Senate Won’t Rush Hearings

Democrats Cool to Frist’s Oct. 3 Deadline

Posted July 12, 2005 at 6:30pm

President Bush huddled with four influential Senators on Tuesday morning to discuss the upcoming Supreme Court nomination, a conversation that sources on both sides cast as generally positive — although cracks in that show of unity quickly became apparent.

Bush met with Senate Majority Leader Bill Frist (R-Tenn.), Senate Minority Leader Harry Reid (D-Nev.), Judiciary Committee Chairman Arlen Specter (R-Pa.) and ranking member Pat Leahy (D-Vt.) in the Oval Office and the adjacent dining room for roughly an hour. Vice President Cheney and White House Chief of Staff Andy Card were also in attendance at the Senators-only gathering.

“The first step seems to be working well,” Sen. Ben Nelson (D-Neb.) said of the early consultation, adding that at some point Bush will have to talk about his “short list” with Democratic leaders. “The next phase of that seems to be to get a response back.”

Although Democrats publicly cast the meeting as a success, privately they made clear that the timing of the hearings as well as the level of outreach by the White House both remain points of contention.

When Frist referred to the Bush administration’s consultation with the Senate as “unprecedented,” for example, Leahy quickly interjected to point out it was “not unprecedented,” noting that he was regularly consulted by President Ronald Reagan during the confirmation of Justice Sandra Day O’Connor.

The breakfast meeting was the biggest news of the day concerning the pending Supreme Court opening created by O’Connor’s July 1 announcement, but it was certainly not the only development.

The seven Democratic Senators who took part in the “Gang of 14” agreement earlier this summer to avoid a showdown on judicial nominees also met Tuesday afternoon to discuss strategy on Supreme Court nominees.

All 14 signatories to the pact are set to meet Thursday morning, their first such meeting since the vacancy occurred.

Sen. John McCain (R-Ariz.), who led the GOP side in the negotiations, said the meeting would not produce much high drama — particularly an answer to whether a filibuster on a nominee could occur under the deal’s “extraordinary circumstance” escape clause — as long as there is no nominee put forward.

“I don’t know how you even discuss what an ‘extraordinary circumstance’ might be until you have a nominee,” McCain said.

Reid also hosted a conference call Tuesday afternoon that was billed by the party committees as a briefing on the Supreme Court situation.

“We are not here to pick a fight,” Reid said on the call. “It is up to the president to avoid a confrontation.”

Following up on his suggestion that the court pick come from the Senate, Reid told reporters Tuesday that he would suggest to White House Counsel Harriet Miers that Sen. Judd Gregg (R-N.H.) be the nominee to replace O’Connor.

Gregg, who practiced law in the 1970s, is the fifth GOP Senator suggested by Reid — the others being Mike Crapo (Idaho), Mike DeWine (Ohio), Lindsey Graham (S.C.) and Mel Martinez (Fla.) — none of whom have been taken seriously by the White House or the Senate.

The focus of the day, however, was the early morning meeting in the Oval Office between the president and the four Senators considered most influential in the confirmation process.

The four men were all smiles as they emerged from the West Wing into a steamy Washington morning following the hour-long get-together with Bush.

“We are following the Constitution, which is always a good start,” said Specter, who will be charged with overseeing the hearings for the next nominee.

Reid echoed that sentiment, calling the morning meeting a “good first or second step.”

It was clear, however, that the two sides did not entirely see eye-to-eye on when hearings should be held.

Expanding on a statement he made Monday, Reid insisted “there are no timelines” even as both Frist and Specter said the Senate should have a new justice confirmed when the court reconvenes Oct. 3.

“Scheduling is a matter we took up in some detail,” acknowledged Specter in the immediate wake of the Tuesday meeting. He called the idea of holding hearings during the August recess “difficult but possible.”

One Democratic Senate aide familiar with the process said his party was “very, very hesitant” about the prospect of August hearings, especially given the likelihood that Bush will not formally name a nominee any earlier than late this month.

Democrats were also quick to note that O’Connor said she would not resign until her replacement was confirmed, making putting a nominee in place before Oct. 3 less pressing.

Historically speaking, it takes a minimum of four weeks to pull together the requisite background checks on a Supreme Court nominee by the FBI, American Bar Association and the Judiciary Committee. That timeline would leave Specter to decide whether to hold hearings the last week of August — at the earliest — or after Labor Day when Congress returns.

Sen. John Cornyn (R-Texas), a junior but influential member of the Judiciary Committee, has been the leading advocate of a late July nomination, which would coincide with the departure of Congress on July 29 for its five-week recess and deprive Senate Democrats of any media platform to denounce the nominee.

In addition, August is considered the worst time for political advertising because so much of America is on vacation, meaning any ad campaign by the liberal coalition opposed to Bush’s nominees would not get the same level of attention as it would this month.

If Specter chooses the first week after Labor Day, that will still leave almost four weeks in which to hold hearings, approve the nominee in committee and send the nomination to the floor in time to meet Bush and Frist’s deadline of Oct. 3, the first day of the Supreme Court’s new session.

Specter said Monday that he will “see to it that no one is left hanging out to dry.”

Cornyn and another influential Judiciary Republican, Sen. Jon Kyl (Ariz.), both said the continuing delay in putting forward a nominee makes it more and more unlikely that hearings could be held until after Labor Day.

“It sounded all along like it would be the last week of August or the first week of September,” Cornyn said. “I guess it really all depends on when the president decides to let her loose.”

“The longer the nomination process takes, the more likely it is the hearings will be after Labor Day,” Kyl said.

The other point of contention in the Supreme Court debate is how to best view the level of outreach from the White House to the Senate to date.

Frist as well as White House press secretary Scott McClellan and various other Administration officials have emphasized what they say is the historic nature of their outreach to the Senate.

At Tuesday’s press briefing, McClellan pointed out that the White House had contacted more than 60 Senators to discuss the Supreme Court vacancy, including more than half the members of the Democratic Senate caucus and every member of the Senate Judiciary Committee.

The president “wants to hear their views and their ideas as we move forward, and I think the consultations, you can expect, will continue even after he makes his decision and makes his nominee known,” McClellan said Tuesday.

Aside from the president, Card, White House Counsel Harriet Miers and White House Deputy Chief of Staff Karl Rove have all made calls to Senators.

Tuesday’s breakfast marked the second time that Reid and Leahy had spoken to the president about the vacancy.

Reid and Bush had a brief in-person discussion June 28; Bush spoke by phone with Leahy on the day of O’Connor’s retirement announcement.

Democratic sources said that while Leahy, Reid and even Specter suggested potential Supreme Court nominees during the meeting, Bush did not share anyone on his own list and said that fact must change if Democrats are to view this process a being truly bipartisan.

Leahy said that he did not tell Bush which potential nominees might provoke a major fight on the Senate floor.

“We told him that obviously we would have some that would raise such a red flag … why go with it,” Leahy recounted.

Though no future meetings were set for the group, Reid spokesman Jim Manley said that the Minority Leader “hopes there will be further consultations that include conversations about specific names.”

While Arkansas Sen. Mark Pryor (D), a Gang of 14 participant, stopped short of saying insufficient consultation would prompt a filibuster, he did point out that a complete process would include Bush sharing more information than he has so far in meetings and phone conversations.

Pryor suggested that the White House talk with Reid and top Democrats on Judiciary, as well as Sen. Robert Byrd (D-W.Va.), one of the 14 deal brokers and the most senior member of the Senate.

“As the list gets shorter, they would maybe confer with fewer of us,” Pryor said.