the court's landmark 1973 decision that legalized abortion. Alito told Specter, who supports abortion rights, in December that he was solely acting as an advocate, according to Congressional Quarterly.
"It's very difficult to make the case that Alito is out of the mainstream on the basis of memos he wrote 20 years ago," said Ross Baker, a political science professor at Rutgers University in New Brunswick, N.J., who has written several books on the Senate.
Democrats will then likely point to Alito's dissent on the 3rd U.S. Circuit Court of Appeals in 1991, when he stated in Planned Parenthood v. Casey that women should be required to notify their husbands before seeking an abortion. The Supreme Court, in a decision co-authored by O'Connor, overturned the law.
Alito is also likely to face questions about his record on civil rights. A 155-page report released last week by People for the American Way, a progressive group that opposes his nomination, says Alito has argued against civil rights positions 85 percent of the time the appellate court, on which he has served since 1990, was divided. House members of the Congressional Black Caucus oppose Alito, although they cannot vote on his confirmation.
Still, it may take more than simple ideology to stop Alito's nomination. A candidate's likeability can factor into the decision, experts say. And Madonna pointed out that the moderate Specter has voted to confirm stalwart conservatives such as Clarence Thomas.
Unlike Roberts, whose hearings were friendly and who was confirmed 78 to 22 with support from half of the Democratic caucus, Alito's nomination has evoked strong reactions from Democratic senators. Many Democrats fumed that Bush caved to his party's right wing by choosing a nominee nicknamed Scalito for his conservative opinions.
On the Senate floor in November, Senate Minority Leader Harry Reid, D-Nev., said he had significant concerns about Alito, and criticized Bush for failing to consult with Democrats before naming Alito and for choosing a man to succeed O'Connor, the court's first female justice. Alito is Bush's third nominee to replace O'Connor, who announced her intention to resign more than six months ago.
In naming Alito, however, Bush avoided the charges of nepotism that tinged the nomination of Harriet Miers, the White House counsel, and put more emphasis on choosing a candidate pleasing to his base. Alito, who has taken part in some 300 opinions, received the American Bar Association's highest rating last week. Compare that to Miers, who Specter dismissed as needing "a crash course in constitutional law.
The start of the hearings is a welcome diversion for Republicans, several of whom, including President Bush, returned campaign contributions last week from lobbyist Jack Abramoff. Abramoff will testify about his dealings with lawmakers as part of a plea agreement reached on several charges, including conspiring to bribe public officials. Abramoff gave money to both Democrats and Republicans, but his connections were especially close to Reps. Tom DeLay, R-Texas, and Bob Ney, R-Ohio. DeLay has been indicted on separate charges of campaign finance violations in Texas, and announced he would relinquish his role as House Majority Leader.
But Democrats may find themselves frustrated this week because Specter has made clear in the past that, while senators have the right to ask whatever questions they want, nominees have the right to answer only enough questions to win confirmation, noted Madonna, a longtime Specter observer.
The confirmation hearings take place after a heavy lobbying campaign from groups on both sides of the political aisle. Television advertising as of Jan. 1 totaled about $650,000, with conservative groups spending roughly 54 percent, according to the Brennan Center for Justice at New York University. The total is less than the $1.3 million spent on Roberts' nomination, although it does not include last-minute spending. It is also far less than the $18 million Progress for America, a conservative group, had pledged to spend to push Bush's judicial nominees.
Still, the group spent $500,000 on television ads this month backing Alito, and organized a 19-state tour of Alito supporters to try to influence senators in key states such as Louisiana, North Dakota and Rhode Island. The ad lashed out at "desperate liberals [who] make up a steady drip of attacks" against Alito.
This week, Moveon.org is launching a $150,000 ad buy on CNN and on stations in Ohio and Rhode Island, stating that Alito said he wrote his controversial abortion memo in 1985 solely to get a job. And IndependentCourt.org, a coalition of public interest groups, bought radio ads in Arkansas and Louisiana last week focusing on Alito's civil rights record.
Whether such actions will influence senators' votes is uncertain. Baker dismissed the interest group lobbying as political performance art, saying, "Its like the halftime pageant at the Superbowl. There's lot of activity and lots of fireworks, but it doesn't contribute to the score one iota."
A continued push by interest groups, however, could embolden Democrats to fight harder on Alito's nomination -- possibly leading to a brutal showdown over the future of the nation's highest court. That would be fireworks indeed.
Anxious to regain some of the political footing he lost last week, President Bush nominated conservative Appellate Court Judge Samuel A. Alito Jr. to the Supreme Court Monday morning.
In naming the 55-year-old Alito, Bush called him "one of the most accomplished and respected judges in America" who "understands that judges are to interpret the laws, not to impose their preferences or priorities on the people." Bush also called on the Senate to vote on Alito's nomination before the end of the year.
Alito has the professional credibility that both Republicans and Democrats indicated was lacking in White House Counsel Harriet Miers, who withdrew her name from consideration last week to succeed retiring Associate Justice Sandra Day O'Connor. Like Chief Justice John Roberts, Alito has served as an appellate judge, argued cases before the Supreme Court, worked in the Reagan administration and served as editor of his law school journal.
His 15-year conservative record as an appellate judge meant that even before the nomination became official, Alito -- nicknamed "Scalito" or "Scalia-lite" for his conservative opinions -- was drawing fire from Democrats on Sunday political talk shows; Senate Minority Leader Harry Reid, D-Nev., told CNN that Alito's nomination would "create a lot of problems." But it also pleased conservatives who helped to bring down Miers, such as Concerned Women for America, an anti-abortion group with whom the White House consulted this weekend.
Alito's nomination comes as Bush tries to recover from arguably his worst week as president. Along with Miers' withdrawal, the number of U.S. deaths in Iraq passed the 2,000 mark and Vice President Cheney's Chief of Staff Scooter Libby resigned after being indicted on five counts of obstruction of justice, perjury and giving false statements. Naming Alito to the court allows Bush to try to change the conversation in Washington as Special Counsel Patrick Fitzgerald continues to determine whether Deputy Chief of Staff Karl Rove should be indicted.
It's also a way to shore up support among his base at a time when Bush's public approval numbers are at their lowest in his presidency. Because of Bush's weakness, Democrats find themselves in a stronger position to oppose Alito than Roberts, who the Senate confirmed with 78 votes.
Despite Bush's request for speedy action by the Senate, the timetable for Alito's confirmation is in question for several reasons. The first is that Senate Majority Leader Bill Frist, R-Tenn., has said he would like the chamber to recess for the year by Thanksgiving, an already tight deadline given the Senate's legislative agenda. Given that it took about two months for the relatively smooth nomination of Chief Justice John Roberts to make its way through the Senate, seating Alito on the court by the end of the year could be difficult. O'Connor has offered to stay on the court until her successor is confirmed, diminishing the need for a quick confirmation.
On Monday, Frist said he would consult on scheduling with Senate Judiciary Committee Chairman Arlen Specter, R-Pa., noting, "If it's possible to act, I will call the Senate back in to vote, up or down, on the Alito nomination." But Specter noted Monday that Alito has taken part in about 3,500 cases and 300 opinions, which will likely take awhile for the committee to wade through.
Republicans would like to push the nomination through quickly in part to give Democrats less time to build opposition and in part to replace O'Connor, the critical swing seat on the court. The longer O'Connor remains on the court, the more cases she will hear and potentially be able to cast the deciding vote.
The second factor is whether Democrats will filibuster Alito's nomination. Unlike the Roberts or Miers nominations, the White House did not talk with a large number of senators beforehand in order to name Alito quickly. On Sunday, Sen. Lindsey Graham, R-S.C., a member of the so-called bipartisan "Gang of 14" -- which hammered out an agreement not to filibuster any nominee who does not trip the "extraordinary circumstances" clause of its agreement -- ruled out the possibility of filibustering Alito's nomination, saying it would "not stand." The group is likely to meet this week to discuss Alito. But Specter admitted on Sunday he is "very worried" about a filibuster showdown, which could stall Senate business for weeks.
Unlike with Miers, which saw Republicans battling their own and Democrats remaining largely silent, Democrats and progressive interest groups have already pounced on Alito. "Conservative activists forced Miers to withdraw from consideration for this same Supreme Court seat because she was not radical enough for them," Reid said Monday. "Now the Senate needs to find out if the man replacing Miers is too radical for the American people."
And Senate Judiciary Committee Ranking Member Patrick Leahy, D-Vt., who along with Reid wrote Bush a letter Friday asking him not to nominate a divisive candidate, called Alito "a needlessly provocative nomination. Instead of uniting the country through his choice, the president has chosen to reward one faction of his party, at the risk of dividing the country," Leahy said.
Ralph Neas, president of the liberal People for the American Way, said Monday that with Alito, Bush has "guaranteed ... a bitter fight." Neas said the group would mobilize its 750,000 members and work with other organizations opposed to Alito to try to defeat his nomination. "We are going to make sure that Americans understand what is at stake," Neas noted.
What could make Democrats' case slightly more difficult, however, is that a Democratic-controlled Senate confirmed Alito for his current position on the U.S. Circuit Court of Appeals for the Third Circuit when Bush's father nominated him in 1990. Before joining that court, Alito served as U.S. attorney for the District of New Jersey, as deputy assistant attorney general for President Reagan and as assistant to the solicitor general, also in the Reagan White House.
Happy with Alito, Republicans may well argue that Bush should be given deference in choosing a court nominee. On Sunday, Graham told CBS that Bush pledged as a candidate last year to nominate conservatives to the court and "you're going to get a strong conservative." Of course, it will be up to Democrats to point out Republicans' different standards on the Alito and Miers' nominations. Democrats so far appear to be focusing their opposition to Alito more on Bush's decision to succumb to conservative pressure than on Alito's qualifications.
Still, Alito's positions on issues, such as abortion, will be key in the upcoming fight. On several issues, Alito has found himself at odds with positions taken by the majority of the Supreme Court. In Planned Parenthood of Southeastern Pennsylvania v. Casey, Alito argued that women should be required to notify their husbands before seeking an abortion. He also said that Congress should not be able to force state employers to comply with the Family and Medical Leave Act by applying damages when the companies don't follow the law, according to a preliminary review of Alito's record by People for the American Way.
Given that Alito has a lengthy record -- unlike Roberts, who served for only two years on an appellate court -- Democrats will have ample evidence to draw from in questioning Alito about his positions and whether he will uphold Supreme Court decisions, such as Roe v. Wade.
One person likely to be disappointed with Bush's choice is O'Connor, who had pressed Bush to nominate a woman to succeed her. But after the fumbled Miers nomination, the first Supreme Court withdrawal since 1987, Bush opted to find a candidate who was guaranteed to please his core supporters rather than worrying about other considerations. A CNN/USA Today/Gallup Poll conducted this weekend showed that just one in seven of those surveyed thought Bush absolutely needed to nominate a woman for the post. More important to voters, the survey showed, was that Bush name someone with judicial experience. Alito has that. But judicial experience won't be enough to stop a Senate showdown and, possibly, bring on a filibuster.
Facing growing questions from senators and calls from conservatives for a beleaguered President Bush to drop her nomination, White House Counsel Harriet Miers withdrew her name from Supreme Court consideration Wednesday evening.
Miers' nomination process -- which went as roughly as that for Chief Justice John Roberts went smoothly -- was marked by several clashes with Senate Judiciary Committee Chairman Arlen Specter, R-Pa., anger from conservatives who felt Bush betrayed them by not nominating someone with a lengthy conservative record and charges that Miers' main qualification for the court was her friendship with Bush. Still, Miers' decision surprised a city on edge as it waits for word on possible indictments of administration officials stemming from the outing of CIA agent Valerie Plame.
In announcing her withdrawal, Bush pointed the finger at senators who wanted information from Miers about her five years in his administration. "It is clear that senators would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House -- disclosures that would undermine a president's ability to receive candid counsel," Bush said.
But Specter undercut that argument when he said the committee wanted to know the issues on which Miers advised Bush - not necessarily the advice itself. The reality is that Miers would likely have faced a hard time being confirmed by the Senate and endured tough questioning from members of the Judiciary Committee, which was scheduled to start nomination hearings Nov. 7 -- coming at a time when Bush has little political capital to spend.
Bush pledged to name another nominee "in a timely manner" and, given his low public approval numbers, will likely avoid a fight with his conservative base by nominating a candidate who pleases core supporters. Senate Majority Leader Bill Frist, R-Tenn., said Thursday that he looks forward to a nominee who "is committed to upholding the Constitution and who believes in the limited role of a judge to interpret the law and not legislate from the bench."
Depending on Bush's timetable, the Senate could take up the next nomination before it adjourns for the year; the chamber is expected to be in session past Frist's Thanksgiving target date anyway to deal with other issues.
Miers's problems began shortly after Bush named her earlier this month to succeed Sandra Day O'Connor, the court's first female associate justice and who has pledged to remain on the court until her successor is confirmed. Well-known conservatives such as Bill Kristol, David Frum and George Will attacked her on television and in newspaper columns. A website citing conservative criticism of her, withdrawmiers.org, called for Miers to step aside, and television ads paid for by Americans for Better Justice, whose board includes Frum, began airing this week on Fox News, with the line, "Even the best leaders make mistakes."
Democrats found themselves in the unusual role of staying almost quiet throughout the nomination process, letting Republicans take the lead in attacking her. "The radical right wing of the Republican Party killed the Harriet Miers nomination," Senate Minority Leader Harry Reid, D-Nev., said Thursday. But he warned that in choosing another candidate, Bush "should reject the demands of a few extremists and choose a justice who will protect the constitutional rights of all Americans."
Part of the trouble, though, was Miers herself. She performed unimpressively in her private meetings with senators, many of whom emerged unenthusiastic about her candidacy. Most problematic was her meeting with Specter, during which he later said she indicated her support for Griswold v. Connecticut, a key Supreme Court case that helped pave the way for Roe v. Wade. After Miers called him to say that wasn't the case, Specter said he accepted her recollection but stood by his original remarks. His frustration over the episode showed when he said there would be no misunderstandings during her confirmation hearings because there would be cameras present.
The second run-in with Specter came when Miers provided answers to the Judiciary Committee questionnaire that Specter described as "insufficient" and Ranking Member Patrick Leahy, D-Vt., said he had heard called "incomplete to insulting." The senators then asked Miers some follow-up questions, but her answers had not arrived yesterday when they were due, according to Congressional Quarterly. Specter snidely suggested that the court nominee needed a "crash course in constitutional law."
Additionally, both Republicans and Democrats appeared confused as to what Miers' positions on issues were. Sen. Charles Schumer, D-N.Y., noted Wednesday that Miers said in 1989 she would support a constitutional amendment prohibiting abortion except when a mother's life is at risk. But three years later, she gave $1,000 to the Democratic National Committee, and a year after that, she talked about using "self-determination" when dealing with moral issues, such as abortion.
"The $64,000 question remains: Who is Harriet Miers?" Schumer asked.
The White House wasn't able to answer that question, shifting messages several times in trying to gain traction for her candidacy. Administration officials first talked about her role as a friend and adviser to Bush, then as an evangelical and lastly about her qualifications, bringing members of the Texas Supreme Court to the White House to bolster her credentials. But by that time, there was doubt about Miers' intellectual heft for the job, including the release of memos she wrote that demonstrated an almost rock-star admiration of Bush, whom she called "cool" and the "best governor ever."
Even though none of the White House strategies seemed to work, Bush remained determined to push Miers, and said he reluctantly accepted her withdrawal. The decision is a blow for Bush at a time when he faces increasing pressure over the mounting U.S. death toll in Iraq and continued criticism about federal response to hurricanes as well as frustration over rising gas prices. But the chance to nominate another candidate -- of whom his base approves -- could give Bush time to regain his footing and change the court's balance as part of his legacy.
If Bush nominates a known conservative, the battle for O'Connor's seat will likely align along more traditional Republican-Democratic lines, with interest groups on both sides of the aisle spending millions of dollars in coming months. Progress for America, a conservative group that backed both Roberts and Miers, pledged to support Bush's next nominee.
Sen. Trent Lott, R-Miss. suggested on CNN Thursday that Bush find another candidate like Roberts, "who is so qualified, and conservative, that even Democrats would say so." Roberts was an appellate court judge who had argued 39 cases before the court (Miers had never been a judge) and was confirmed with 78 votes.
It is not known whether Bush will choose another woman to fill the O'Connor seat. First lady Laura Bush, among others, had pressed him to do so before he named Miers. Another unknown is whether Bush will turn to someone from his inner circle, such as Attorney General Alberto Gonzales, revisit some of the nominees he passed over earlier this year, or start from scratch. Just 34 of the 154 nominees to the Supreme Court have not been confirmed from 1789 to 2004, according to a Congressional Research Service report released in March.
As Leahy noted in a statement Thursday, Bush's next choice will be his third to fill the O'Connor seat; Roberts was initially named for the associate justice seat before being promoted to chief justice following William Rehnquist's death. Anxious to care for her ailing husband, O'Connor may the person in Washington most anxious for the confirmation battle to be over. "All Americans appreciate O'Connor's willingness to continue her service long past when she had intended to retire from the court," Leahy said.
It would be easy to accept the storyline that President Bush nominated White House Counsel Harriet Miers to the Supreme Court out of weakness because he knew that, as a woman without a long paper trail, she would likely be confirmed.
It would also be wrong.
Yes, Bush (with his 37 percent approval rating, according to a CBS News poll earlier this month), members of the White House staff (facing possible indictments in the outing of CIA agent Valerie Plame) and Republican leaders in Congress (former House Majority Leader Tom DeLay and Senate Majority Leader Bill Frist, specifically) are facing some tough times.
But that doesn't mean they haven't won some big fights this year in Washington, and or they won't win some more. And they're doing it with a sneaky, yet ultimately successful strategy: appearing to lose even when they win.
If that sounds a little strange, consider a few recent episodes. Barring some yet-unknown scandal or a highly unimpressive performance at her confirmation hearings, Miers will join the court as the nation's third female associate justice. And despite the sour grapes of some conservatives who want a candidate with a known conservative record, they'll get a justice who will almost assuredly vote their way on issues such as abortion.
On Tuesday, we learned that in 1989, Miers vowed to support a constitutional ban on abortion except when the mother's life is at risk. That's no surprise, given White House Deputy Chief of Staff Karl Rove's earlier such assurance to Focus on the Family's James Dobson and Vice President Dick Cheney's promise to Rush Limbaugh that he wouldn't be disappointed.
So, Bush may be taking some heat for his choice now, but in the end, he gets what he wants -- a nominee who tips the court's balance.
Earlier this year, Republicans threatened to "go nuclear" and shut down the Senate if they didn't get an up-or-down vote on some of Bush's most controversial judicial nominees (even though Democrats had approved scores of other judges). But when push came to shove, three judges whose nominations Democrats had until then successfully stalled finally got confirmation votes. Republicans may have appeared embarrassed procedurally -- a bipartisan group of senators forged a compromise -- but the end result is they found a way to get some of their judges seated.
Then there was Frist's split with Bush on the issue of support for stem-cell research. Perhaps Frist was trying to bolster his medical credentials after he fumbled the videotape diagnosis of Terri Schiavo, but his position was basically meaningless because Congress doesn't have enough votes to override Bush's threatened veto. (The Senate has yet to vote on the bill, and although the House passed it by 238-194 in May, that's far short of the two-thirds majority needed to overrule Bush.) Again, Republicans looked like they suffered a political blow, but in the end, their position prevailed.
How, and why, does this keep happening? First, Republicans realize that it's the outcome, not the process, that matters. In other words, they're willing to rough up their team and take a loss in the first or second quarter if they know they'll probably still win the game.
Second, Democrats are spooked by the idea of being called obstructionists -- after all, that's how former Senate Minority Leader Tom Daschle, D-S.D., lost his seat last fall. So in trying not to be against what Republicans are for, Democrats end up doing some of the GOP's work for it. Who has been defending Miers as conservative Republicans rip into her? Well, Sen. Barbara Mikulski, D-Md., echoed First Lady Laura Bush's point that criticism of Miers smacks of sexism. And Senate Majority Leader Harry Reid, D-Nev., who recommended Miers for the court, issued a complimentary statement about her that quickly became part of a Republican National Committee release.
Third, Democrats are too anxious to claim any kind of victory, even if it's the Pyrrhic kind. This is somewhat understandable, given Democrats' inability, as the minority party, to prevail on many issues. But when they claimed a win on the filibuster issue by saying they saved a 200-year-old Senate tradition, they also boxed themselves into a corner. Pledging not to filibuster a judicial nominee unless that person trips the "extraordinary circumstances" clause of the agreement means judges who Democrats would normally oppose will likely slip through the confirmation process.
The problem for Democrats is that they haven't learned two lessons that put Newt Gingrich and Republicans into power in 1995. First, don't help the folks in charge. Second, offer a distinct alternative, and positive, vision for where to take the country. Without that, there's no reason for voters to end the majority's reign. The party has had almost five years since Al Gore's loss in 2000 to develop a coherent message, and voters are still waiting.
It helps, to be sure, to run in an election where the president is considered politically weakened, as Bill Clinton was in 1994, and when the party controlling Congress is vulnerable to charges that it is arrogant and out-of-touch with voters, as in 1994. Assuming things don't improve for Bush and Republicans much in the next year (a big assumption), Democrats should have the wind at their backs on these issues. But to truly become a majority party, they need to do more than look like they're winning arguments in Washington; they need to actually prevail.
Just hours before the Supreme Court began its new term on Monday with Chief Justice John Roberts at its helm, President Bush nominated White House Counsel Harriet Miers to succeed retiring Justice Sandra Day O'Connor, launching a confirmation fight over the court's critical swing seat.
In announcing his choice, Bush praised the 60-year-old Miers as a "pioneer in the field of law, breaking down barriers to women that remain ... a generation after President Reagan appointed Justice O'Connor to the Supreme Court."
Bush has under been pressure, including from first lady Laura Bush, to name a woman to succeed the court's first female justice since O'Connor announced her retirement in July. Last week, Bush hinted he might choose a woman by stating that "diversity is one of the strengths of the country." Miers's name soon emerged as a possible successor to O'Connor.
The timing of Miers's nomination is critical for several reasons. With the court's first oral arguments held Monday and O'Connor anxious to step down to care for her husband, who suffers from Alzheimer's disease, the court may have to rehear cases on which it is split 4-4 after O'Connor leaves but before it issues an opinion. O'Connor has pledged to stay on the court until her successor is confirmed. When Justice Clarence Thomas succeeded Justice Thurgood Marshall in 1991, the court heard arguments again in two cases before handing down a decision.
Senate Majority Leader Bill Frist, R-Tenn., said in a statement Monday that he would like the chamber to vote on Miers's nomination by Thanksgiving. Senate Judiciary Committee Chairman Arlen Specter, R-Pa., appeared to back away from a specific date, however, saying, "To the extent we can meet a timetable we will, but thoroughness will be our principal goal."
Bush's announcement also comes as Republicans are anxious to push damaging headlines from the nation's front pages. Last week, Rep. Tom DeLay, R-Texas, stepped down from his post as House majority leader after he was indicted on a criminal conspiracy charge related to campaign donations. This week, he was indicted on a second charge of money laundering. Federal prosecutors and the Securities and Exchange Commission are looking into the questionable timing of a stock sale by Frist. In addition, New York Times reporter Judith Miller revealed publicly last week that Cheney Chief of Staff "Scooter" Libby was her source in reporting on CIA agent Valerie Plame.
The president finds himself in a somewhat stronger position than when he nominated Roberts to succeed the late Chief Justice William Rehnquist on September 5. Then, Bush was battling public anger over the government's slow response to the aftermath of Hurricane Katrina. Bush took pains to appear more engaged personally as the Gulf Coast braced for Hurricane Rita.
Some Republicans greeted Miers's nomination enthusiastically. Republican National Committee (RNC) Chairman Ken Mehlman said Miers is "extraordinarily well-qualified to serve on the Supreme Court." Frist called Miers "an outstanding nominee" who "understands the importance of judicial restraint and the limited role of a judge to interpret the law and not legislate from the bench."
Frist also said he hopes senators can reach a decision on Miers "without probing into confidential and privileged documents." That means Miers's writings in the Bush White House -- as counsel, deputy chief of staff and staff secretary -- may be off-limits to committee members.
Others, however, said Bush missed a chance to move the court permanently rightward. RedState.org Founder and Director Mike Krempasky wrote Tuesday, "Mr. President, you've got some explaining to do. And please remember -- we've been defending you these five years because of this moment."
For their part, Senate Democrats responded cautiously, making clear they want to examine Miers' work both in Washington and in Texas, where she served as general counsel to Gov. Bush's 1994 transition team, as chairwoman of the Texas Lottery Commission and as a private attorney. Because Miers has never served as a judge, she does not have a lengthy public paper trail.
Senate Judiciary Committee Member Edward Kennedy, D-Mass., said in a statement Monday, "The record we have so far is simply insufficient to assess the qualifications of this nominee. While her resume lists impressive qualifications as a practicing attorney, it simply does not give the Senate -- or the public -- sufficient information to determine her qualifications to be a Supreme Court justice and her commitment to core constitutional values."
And in an apparent role reversal of their positions on Roberts -- who the Senate confirmed as the nation's 17th chief justice last week by a vote of 78 to 22 -- Senate Majority Leader Harry Reid, D-Nev., seemed to praise Miers while Senate Judiciary Committee Ranking Member Patrick Leahy, D-Vt., raised questions about her nomination.
Reid said he likes Miers, whom he called "courteous and professional," and noted that the court would benefit from the experience of someone who has been a practicing attorney. "A nominee with relevant non-judicial experience would bring a different and useful perspective to the court," he said. Reid's words quickly appeared as part of an RNC release.
Leahy, who backed Roberts' nomination, said he does not know Miers well, having only met her recently. "What I do know," he added, "is that she has a reputation for being loyal to this president, whom she has a long history of serving as a close advisor and in working to advance his objectives. In an administration intent on accumulating executive power, Ms. Miers's views on and role in these issues will be important for the Senate to examine."
The challenge facing Democrats is how to oppose a nominee who Americans know little about. That's especially true for senators who are running for reelection next year in states Bush carried in 2004, such as Ben Nelson of Nebraska and Bill Nelson of Florida, both of whom voted to confirm Roberts.
Democrats' best argument may be to raise the issue of favoritism in an administration under fire for installing Michael Brown as head of the Federal Emergency Management Agency despite his lack of emergency management credentials. Brown was the college roommate of Bush friend Joe Albaugh, who preceded Brown in the job.
While conservatives wanted a candidate with a strong anti-abortion record, Miers doesn't appear to have one, at least at first glance. In 1992, Miers fought an American Bar Association resolution that would have supported abortion rights, although her opposition is said to have had more to do with the association taking a position on the issue than the position itself. And Miers, who is single, reportedly gave money during the 1988 election cycle to Al Gore, then-Sen. Lloyd Bentsen, D-Texas, and the Democratic National Committee (DNC).
It is unusual, but not unheard of, for a president to nominate a candidate with no experience as a judge. Rehnquist, for example, worked in the Justice Department under President Nixon, but never served as a judge.
Although Miers worked with senators in guiding Roberts' nomination through the confirmation process, she could face a tough road herself. That's because, unlike Roberts, she would succeed a justice who is the court's swing vote. In an interview that appeared last week in The Washington Post, DNC Chairman Howard Dean did not rule out the use of a filibuster. Miers appeared on Capitol Hill after her nomination Monday.
Much will depend on whether the so-called bipartisan "Gang of 14" senators decides that Miers trips the "extraordinary circumstances" clause of their agreement, which would allow senators to filibuster her nomination. Early reactions suggest that she, like Roberts, is not expected to be opposed by the group.
While initial reaction from some interest groups -- such as the conservative Family Research Council -- has been muted because of a lack of knowledge about Miers's record, organizations on both sides of the aisle are likely to be active given the importance of the nomination. "The next several months could determine the law of the land for the next several decades," Ralph G. Neas, president of the progressive People for the American Way, said in a statement Monday.
The group's vice president and legal director, Elliot Mincberg, said the nomination raises questions about whether Bush chose Miers based on friendship or because she is the most qualified person for the position. "The president knows a lot about how she thinks, what she thinks and what she believes," unlike senators or the public, he said, noting it is "too soon to tell" whether the group will launch television ads opposing her nomination.
Conservative groups were gearing up for a fight over Bush's second nominee even before the Senate confirmed Roberts. Progress for America said last week that it would launch a grassroots effort, including running television and radio ads, in 17 states to support Bush's associate justice candidate. The group has since launched the website justicemiers.com.
The White House consulted about 80 senators before naming O'Connor's successor, according to White House Press Secretary Scott McClellan. "We have been listening to the views and ideas from members of the Senate," he said last week.
But Sen. Chris Dodd, D-Conn., who backed Roberts, disputed that idea in an interview last week.
"Well if you call a phone call from Karl Rove a consultation," he said. "Fun conversation, I like him, he's smart, we chatted. ... I made some recommendations and thoughts. He didn't tell me who they were thinking of, so it wasn't a two-way conversation in that regard."
With a shortened timetable and a higher position at stake, members of the Senate Judiciary Committee will today begin considering the nomination of Judge John G. Roberts Jr. to serve as the 17th chief justice of the United States.
Already, Roberts -- who was first tapped to succeed retiring Associate Justice Sandra Day O'Connor, then nominated to the court's top job after the death earlier this month of Chief Justice William Rehnquist -- had the opportunity at age 50 to shape the court for decades to come. If confirmed, he would be the youngest chief justice since the legendary John Marshall in 1801.
Although the chief justice's vote counts the same as those of his eight colleagues, he has more than 60 statutory duties, which include running the justices' conferences; deciding who among the justices should draft decisions; setting the initial agenda as to which cases the court should consider; and leading the Judicial Conference, which, among other things, issues ethics guidelines for federal judges.
The chief justice also presides over impeachment trials; chooses members of the Foreign Intelligence Surveillance Court, which allows the government to conduct secret national security surveillance; and serves as the head of the judicial branch of government.
Given the responsibilities of the job -- and President Bush's chance to nominate a second candidate to succeed O'Connor -- choosing about a quarter of the court's members will likely be one of Bush's most important acts as president.
Roberts' confirmation hearings, originally slated to begin last week, were delayed due to Rehnquist's death and congressional response to the aftermath of Hurricane Katrina. Senate Republicans hope the Judiciary Committee hearings -- which will include opening statements today, as well as testimony from Roberts and more than two dozen other witnesses -- will wrap up later this week. That would allow the entire Senate to vote on Roberts' nomination the week of Sept. 26, so he can be seated before the court's new term begins on Oct. 3.
Bush nominated Roberts to succeed Rehnquist just two days after the late justice's death, eager to avoid a long and contentious confirmation fight as his administration battles criticism of its response to the devastating hurricane. In announcing Roberts' nomination, Bush remarked, "The Senate is well along in the process of considering Judge Roberts' qualifications. They know his record and his fidelity to the law. I'm confident that the Senate can complete hearings and confirm him as chief justice within a month."
Democrats, however, have not agreed to a timetable, with Senate Minority Leader Harry Reid, D-Nev., saying in a statement that Roberts' new nomination makes Senate consideration of him "even more important. ... The Senate must be vigilant in considering this nomination." Senate Judiciary Committee Ranking Member Patrick Leahy, D-Vt., promised that Democrats will ask "substantial questions" about Roberts.
Last week, Judiciary Committee Democrats repeated their request to Attorney General Alberto Gonzales to be able to look at 16 of the Supreme Court cases Roberts handled when he worked for then-Solicitor General Ken Starr in the first Bush administration. The senators noted that similar documents were made available to the committee during Rehnquist's confirmation hearings for the chief justice job in 1986. An earlier request to Gonzales resulted in a letter from an assistant attorney general who refused to discuss the senators' request.
Roberts -- who once clerked for Rehnquist and carried his flag-draped coffin up the Supreme Court steps as one of his pallbearers last week -- was originally Bush's choice for the court's top position before O'Connor stunned Washington in July by announcing her retirement and Rehnquist pledged to continue serving as chief justice despite battling thyroid cancer. So Bush named Roberts to the associate justice position.
Since his initial nomination in July, Roberts was considered likely to win confirmation for the O'Connor seat and is still expected to be confirmed as chief justice. "Democrats are in open disarray in the Senate," said Jonathan Turley, a law professor at George Washington University. "This is not the type of fight you win by coming late to it."
Last week, Senate Minority Whip Richard Durbin, D-Ill., told Roll Call that Bush did not consult at all with Democrats in nominating Roberts in July, while Sens. Kent Conrad, D-N.D., and Ben Nelson, D-Neb., said they thought the consultation process worked well.
Part of the reason is that Roberts' confirmation failed to trip the "extraordinary circumstances" clause of the agreement by the so-called Gang of 14 bipartisan senators. Several Democrats in states Bush carried in 2004, and who are up for reelection next year, have indicated that they plan to support Roberts.
Given Roberts' short tenure as an appellate judge and the administration's refusal to turn over some of Roberts' documents, the main job for Democrats in this week's hearings will be to sniff out Roberts' positions on issues such as abortion rights and affirmative action.
When he was nominated to the U.S. Court of Appeals for the District of Columbia Circuit two years ago, Roberts said that Roe v. Wade was "the settled law of the land." But in 1990, representing the first Bush administration, he said the 1973 decision should be overturned. As the high court's chief officer rather than a lower-court judge, Roberts may feel freer to exercise his own judgment on the issue.
In the weeks leading up to today's hearings, interest groups on both sides of the aisle have focused on Roberts' nomination. Progress for America, a conservative advocacy group that favors Roberts, held a two-week tour of 14 states promoting Roberts' confirmation. Speakers on the tour included Ben Ginsberg, who served as national counsel to the Bush-Cheney campaign in 2000 and 2004, and Victoria Toensing, a former deputy assistant attorney general and chief counsel to the Senate Intelligence Committee.
The group also launched a $400,000 ad buy on Fox and CNN starting August 31 called "Precedent," which showed Sen. Joe Biden, D-Del., informing then-nominee Ruth Bader Ginsburg at her 1993 confirmation hearings that she could choose which questions to answer. The group says in the ad that Roberts also "should not answer questions that force him to pre-judge cases."
Several progressive interest groups, including People for the American Way, remain opposed to Roberts, whose record "continues to be troubling," according to the group's vice president and legal director, Elliot Mincberg. The most important role for senators, he added, is to "ask and insist on straight answers to the right questions," such as Roberts' view on Roe v. Wade.
Other issues likely to be raised in hearings include what Roberts will do to build consensus on the court, his views on church-states issues, and whether to allow cameras in the court.
But both sides are already looking ahead to the next court fight, which could be even more important, given O'Connor's swing vote. (O'Connor has agreed to remain on the court until her replacement is confirmed.) After first saying he would choose O'Connor's successor "in a timely manner," Bush later said that "the list is wide open, which should create some good speculation here in Washington."
O'Connor and first lady Laura Bush said earlier that they hoped Bush would choose a woman to succeed the court's first female justice, although the nomination of a Hispanic, such as Gonzales, would give Bush a place in history.
Last week, Senate Democrats, including Reid, sent Bush a letter asking him to consult with them in choosing O'Connor's successor more than he did in selecting Roberts. "It is especially important to identify a consensus candidate to succeed Justice O'Connor, who has been a voice of reason and moderation," they wrote.
Mincberg called the list of names in Washington circulation -- including several people Bush passed over in favor of Roberts, such as Gonzales and appellate court judges Edith Brown Clement and Edith Hollan Jones -- "extremely, extremely troubling." He added, "Our concern is with the list as a whole, where there are many people in the mold of [Justices Antonin] Scalia and [Clarence] Thomas and not in the mold of O'Connor."
Experts are split on what kind of nominee Bush will name. Anger over the administration's hurricane response and growing opposition to the war in Iraq may lead Bush to nominate a more moderate associate justice. On the other hand, Bush tends not to shy away from "hard fights," Turley said, and he is likely to face continuing pressure from his conservative base.
The problem facing Democrats now, Turley added, is that if they vote to confirm Roberts, it will be hard to argue ideologically against the candidate Bush puts forward to succeed O'Connor. "Roberts could not be more conservative on most issues," Turley said.
In a surprise primetime announcement, President Bush named U.S. Appellate Court Judge John G. Roberts Jr. to succeed retiring Justice Sandra Day O'Connor on the Supreme Court, setting into motion the first Court nomination fight in 11 years.
As Roberts' nomination now heads to Capitol Hill, interest groups are expected to spend millions of dollars to influence senators and the public on the upcoming vote. That could make meeting Bush's deadline of seating the new justice by Oct. 3, when the court's next term begins, difficult.
Bush's announcement capped a day of uncertainty in Washington as rumors of potential nominees flew through the nation's capital. In his announcement, Bush called choosing a justice "one of the most consequential decisions a president makes," and praised Roberts as "one of the best legal minds of his generation." He noted that Roberts is "widely admired for his intellect, his sound judgment and his personal decency."
Roberts, who has served on the U.S. Court of Appeals for the District of Columbia Circuit since 2003 and argued 39 cases before the Supreme Court, would be its youngest member at age 50. The Harvard Law School graduate clerked for Chief Justice William Rehnquist in 1980-'81 and has held positions in the Reagan and first Bush administrations.
Republican senators greeted Roberts' nomination enthusiastically. Senate Majority Leader Bill Frist (R-Tenn.) said in a statement that Roberts "is the kind of outstanding nominee that will make America proud." Sen. John Cornyn (R-Texas), a member of the Judiciary Committee who was considered a possible nominee himself, said Roberts is "an exceptional judge, brilliant legal mind and a man of outstanding character."
Democratic senators reacted more cautiously and promised a thorough confirmation process. Noting that a current nominee could serve until 2030 or later, Senate Judiciary Committee Ranking Member Patrick Leahy (D-Vt.) said, "No one is entitled to a free pass to a lifetime appointment to the Supreme Court."
Senate Judiciary Committee member Chuck Schumer (D-N.Y.), who voted against Roberts in 2003, said many of Roberts' personal views on issues are unknown. Assistant Senate Democratic Leader Dick Durbin (D-Ill.) was more forceful, saying in a statement that by choosing Roberts rather than a nominee in the mold of O'Connor, Bush has "guaranteed a more controversial confirmation process."
While senators are expected to press Roberts for his views on issues such as abortion, gay marriage and affirmative action, Roberts is considered unlikely to cause the "Gang of 14" bipartisan senators to invoke the "extraordinary circumstances" part of their agreement that would allow them to filibuster Bush's judicial nominees. In replacing O'Connor, Roberts would succeed the justice who has voted with the 5-4 majority in more rulings since 1994 than any other member of the Court.
Elliot Mincberg, vice president and legal director for People for the American Way, said his group was disappointed with Bush's selection but added that it doesn't have a firm position on Roberts, given his short record as a judge. However, Mincberg called several of Roberts' positions as a judge and as the principal deputy solicitor general in the first Bush administration -- including his views on Roe v. Wade and the Endangered Species Act -- troubling. Roberts said in 2003 that he considers Roe "the settled law of the land" and was merely arguing for his client when he said in 1990 that Roe should be overturned.
"The next nominee could affect Americans' rights and liberties for the next 20, 30, 40 years," Mincberg said. "His judicial philosophy is absolutely critical."
In choosing Roberts, considered by experts a "legacy" nominee, Bush said he was looking for someone "who will not legislate from the bench." He rejected suggestions from several senators that he select someone with political rather than judicial experience, saying Monday, "I, of course, am the person that picks the nominee, and they get to decide whether or not the nominee gets confirmed." Bush also ignored advice offered by First Lady Laura Bush last week to choose a woman to succeed the nation's first female Supreme Court justice, and he decided against making history by naming the first Hispanic justice.
While the White House originally expected to nominate a successor to Rehnquist, who is battling thyroid cancer, rather than O'Connor, Bush moved speedily to name Roberts; in part to shift the summertime conversation in Washington from questions about which members of his administration outed undercover CIA agent Valerie Plame to reporters.
"A nomination would certainly change the momentum in Washington," former Reagan White House aide Ken Duberstein told The New York Times Tuesday.
Last week, Rehnquist said that he would "continue to perform my duties as chief justice as long as my health permits."
Preparations for the nomination have been going on since O'Connor announced her retirement on July 1. Committee Chairman Arlen Specter (R-Pa.), Leahy and their staffs have been meeting to discuss hearing logistics, and both senators talked with Bush at the White House last week, along with Frist and Minority Leader Harry Reid (D-Nev.). Bush said Tuesday that he and members of his staff have consulted more than 70 senators about the nomination process, something which Republican Senate leaders termed unprecedented.
Roberts is expected to meet with senators before the Senate begins its month-long August recess. Senators and committee staffers will spend the month examining his writings and statements, while the Federal Bureau of Investigation and the American Bar Association conduct background checks.
Specter told Fox News anchor Brit Hume on Sunday that while late August hearings are possible, he would prefer to hold hearings after the Senate returns from its recess on Sept. 6. Bush has stressed that he wants a dignified and timely confirmation process.
It's questionable whether Bush can push a nominee through the Senate before October, however. Leahy emphasized the need to vet Roberts' nomination "thoroughly and carefully" and for senators to "take seriously our constitutional obligations" -- all of which could take time. O'Connor has said she is willing to stay until her replacement is confirmed. Bush has tapped former Tennessee Republican Sen. Fred Thompson, now an actor on NBC's "Law & Order," to guide Roberts through the Senate process.
The Senate confirmed the last Supreme Court nominee, Stephen Breyer, after 73 days in 1994 by an 87-9 vote, and took 42 days to approve Ruth Bader Ginsburg in 1993 by a 96-3 vote. But the Senate spent more than three months to confirm Clarence Thomas in 1991 by a vote of 52-48.
In a speech before the Center for American Progress and the American Constitution Society on July 14, Schumer offered some clues about his questioning of Bush's nominee. He said he would ask about the nominee's judicial philosophy, circumstances in which the Court should invalidate a law passed by Congress and under what circumstances the Court should overturn a well-established precedent.
Interest groups on both sides of the aisle were active even before O'Connor's announcement. Progress for America -- a conservative group that has pressed for the Senate to approve Bush's judicial choices and has launched the website upordownvote.com-- has pledged to spend at least $18 million on the Supreme Court fight. And in a sign of how intense the upcoming battle is likely to be, it launched a new website, judgeroberts.com, within minutes of Bush's announcement.
Progress for America President Brian McCabe vowed to defend Roberts "from the left's predictable and premeditated character assassination attempts."
Between June 22 and July 1, Progress for America paid $700,000 to run ads on Washington cable news networks and a local all-news radio station, as well as nationally on CNN and Fox News Channel. The group also spent $3.6 million in more than 15 states to push the nominations of appellate court judges Priscilla Owen and Janice Rogers Brown through the Senate earlier this year.
On the other side, savethecourt.org, a website of People for the American Way, posted a 10-page review of Roberts' record shortly after Bush's announcement. Earlier this month, the group released a television spot that asked whether Bush would try "to force through a judge who threatens our basic rights as Americans." Mincberg didn't name a pricetag for the group's upcoming efforts.
In carrying out the Senate's "advice and consent" role, Arlen Specter is likely to come under pressure from the White House to move Roberts' nomination quickly. Days after Specter said last fall that a Supreme Court nominee who opposes Roe v. Wade would probably not win Senate confirmation, he said he would not use the landmark decision as a litmus test.
But G. Terry Madonna, a public affairs professor at Franklin and Marshall College in Lancaster, Pa., said that the 75-year-old Specter is "about as independent as he's probably ever been in his career." Given Specter's age and health -- he is battling Hodgkin's disease -- Specter is not likely to run for another term, allowing him more freedom.
Just last year, congressional Republicans had a powerful scapegoat in Congress. Anything they couldnt accomplish, they blamed on Senate Minority Leader Tom Daschle (D-S.D.). Unable to confirm President George W. Bushs controversial judicial nominees? It was the obstructionist Daschles fault. Couldnt get the energy bill through the Senate? Daschle was to blame.
And then Daschle lost his re-election bid last fall; the same elections that increased Republican numbers in both the House and the Senate. And with his mandate from voters, Bush has decided to pursue an unusually ambitious domestic agenda in his second term, the centerpiece of which is a partial dismantling of Social Security to create private investment accounts.
The biggest obstacle for Bush this year is not any Democratic congressional leader, however. Its the Republicans in Congress who are thinking about their next election, something Bush doesnt have to worry about ever again. The real fireworks this year will be between the GOP Congress and the Republican White House, says Brad Bannon, a Washington-based Democratic consultant. Bush wants to leave a legacy and theres no better legacy than to dismantle the FDR New Deal legacy, even if it destroys the congressional majority in his own party.
Congressional Republicans, uncharacteristically, have spoken out against Bushs Social Security plan. House Ways and Means Chairman Bill Thomas (R-Calif.), whose committee will pen reform in the House, told Tim Russert of NBC on Jan. 23 that Social Security is a problem, not a crisis. And at an earlier forum, he said the White House proposal would be a dead horse.
Thomas is by no means the lone Republican on this. Last month, Rep. Jim Ramstad (R-Minn.) told Minnesota Public Radio: Right now, to be very candid with you, we dont have broad Republican support, let alone bipartisan support for [Bushs] plan that was outlined during the campaign. And Rep. Rob Simmons (R-Conn.) told The Washington Post, Why stir up a political hornets nest when there is no urgency?
Perhaps they are reading the polling numbers that the president professes to despise. A Newsweek poll released Feb. 5 shows that 56 percent of voters think creating private investment accounts in which Americans can put some of their Social Security money in the stock market is too big a risk, while 36 percent of voters think its a necessary risk. A Quinnipiac University poll released Feb. 2 shows younger voters who wont have to worry about Social Security benefits for decades and vote in low numbers support the plan by a 61 to 35 percent margin. Baby boomers also back it 53 to 43 percent, but older voters who turn out in high numbers oppose it 56 to 34 percent. Senate Finance Chairman Chuck Grassley (R-Iowa) told the Associated Press that public momentum needs to build for the plan in the next 90 days, or else lawmakers will be discouraged from moving ahead.
That may not be the only thing discouraging them, however. Because Bush has not set forward a specific plan for how to go about rescuing Social Security, he gets credit for raising the problem but wont get criticized if nothing happens. His proposal wont fail because he didnt present Congress with a detailed proposal in the first place. He still gets points for his legacy. Its a win-win.
Who will get blamed if nothing happens? Its hard for Republicans to blame Democrats, when they arent in the majority (as in 2002) and they dont have a leader whos been pilloried in the press for standing in the GOPs way (as in 2004). Instead, voters might take out their anger on the people who didnt do anything about the plan and with the partys leader off the ballot, that means congressional Republicans.
Worried about their next race, lawmakers may feel they have more freedom to oppose Bush than they did just a year ago. As a veteran lobbyist recently told The New York Times, What held the Republicans together in the Senate last time was the desire to see Bush through to re-election and a sense that their fates were tied to his. Thats no longer true.
Republican leaders are trying to convince nervous members that Social Security long deemed the third rail of American politics is safe to touch. Senate Majority Leader Bill Frist (R-Tenn.) isnt running for re-election next year, although he does seem to have presidential ambitions, for which he might receive help from Karl Rove, so look for Frist to be a loyal soldier. Republican National Committee Chairman Ken Mehlman has said he thinks Social Security will actually help candidates next year. He points to Bush and Sens. Elizabeth Dole (R-N.C.) and John Sununu (R-N.H.) as examples of candidates who talked about Social Security and won.
But Social Security was far less a factor in 2004 than issues such as homeland security, Iraq, the economy and moral values. Moreover, Dole had the advantage of high name recognition following her stints in the Cabinet, Red Cross and brief presidential campaign. She won by 54 percent, a slim enough margin to cause her Democratic opponent to run again in 2004. Sununu, the son of a former governor, won with just 51 percent.
Senate moderates up for re-election next year, such as Lincoln Chafee (R-R.I.) and Olympia Snowe (R-Maine), are likely to have plenty of questions about Bushs plan. Both of their states voted for Sen. John Kerry (D-Mass.) last year. (Snowe told CNN last month, There is a lot of fear among seniors about the plan.) And some House Republicans, who were duped into supporting Medicare reform after a three-hour vote and misleading budget figures from the administration, may want to think twice before signing on to Social Security. With Democrats united against tinkering with the New Deal program, Bush will need every Republican to pass reform.
And, as Bannon points out, the mid-term election during a presidents second term tends to favor the party out of power historically. Given the Republican dominance of Washington in recent years, the GOP will have to take moral ownership of their own actions or inactions and will not be able to pass the proverbial buck to the Democrats anymore.
Of course, theres another alternative, assuming Bushs plan to privatize Social Security fails. Because many Americans dont want to fix Social Security when it isnt quite broke, they may breathe a sigh of relief that nothing happened. In the end, its a victory for Democrats, too. Not only is Social Security safe, but Bushs lame-duck status is confirmed. And that makes him much less potent when hes campaigning for House and Senate candidates in 2006.
There has never been a shortage of partisanship in presidential campaigns, as each party spends millions of dollars to support its nominee and rally its base. Yet while both sides have willingly supported their candidates in recent years, there hasn't been a lot of excitement.
"Wake Us When It's Over" was the title of Jack W. Germond and Jules Witcover's book about the 1984 election between Ronald Reagan and Walter Mondale.
In 1996, everyone knew that Bill Clinton would have no trouble trouncing Bob Dole.
While the 2000 campaign was dramatic because it was close, the most suspense-filled part of the election came after Election Day, as the two parties challenged one another in Florida and the Supreme Court.
This year, however, is different. Due to Democratic anger, Republican determination, a longer general election campaign and an electorate that is closely following the campaign and remains sharply divided, the 2004 election is set to become the most partisan in decades.
"Everything's going in the same direction," said Burdett Loomis, a political science professor at the University of Kansas and the co-editor of "Choosing a President: The Electoral College and Beyond." "When the winds start sweeping off the Plains, there's nothing to stop them."
Democratic Ire, Republican Determination
Thanks to Florida and anger over the way the White House is handling Iraq, the economy and other issues, Democrats are determined not to allow President Bush a second term. That was clear during the primaries, when voters rated electability as one of their chief reasons for choosing John Kerry. The rise in grassroots groups and the record amount of money raised -- first by Howard Dean last year, then by Kerry in the first quarter of this year -- is proof that Democrats are revved up for November.
Republicans, on the other hand, are just as determined to keep Bush where he is. They've sent his campaign record amounts of money. Laura Bush is becoming more of a presence on the campaign trail, helping to raise money for congressional candidates, according to The Hill. Karl Rove is reaching out to Bush's base, determined that the evangelical voters who stayed home in 2000 make it to the polls this year. Bush's opposition to gay marriage and defense of his tax cuts despite the rising deficit are signs that pleasing GOP diehards is his first concern.
The involvement of third-party groups, such as MoveOn.org and the Club for Growth, is helping to shrink the middle too. "So many forces are pushing toward a partisan election, not just the Democratic and Republican parties," Loomis said. Earlier this month, the St. Petersburg (Fla.) Democratic Club came under fire for urging that voters should "pull the trigger" on Defense Secretary Donald Rumsfeld.
Congressional races aren't immune from the increased partisanship, either. The Club for Growth is supporting Rep. Pat Toomey (R-Pa.) in his bid to unseat Sen. Arlen Specter (R-Pa.), even though a Toomey win in the April 27 primary could cost Republicans that seat this fall. House Majority Leader Tom DeLay (R-Tex.) led efforts to redraw the Texas redistricting map and give the GOP an edge in House seats for the next decade. Senate Majority Leader Bill Frist (R-Tenn.) is campaigning for former Rep. John Thune (R-S.D.), who is challenging Senate Minority Leader Tom Daschle (D-S.D.). As Roll Call reported recently, it's the first time in recent memory that one party's leader has challenged the other on his home turf.
"You look someplace for an opposite trend and have a very difficult time finding it," Loomis said.
A Split Electorate
Another reason for the split is that "We're in a transitional phase in many different respects," said Darrell West, a political science professor at Brown University and the author of several books on presidential and congressional campaigns. "The Bush administration has changed the country's approach to fiscal and foreign policy. Not surprisingly, that has spurred a lot of controversy."
A New York Times/CBS News poll taken in mid-March showed that 65 percent of voters had already made up their minds about whether they would vote for Bush or Kerry (27 percent said it was too early). A Gallup poll conducted in early April showed that 61 percent of voters have already given the election quite a lot of thought (versus 33 percent who've thought about it only a little). No doubt that the contested Democratic primary, unstable situation in Iraq and attention-grabbing hearings of the 9/11 commission have made Americans pay more attention to politics.
"We have a lot of big issues on the agenda," West said. "People feel very engaged because the stakes are very high."
Asked for whom they would vote, 47 percent of those surveyed in the Gallup poll chose Bush and 46 percent chose Kerry. In an early April Newsweek poll, 46 percent chose or would lean toward Kerry while 42 percent chose or would lean toward Bush. Those numbers, which are in the statistical margin of error, haven't moved much in the last few months. That's because the electorate remains split almost down the middle between the parties, as we saw in the 2000 presidential campaign and in a Senate that's now 51-48-1. Although party identification may be declining, it's still a strong indicator of how people vote on Election Day.
"A small difference in the electorate can produce major political ramifications," West said.
A number of factors contributed to this perfect storm of partisanship. Since Republicans gained control of Congress in 1994, they've adopted hardball tactics -- such as limiting Democrats' ability to offer amendments to bills -- to shut Democrats out of the legislative process. Then came Clinton's impeachment and trial. "When you politicize impeachment, all bets are off," Loomis said.
The Florida recount and Vermont Sen. Jim Jeffords' decision to leave the Republican party in 2001 -- handing control of the chamber to Democrats for 18 months -- exacerbated tensions between the parties. Democrats also felt cheated by Bush's claims in 2000 that he would change the tone in Washington and govern as a "compassionate conservative." When they backed him on the No Child Left Behind bill in 2001, Bush undercut the legislation by inadequately funding it. Democrats are determined not to repeat that mistake.
With the candidates offering clearly contrasting images of where they want to take the country and the parties reaching out to their bases rather than the middle, where does that leave voters who haven't made up their minds? "It's going to be a nasty campaign, so there's the risk that by November, people could hate both presidential candidates and be disengaged in the process," West said. In other words, even though there's a lot of voter mobilization going on, those people may decide to just stay home come Election Day.
Voters may also punish the party they see as being too partisan. In 1998, for example, House Democrats bucked the trend of the president's party losing seats in a mid-term election after voters became angry that Republicans pressed for Clinton's impeachment.
With the tone of the campaign already set, there's no turning back. That may get core Democrats and Republicans to the polls, but it's going to make it harder to govern once the election is over. Legislating happens because lawmakers compromise in order to get bills passed. If neither party is willing to yield, not much is likely to get done. And that result -- rather than an exciting election -- may be the lasting legacy of the 2004 campaign.
Mary Lynn F. Jones is online editor of The Hill.
The New York Times reported last week that John Kerry hopes to choose a running mate in the next two months.
No doubt his rushed timetable is due in part to the front-loaded primary season. In addition, he could use the help a vice-presidential candidate will provide in the campaign against President Bush. With the September 11 commission and Iraq dominating the network broadcasts, now Kerry can spend a moment out of the spotlight to weigh his options.
I'll make a bold suggestion: Choose a congressional colleague as running mate.
Why is this bold? Well, campaigning against Washington is a proven vote-getter. Bush did it in 2000. He promised to "change the tone" here and to bring some of the so-called bipartisanship he had demonstrated in Texas to the nation's capital. His ranch in Crawford is nicknamed the "Western White House," and he makes no secret of the fact that he'd rather spend time there than here.
It also worked for Republicans in the 1994 congressional elections, in which they won control of the Senate and regained a majority in the House for the first time in four decades. They ran on the theme of decentralizing government and said that the states -- not Washington -- should make decisions.
But the situation has changed. (If you don't believe me, ask the Democrats who ran as outsiders in the primary campaign and lost.) The ongoing threat of terrorism, the war against Iraq, and the nation's fiscal crisis are leading Americans to look to Washington for answers. As Kerry said in a January 29 Democratic debate in Greenville, South Carolina, he's running for president "because I believe we can set a better agenda at the national level than this president is willing to."
People also want to elect a president who can get results, but a president can't do that by himself. Again, go back to what Kerry said at the Greenville debate, when he noted, "One of the things that you need to know as a president is how things work in Congress if you want to get things done." It's true: The Clintons' health-care policy failed in part because White House officials worked on their own rather than cozying up to key members of Congress.
One of Bush's problems is that he's been arrogant in dealing with Congress. On every one of his major policy wins on the Hill -- the No Child Left Behind education bill, tax cuts, Medicare reform, sending troops to Iraq -- the president has relied on faulty information and assumptions to persuade lawmakers to back him. Democrats wised up after Bush hoodwinked them on the education bill and then proceeded to inadequately fund it. Several GOP members are frustrated that they voted for a Medicare bill that at least some key members of the administration knew to be more expensive than they let on.
Vice President Dick Cheney, who was supposed to be the ticket's experienced Washington hand, left the House in 1989; at that time, Republicans were in the minority and many of the players on the Hill were different. Missteps in heeding the concerns of Senator Jim Jeffords of Vermont cost Republicans control of the chamber for 18 months at a time when the president generally enjoys his greatest political capital. Running with another member of Congress would help Kerry both as a candidate and as president.
Of course, Republicans will no doubt exploit any differences between Kerry and his running mate. But unless Kerry picks a political neophyte as his No. 2, that's going to be an issue. It shouldn't be a disqualifying factor.
As Roll Call reported Thursday, Senate Democratic Policy Committee Chairman Byron Dorgan of North Dakota believes that John Edwards would be the strongest running mate for Kerry. And Dorgan is trying to persuade his colleagues to support Edwards for the job. The last time two sitting senators ran on a presidential ticket was in 1960. One was from the north, the other from the south. It was another bold choice, but it worked.
That's something Kerry should think about these next two months.
Mary Lynn F. Jones is online editor of The Hill.