On NBC’s “Meet The Press” this morning, host Tim Russert stocked his panel with three left-of-center journalists – Nina Totenberg of NPR, Ron Brownstein of the Los Angeles Times, and David Gregory of NBC News – to discuss the events of the week. When they got to the nomination of Samuel Alito to replace retiring justice Sandra Day O’Connor, Russert mentioned that when Bill Clinton was president, both Ruth Bader Ginsburg and Stephen Breyer, despite obvious Liberal leanings, were approved by a strong majority of both Democrats and Republicans. “And they say, ‘Why can't we have the same courtesy to conservative jurists under President Bush?’"
In response, Totenberg said: “If you look at the Ginsburg nomination, for example, she'd been a judge, I think, for 12 years. She'd been, actually, a pretty conservative liberal judge, if you can be such a thing.” This could be the first time that anyone has referred to the former general counsel for the American Civil Liberties Union as being “pretty conservative.”
As the discussion ensued, Totenberg expressed frustration with the president’s second choice to replace Sandra Day O’Connor:
“You know, they picked a woman, probably a nice woman, a woman you might hire if you were in a corporation but who had no constitutional law experience whatsoever and did things in successive weeks that each time made her look less and less qualified. And then, of course when she gets dinged, then we go back, as Ruth Marcus said, to some white guy.”
What follows is a full transcript of this segment.
MR. RUSSERT: Nina Totenberg, was one of the reasons that Harriet Miers had such a hard time was because Republicans perceived that George Bush is now not at a strong political position?
MS. NINA TOTENBERG: No, I don't think so actually. I think that his conservative base simply revolted. And both the intellectuals and social conservatives who think that they in some sense own this presidency--they thought the president had betrayed them. And even if he had been in a strong position, I think they would have gone bananas anyway.
MR. GREGORY: And there was an aspect to this that the conservatives were waiting to revolt in the first place over the high spending, over the conduct of the war in Iraq. They simply were not happy and this was the straw that broke the camel's backs.
MR. RUSSERT: This debate--and we saw a preview of it today, this morning, with Senator Kennedy and Senator Coburn about judicial philosophy. There's no doubt about it. Charles Lane wrote a piece on Tuesday in The Washington Post. Headline: "Alito Leans Right Where O'Connor Swung Left." It says, "In 1991, Judge Samuel A. Alito Jr. voted to uphold a Pennsylvania statute that would have required at least some married women to notify their husbands before getting an abortion; a year later, Justice Sandra Day O'Connor cast a decisive fifth vote at the Supreme Court to strike it down. In 2000, Alito ruled that a federal law requiring time off for family and medical emergencies could not be used to sue state employers for damages; three years later, O'Connor was part of a Supreme Court majority that said it could. And last year, Alito upheld the death sentence of a convicted Pennsylvania murderer, ruling that his defense lawyers had performed up to the constitutionally required minimum standard. When the case reached the Supreme Court, O'Connor cast a fifth vote to reverse Alito."
Is that what we're going to hear from the Democrats, "This is not Sandra Day O'Connor"?
MS. TOTENBERG: Absolutely. They're going to say this is going to tip the court dramatically to the right. They're probably correct, to some extent, about that, unless there's some incredibly unforeseen thing that happens if Judge Alito is confirmed. And frankly, if you look at the Democrats right now who are struggling to show places where they're different from the president, there's not much in it for most of them to vote for this nominee. They may not succeed in defeating him, but I can't see a reason for them to vote for him.
MR. BROWNSTEIN: You know, in this first week it seems already there are two very different portraits of Judge Alito that are emerging. From the supporters you get--you have former colleagues on the 3rd Circuit and many former law clerks who are out there arguing this is someone who is very careful, very cautious, who has an open mind, who opposes--who approaches...
MS. TOTENBERG: Yeah.
MR. BROWNSTEIN: ...these cases one by one and makes careful distinctions and limited decisions. From the critics you're getting the argument: Well, that all may be so, but all--his reasoning always seems to lead him into the same conclusions. And so the fundamental debate here is whether we have someone who is an ideologue, which is the way the opponents are going to portray him, or someone who really is just a very cautious, careful judge who is applying the law as best he can, even in the 1991 case struggling with Supreme Court precedent, and certainly in the machine-gun case that you cited, Supreme Court had made a ruling the year before. That is a fundamental divide, I think, we're going to see over these next two months.
MR. RUSSERT: David Gregory, Republicans will point out, however, as I did with Senator Kennedy, as well, and journalists and other observers of the court, Ruth Bader Ginsburg and Stephen Breyer-- they're liberal philosophies, Breyer working for Kennedy; Ginsburg general counsel for the ACLU. And yet Republicans overwhelmingly voted to allow them to go on the court.
MR. GREGORY: Right.
MR. RUSSERT: And they say, "Why can't we have the same courtesy to conservative jurists under President Bush?" Has the climate changed that much?
MR. GREGORY: Well, I think it's a change in climate, and you're right--and Justice Ginsburg also made some of her views known, her ideological views. And in this case Judge Alito may have let sort of less out of the bag on that score. But I think that there is a political climate that also has led Democrats to say there was a qualified nominee in Miers, which--some of them felt that--who was simply bowled over by the right wing in this country, and that's why it's kind of a campaign line, which is, "We can oppose Judge Alito and say we're opposing the right wing."
MS. TOTENBERG: You know...
MR. BROWNSTEIN: That's a...
MS. TOTENBERG: You know...
MR. BROWNSTEIN: That's a pretty tactical endorsement.
MS. TOTENBERG: Yeah. But it...
MR. BROWNSTEIN: If the Republicans would have voted for Miers they would have been the other way.
MS. TOTENBERG: If you look at the Ginsburg nomination, for example, she'd been a judge, I think, for 12 years. She'd been, actually, a pretty conservative liberal judge, if you can be such a thing. And President Clinton decided he didn't want to have a big fight. And he went to Orrin Hatch and he said, "Who would you endorse? Who can you get through?" And he gave him two names: Ruth Bader Ginsburg and Stephen Breyer. And in successive years, that's who Clinton nominated.
MR. RUSSERT: Would there be a conservative Republican jurist who the Democrats would support?
MS. TOTENBERG: Oh, I think there are probably lots of them, but they wouldn't--you know, most-- and some of them are women, interestingly enough. And they're more conservative than O'Connor, but they are less conservative than Alito.
MR. BROWNSTEIN: Yeah, but your underlying point, I think, is correct, Tim. I mean, we are in a period of intense polarization in which both parties are under enormous pressure from their base to be more confrontational. There've been polls in the last few weeks where President Bush's approval rating among Democrats--in single digits; I mean, numbers that are almost unimaginable--7 percent. In that environment, you're going to get more no votes, regardless of the nominee, than you might have if you had a president who was operating with a greater consensus in the country. It's very revealing: People for the American Way, the liberal group, is probably going to lead the opposition. Their first ad focused not on Judge Alito, but on President Bush, linking him to President Bush. I think that was very telling of the situation we're in.
MS. TOTENBERG: And they do focus groups. They don't just do ads because they feel like it.
MR. RUSSERT: Ruth Marcus wrote a piece in the The Washington Post opinion section saying that Miers was a disaster for feminists and for women because it gave a suggestion, well, we tried a woman, that didn't work, now let's go back to someone who's really qualified.
MS. TOTENBERG: I think that's right. You know, they picked a woman, probably a nice woman, a woman you might hire if you were in a corporation but who had no constitutional law experience whatsoever and did things in successive weeks that each time made her look less and less qualified. And then, of course when she gets dinged, then we go back, as Ruth Marcus said, to some white guy.
MR. GREGORY: The part of the problem is the president made the mistake, it seems, in trying to frame this, that this is the most-qualified candidate out there.
MS. TOTENBERG: Yes.
MR. GREGORY: What he really meant to say was, "I want somebody from outside the judiciary and on that score and given other facets of her skills, she is the most qualified." But he got himself in that trap.