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CNN CROSSFIRE

Senate Judicial Standoff

Aired May 18, 2005 - 16:30   ET

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

ANNOUNCER: "CROSSFIRE." On the left, James Carville; on the right, Robert Novak.
In the "Crossfire": Have we reached Judgment Day in the Senate's fight over federal judges? The majority leader wants debate to begin and an up-or-down vote on the president's picks without delaying tactics.

SEN. BILL FRIST, (R) TENNESSEE, SENATE MAJORITY LEADER: Vote for the nominee. Vote against the nominee. Confirm the nominee. Reject the nominee. But in the end, vote.

ANNOUNCER: The leader of the minority says the filibuster is the only protection they have against being steamrolled by the right.

SEN. HARRY REID, (D) NEVADA, SENATE MINORITY LEADER: If the Republicans roll back our rights in this chamber, there is no check on their power. The radical right wing will be free to pursue any agenda they want and not just on judges.

ANNOUNCER: Compromise: filibuster or the nuclear option? Which way will the Senate go? Today on "CROSSFIRE."

Live from the George Washington University, James Carville and Robert Novak.

JAMES CARVILLE, CO-HOST: Welcome to "CROSSFIRE."

The Republican-led Senate looks like it is getting closer to an attempt to change the rules so they can rubber-stamp the president's nominee to the federal bench.

If they get their way, they could get their way on some of the biggest decisions that come to federal courts and the Supreme Court for years to come.

NOVAK: The Democrats depend on the filibuster to try to stop confirmation, defending the technique used by a racist Senate to kill civil rights legislation for a century. We'll look at this.

But first the best little political briefing in television, our "CROSSFIRE" Political Alert.

After Democratic National Chairman Howard Dean over the weekend said that House Majority Leader Tom DeLay should be in jail, I was assured by one of his party's elders that he soon would be muzzled. Not true. Before his next stop on his Red State road tour in Phoenix today, Dr. Dean was asked about his intemperate remarks by the Arizona Republic newspaper.

He replied, quote, "The law is closing in on Tom DeLay," end quote.

There's been no indictment, no charge against the majority leader. This fits the vile pattern set by leftist extremists who send me dozens of e-mails every week saying I should be in prison. Howard Dean is contributing to this pollution of politics.

CARVILLE: You know, they're wrong. You shouldn't be in prison, just be in an asylum.

(LAUGHTER)

(APPLAUSE)

The law is closing in on Tom DeLay. The Ethics Committee is picking up the complaints. The Traverse County D.A. is looking into them. There are new things coming. I suspect one day he might get to be a guest of the federal government.

NOVAK: But I tell you something: If you had some rapist or murder who was not even indicted, you would say -- we shouldn't say he should be in prison.

CARVILLE: I'm not saying he should go to prison without being indicted.

NOVAK: Why did Dean say that?

CARVILLE: He didn't say that.

NOVAK: He said he should be in jail.

CARVILLE: Sometimes have you to read the papers to really know what is going on in the United States. President Bush attended a fund-raiser that raised more than $15 million last night. On the Republican menu were Margarita shrimp, crab claws and desserts slathered in chocolate.

President Bush said, and I quote, "The job of the president is to confront problems, not pass them on to future presidents and future generations."

As the right-wing bigwigs were enjoying themselves, representatives of the conservative Heritage Foundation and the more progressive Brookings Institute listened to the United States comptroller general, David M. Walker, say that deficits we're now facing could turn the United States into Argentina. Argentina, you may recall, is a South American nation that just reneged on its foreign debt.

NOVAK: You know, James, of all the lousy issues, you have the lousiest as the debt. As Ronald Reagan once said: I don't worry about the national debt; it's big enough to take care of itself.

As a matter of fact, it is smaller as a percentage of GDP than any of our other -- than it has ever been. This is a phony issue. That's not hurting us.

CARVILLE: I'll just ask this question: How do you, with a straight face, sit and defend a man that says, "I don't pass problems on to future generations," that has plunged this country into $5 trillion in debt? How do you do that with a straight face?

(APPLAUSE)

I don't understand. I couldn't get it out of my mouth.

NOVAK: It's a phony issue.

The Schindler family, parents and siblings of the late Terri Schiavo, had an audience with Pope Benedict at the Vatican today.

After they presented the Holy Father with a framed picture of their daughter he said, quote, "I know about Terri," holding his hand to his heart as he mentioned Terri's name.

This is a message for Catholics who denounce anyone who tried to save Terri Schiavo's life. The late Pope John Paul supported her parents who wanted to keep Terri alive by feeding her. The late pope opposed her husband who had a common-law wife with children and wanted Terri starved to death. Pope Benedict showed today which side he's on.

CARVILLE: First of all, Pope Benedict does not make the laws of the United States.

(APPLAUSE)

Second, if he cares about life, they got enough starving people in Africa right now. He ought to go to Darfur and do something about that. There's plenty of things he can do. If he wants to meet with Terri Schiavo's parents, I feel sorry for those people too. The pope in Rome does not make the law for the United States of America.

NOVAK: That's a demagogic comment. I expect a demagogic comment from you. And I tell you, if the shills in the audience applaud the murder of Terri Schiavo, God save their eternal souls.

CARVILLE: You are saying the pope ought to make the laws of the United States government.

(CROSSTALK)

NOVAK: You can't think of anything else to say.

CARVILLE: I said the pope should not make the laws for the United States government.

(APPLAUSE) NOVAK: You said it four times now.

CARVILLE: You said I was a demagogue for saying that.

(APPLAUSE)

Over 1,600 American lives lost and approaching a half-trillion dollars in taxpayers' money spent. We've had an interesting few days in Iraq. Our secretary of state, Condoleezza Rice, had to slither in under the cover of darkness because her security could not be guaranteed during daylight hours.

Less than 48 hours after her nocturnal visit, the bright sunshine of daylight welcomed Kamal Kharazi, the foreign minister of Iran, for a triumphant state visit to the U.S.-installed government in Iraq.

Let me get this straight. We paid with 1,600 of our men and women and nearly a half-trillion dollars so our secretary of state could sneak in and out under the cover of darkness, while the terrorist-loving, nuclear bomb-making, democracy-hating Iran comes triumphantly in the daylight. Thank God we're not passing this problem on any future generation.

(APPLAUSE)

NOVAK: I know you want to make the most politically out of this situation in Iraq. You failed in the last campaign to do it. But I tell you something: I hope we can get out of there as soon as we can because it's their country and it's their business.

(APPLAUSE)

CARVILLE: I'm all for you on that one. Maybe the Iranians can go in there. They can go in the daytime. They don't have to come at night.

Our Senate majority leader, Bill Frist...

NOVAK: You want me to do it?

CARVILLE: Senate Majority Leader Bill Frist appears to be determined to go nuclear. Can anything be done to avert Judgment Day in the fight over President Bush's judicial nominees?

Fred Thompson takes on a political role. Is it really a step up?

(COMMERCIAL BREAK)

CARVILLE: Welcome back to "CROSSFIRE". During the Clinton administration, Republicans used their own bag of tricks to keep nominees they didn't like off the federal bench. But now it seems that they don't like it when the Democrats find ways to keep radicals off the bench. Today in the "CROSSFIRE", Brad Berenson, former associate counsel for the White House and former prosecutor and independent counsel Michael Zeldin. NOVAK: Mr. Zeldin, welcome. I would like to play for ya'll a little tape of the majority leader of the Senate on the Senate floor. Let's listen to him for a minute, OK?

(BEGIN VIDEO CLIP)

SEN. BILL FRIST (R), MAJORITY LEADER: What has happened, because of the other side of the aisle, in shattering the Senate tradition for 214 years where a filibuster was never even contemplated, now it's being used on a routine basis.

(END VIDEO CLIP)

NOVAK: How routine it is. It was, you know, there is 16 appellate court judges either threatened or filibustered, some have dropped out. Now the question is, don't you -- now the Democrats are willing to settle for only three. They can only get three people murdered. They say it's a good homicide. Don't you think that the -- Teddy Kennedy and the former Senator Tom Daschle went too far in their filibuster plans?

MICHAEL ZELDIN, FMR. INDEPENDENT COUNSEL: Well, no, actually, I think that there's a lot of pay back here. I think that during the Clinton administration -- and Mr. Carville here can tell us about it -- 70 judges were denied the right to even a vote, not -- let alone an up or down vote -- through blue slips and other means.

There is a lot of bad conduct on the Hill on both sides and I believe that it's time for both parties to put down their swords and behave like adults. But what we're seeing here at the moment is the basic premise of play-by-the-rules, play fairly, respect the rules, not being honored by the party that controls the three branches of government, essentially.

NOVAK: But you know, for example, there's a lot of negotiations going on and I think it's really -- they're willing -- the Democrats now are willing to give up for if they can only get three of these judges stopped, but they're insisting that judge -- Supreme Court Justice Owen of Texas be stopped. Since we have the advantage of reading some of the memos of Teddy Kennedy, three years ago they were saying that she was pro-business, and hostile toward abortion. That's the line that's being put out right now. There's nothing -- she is totally qualified by the Bar Association. Isn't that a wrong reason for a opposing somebody, on ideology?

ZELDIN: Well, the Republicans, I think -- yes, in simple terms, yes. But I think that the Republican...

UNIDENTIFIED MALE: They did it too, you're saying.

ZELDIN: Well, I'm saying, what the Republicans said was, we don't want activist judges. 'We've heard that phrase over and over and over. Now, one person's activist is another person's hero. One man's ceiling is another man's floor. But, if they set the stage as "activist judges don't belong" -- you've heard the president say, legislation is for legislators. Judges, judge. These judges, by anyone's definition, are activists. They have political views that are well-expressed, out in the common market of ideas, and now they are just facing the wrath, if you will, of a party who disagrees with their form of activism. So it's their chickens coming home to roost, and so the hypocrisy of saying, it's just the other side's fault, is, to me, overwhelming.

CARVILLE: Mr. Berenson, first of all, I've mispronounced your name. You are the 37th guest whose name I've mispronounced, so it's not... (INAUDIBLE)

BRAD BERENSON, FMR. WHITE HOUSE COUNSEL: It's an honor.

CARVILLE: It's Berenson. I guess what I'm sort of perplexed by -- the Republican party is very, very committed to this, and they've spent an enormous amount of time -- I don't know how many weeks, and whatever -- what is it about the Republican mind that makes them so fanatical about getting five of these judges through and so nonchalant about rising healthcare costs or gas costs? I'm trying to -- help me get inside the mind of you guys, why this is so -- why you are willing to sort of wreck the whole thing over this.

BERENSON: Well, I'll give you two answers. One practical, one institutional.

The practical reason is that it's not just five judges. There are 10 who have been formally filibustered, six against whom filibusters have been threatened.

UNIDENTIFIED MALE: Sixteen.

BERENSON: The president has -- so, for 16 total who have been blocked this way, the president has the lowest confirmation rate of any modern president to the appellate bench, fully a third or nearly a third, anyway, of his nominees to the appellate bench have not gotten through.

ZELDIN: That means two-thirds got through.

BERENSON: So there's a -- yes, but still...

CARVILLE: This is a -- doctrinally, this is a bigger thing to you than 14 percent of the increase in healthcare cost or $2.50 a gallon gas. I'm just -- I'm trying to get our viewers to understand the right wing mind. That's all.

BERENSON: We know that from the beginning of the administration, the president has felt it was important to try to revivify executive powers, and what's really at stake here is an important institutional point, which is, the power of the president to appoint and to fill the federal bench. If the Senate can arrogate unto itself the power to determine arbitrarily high levels of support that judicial nominees need, then the president's ability to make appointments, which he is given under the Constitution, gets progressively eroded.

CARVILLE: I appreciate you answering that way. NOVAK: Just -- I know you are a fair-minded person, which I would never accuse James of being, and that -- the idea that they are not doing healthcare because they are doing judges -- isn't it a fact that at the beginning of this administration -- first, I've only been around for 50 years in this town. It is the first time I have ever seen, at the beginning of an administration, holding up that number of judges.

So it wasn't the Republicans who said we would rather do judges than healthcare. It's the Democrats who made this an issue, isn't it?

ZELDIN: Well, again, I think there's a Hatfield and McCoy mentality on the Hill that really needs to be changed more than anything else. I believe that the filibuster of Abe Fordyce, the filibuster of Clinton appointees. There is a mindset of payback on the Hill.

NOVAK: At the end of the administration, though (INAUDIBLE)...

ZELDIN: Well, no, but, listen, this president has -- had confirmed 208 of 218 people that have gone before the committee. That's far higher a percentage of total judges than did the Clinton administration have. The Republicans did the same thing. I'm not justifying, you know, tit-for-tat. I'm saying to you, it's wrong for both sides.

CARVILLE: They haven't confirmed 208 judges. That's nutty, can't be true.

ZELDIN: Two hundred and eight of 218....

CARVILLE: You mean the Democrats have confirmed 208 judges already?

ZELDIN: ...95 percent.

CARVILLE: I didn't know that.

BERENSON: Ninety-five percent. Different as to circuit judges than as to total other judges.

CARVILLE: I thought they wouldn't let him get anything.

NOVAK: Let him answer. Why aren't you going to let him answer?

CARVILLE: I didn't know, Bob, I'm...

NOVAK: Well, then, why don't you let him answer??

BERENSON: None of this has anything to answer with the trial- level judges, the district court judges, who account for the vast majority of that figure. We're talking about 30 or so appellate judges who have been confirmed, a much, much smaller number.

But, if the Democrats really cared about healthcare and those other things, all they need to do is quit filibustering the judges and the business of the Senate will move on.

CARVILLE: Two hundred and eight judges already confirmed.

NOVAK: Let's take a break. Just ahead, why the Democrats are now falling in love with something they used to hate. And, how close should women get to the front line? Wolf Blitzer has the latest on the effort in Congress to change the rules of engagement.

(COMMERCIAL BREAK)

WOLF BLITZER, CNN ANCHOR: I'm Wolf Blitzer in Washington. Coming up at the top of the hour, the Senate begins debate on one of President Bush's judicial nominations setting the stage for an historic showdown with huge consequences for all of us. We'll have a debate between a Republican Orrin Hatch and Democrat Charles Schumer.

Women in the U.S. Armed Forces: Are they too close to combat in Iraq? Some House Republicans say yes. The joint chiefs chairman has just spoken out.

And what Donald Trump wants to see on the site of the World Trade Center. We'll have details.

All those stories, much more only minutes away on WOLF BLITZER REPORTS. Now back to "CROSSFIRE".

CARVILLE: Welcome back to "CROSSFIRE". The debate is over the Senate approaching judgment day over judicial nominations continues with Brad Berenson, former associate White House counsel and former prosecutor and independent counsel Michael Zeldin.

NOVAK: OK, Mr. Zeldin. I want to read you something from the "Los Angeles Times" -- editorial from the "Los Angeles Time." And this is the work of the leftist journalist former "CROSSFIRE" host Michael Kinsely. You know that. He says quote, "count this page on the side of conservative social activists who are pushing Senate Majority Leader Bill Frist to nuke the filibuster. The filibuster, an arcane, if venerable parliamentary tactic that empowers a minority of 41 Senators to block a vote goes above and beyond those checks on majority power legitimately written into the constitution."

Since we know -- unquote -- since we know that the filibuster was used by all Democratic racist segregationist senators to block civil rights legislation for a century, doesn't to "Los Angeles Times" have it right?

ZELDIN: No, not always. And not in this particular case, either. I think that the filibuster has its place. I think it has been abused. It may be being abused now. But I think that the filibuster institutionally is the last hope for a minority to be held -- to hold the majority accountable.

(APPLAUSE)

ZELDIN: I really do think as a principle I think it's important that in our structure that people have that protection of the minority rights. And I think as I said at the outset it's particularly important when the House and Senate and the executive branch are held by the majority.

CARVILLE: I am really stupid I was growing up during that time. I thought we had civil rights legislation passing in the late '50s. I thought we had a big civil rights bill that passed in '64. We had a voting rights act -- so it all passed. It all got done.

I don't want to give any revisionist history here to Mr. Novak who now all of sudden decided to be one of the great civil -- you would think he was Martin Luther King sitting here, OK. There was a ton of civil rights legislation passed.

Let me ask -- let me go to something here.

NOVAK: Incredible.

CARVILLE: And show a poll in -- they asked people, should Republicans be able to eliminate the filibuster in the case of judges? You have a staggering 28 percent of people in America that agree with you.

BERENSON: Those numbers reverse if you ask the question a slightly different way and ask whether judges should get an up or down vote in the Senate.

CARVILLE: If I put that up here that's 208 -- you know, what happens to those numbers. They go to about 88, because I have seen people -- 208 judges have already been confirmed by this Senate.

(APPLAUSE)

NOVAK: You said that four times now.

CARVILLE: 208 judges have already been confirmed by this Senate.

BERENSON: Yes, they have. But there's been unprecedented obstruction of another set of judges who are to a higher court, to the appellate court. And it's something that, you know, this has been caused because the Democrats overreached. They abused the power that they had, took it too far.

If this has been done to two or three judges that they really strongly objected to we wouldn't be at this point. When you block a third of the nominees, then have you gone too far.

NOVAK: Brad Berenson, thank you very much. Michael Zeldin, thank you very much. Gentlemen, you brought some order to this procedure.

From the Senate to the Oval Office, next find out how Fred Thompson is making that career jump.

(COMMERCIAL BREAK)

NOVAK: Fred Thompson has gone from a corruption-fighting attorney in Tennessee to Watergate to the U.S. Senate and now to president? Well he wanted to be president, but he's only acting. Thompson, an accomplished actor, plays the president of the United States in a made for TV and DVD movie called "Last Best Chance." The 45-minute movie debuts tonight here in Washington showing risks, the world faces from unsecured nuclear material when al Qaeda terrorist steal nuclear material to make bombs.

It isn't traditional Hollywood. It was produced by the Nuclear Threat Initiative, the group co-chaired by former senator Sam Nunn and Ted Turner and funded by Warren Buffett. That is strange company for Fred Thompson, but he's a good Republican. And I bet the movie is OK.

CARVILLE: You know. He's a good guy. He's a good actor too. He is very good actor. Very nice man.

NOVAK: He would have made a good real president, too.

CARVILLE: I don't know if I'll go that far. But he is a very nice man. And he's very, very good actor.

From the left, I'm James Carville. That's it for "CROSSFIRE".

NOVAK: From the right, I'm Robert Novak. Join us again next time for another edition of "CROSSFIRE". "WOLF BLITZER REPORTS" starts right now.

END

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