RAY SUAREZ: For more on what’s at stake for the Supreme Court this presidential campaign we turn to two congressional spokesmen for the Bush and Gore campaigns: Republican Asa Hutchinson of Arkansas and Democrat Barney Frank of Massachusetts. They are both on the House Judiciary Committee.
Joining them are two Supreme Court watchers: Stuart Taylor, legal affairs correspondent for National Journal and Newsweek, and Anthony Lewis, a columnist with The New York Times. Representative Hutchinson, this is one of the longest periods of the stable membership of the court in American history. These nine men and women have been there for six years with no changes.
What should voters be thinking about this fall, as they consider who should be the next president and how that may change the court?
REP. ASA HUTCHINSON: Well, I think first they have to realize how significantly it could change the court — in the last term, I think there were 70 decisions, one-third of those were a 5-4 decision on a whole host of issues, from partial birth abortion to the case involving the Boy Scouts — 5-4 decisions.
And so if the next president would appoint one, two or three, then it could be a significant change in the tilt, the balance of the court. Governor Bush has indicated that he does not have any litmus test for those; he wants to make sure that they are well qualified, reflect his general philosophy.
If you look at his record in Texas, his appointees represent all walks of life. 50 percent of them were women and minorities. And so I think that’s how he would approach appointees to the United States Supreme Court.
RAY SUAREZ: And Congressman Frank, let me move to you, what would you ask voters to keep in mind about the makeup of the Supreme Court and who the next president will be?
MARGARET WARNER: Two weeks ago, the Supreme Court term ended with a burst of decisions on hot-button issues ranging from abortion to school prayer to whether the Boy Scouts could expel a gay scoutmaster. The fact that many of these cases were decided by a 5-4 vote prompted a flood of articles and editorials on how the outcome of this year’s presidential race could alter the balance on the court.
What’s more, both liberal and conservative groups are now trying to energize their supporters by arguing that this election could reshape the court for decades to come. For our own discussion of what’s at stake for the court in this Presidential campaign, we turn to Stuart Taylor, legal affairs correspondent for National Journal and Newsweek, and author of last week’s Newsweek cover story on this issue; Anthony Lewis, a columnist with the New York Times; C. Boyden Gray, former White House counsel in the Bush administration, now in private practice in Washington; and Ralph Neas, People for the American Way and author of a 75-page report on this topic called "Courting Disaster."
Welcome, gentlemen. Ralph Neas, in this report, you wrote that the court is just one or two votes away from can your tailing fundamental rights that millions of Americans take for granted. Is there really that much at stake in this election?
JIM LEHRER: Margaret Warner begins our coverage of the Kenneth Starr investigation story.
MARGARET WARNER: As the senate winds up its impeachment trial of the president, Independent Counsel Kenneth Starr is coming under investigation on a growing number of fronts. Today’s "New York Times" reported the Justice Department has decided to open an inquiry into whether Starr’s prosecutors misled Attorney General Janet Reno about possible conflicts of interest when they obtained permission to investigate the Lewinsky matter in January 1998. At issue, the "Times" said, is whether Starr’s "prosecutors should have disclosed the contacts between Mr. Starr’s office and the Paula Jones legal team" in the weeks leading up to Starr’s request to expand his inquiry into the Lewinsky affair. According to the "Times," Starr’s prosecutors denied any such contacts at the time, but subsequent news stories have reported otherwise. Starr spokesman Charles Bakaly would not comment to the "Times" about whether the Department was opening an inquiry. But Bakaly insisted, "there was no misleading of justice." Democratic Senator Tom Harkin of Iowa jumped on the "Times" story this morning.
SEN. TOM HARKIN, (D) Iowa: And if you believe the rule of law applies not only to the defendant– the president, in this case– but also to the prosecutors and those sworn to uphold that rule of law, then it is important to look at how this case got here. It’s interesting to note that in today’s February 10th "New York Times," "the conduct of the independent counsel is so suspect and potentially violative of Justice Department policy and law that now he is under investigation for a number of reasons."
MARGARET WARNER: In addition to the hours of public arguments in the senate over witnesses, there have been extensive negotiations behind the scenes. Some insight into both now from Boston Globe columnist Tom Oliphant and National Journal columnist Stuart Taylor, who is also a contributor to Newsweek.
MARGARET WARNER: Tom, the Senate is behind closed doors debating this. Why has this witness dispute become such a big issue in these proceedings?
TOM OLIPHANT: Because I think, Margaret, it is a metaphor for how long is this trial going to last. I don’t think witnesses per se have importance. I think the claims on both sides today made it clear that no one is saying that somebody is going to come forward and say something dramatic. But rather than argue about the specific length of the trial, witnesses have in a sense become the metaphor. What’s happening now I think has been arranged inside the senate Republican family. It appears to be working in the sense that it will have a majority. But it makes the House managers livid.
MARGARET WARNER: Why does it make them livid?
TOM OLIPHANT: Because they feel that their opportunity to put on the kind of trial that could have persuaded the senate, that could have persuaded public opinion has been limited to the point of ineffectiveness. And their expressions of frustration on the floor today and yesterday, but particularly yesterday, I think are just the surface of a genuinely deep fury at having the rug pulled out from under them.
MARGARET WARNER: Do you agree, Stuart? I mean, they made an incredibly passionate case for these three but they’re livid about it and they feel they need more.
MARGARET WARNER: Stuart, what else do we need to know about this man that you think will affect how we conduct this trial?
STUART TAYLOR: Well, you cover it pretty well. I think the top of it is – he’s a very smart man – he’s no nonsense – as Jeff recently wrote in the New Yorker. He runs a poker game that includes some interesting players, and the idea is let’s play the poker, no nonsense. The one quibble I might have with what we just heard was the word "stern task master." Yes, he runs the court on tight schedule but he is liked and regarded as very fair in dealing with that by his colleagues.
I well remember Justice William Brennan, the late justice, one of the great liberals and the polar opposite ideologically of Rehnquist. I went to him after a bitterly, bitterly divided partisan ideological debate that led to Rehnquist’s confirmation as chief justice in 1986, and I asked Justice Brennan, what do you think of it? "I’m just delighted. He’s such a wonderful guy. He’ll be fair." Now, Brennan wasn’t particularly going to miswarrant Berger either. That might have been part of it. But I think he’s in a very different forum than he’s ever been in before because although when he brings down the gavel in the court and says counsel, your time is up, they salute, and they march away, and the other justices don’t challenge him on things like that. But in the Senate he can be overruled by 51 Senators on anything he does. And the most interesting thing for me watching him will be this. Will he try and set an aggressive tone in ruling, for example, if somebody wants censure, if there’s an argument over what evidence should come in, will he say in a clear and forceful way, well, here’s what I think and hope they don’t overrule him at the risk of
(a) being repeatedly overruled or
MARGARET WARNER: Paul, Senate Majority Leader Bob Dole just sent out another sort of public letter yesterday saying even though he would have voted to impeach in the House, he still thinks some sort of censure deal is the way to go. Do you think Dole’s going to play an active role in this? Do you think he has clout if he decides to do so?
PAUL GIGOT: Oh, he has some personal contacts among senators, obviously. He was their leader for a time on the Republican side, and he has some moral authority as a former Republican candidate, well respected figure. So there may be people who heed him. I think it’s a little easier to have censure in the Senate because you’re now ñ than it was in the House ñ because you’re now in the punishment stage; you’re now in determining how the ñ how the case ultimately comes out. He has been impeached. And I think that in terms of heeding the Constitution, nobody doubts that the Senate can do what it wants. I mean, there was some debate about what the House could do, but nobody doubts the Senate can dismiss the case if it wants. It can agree to some kind of plea bargain, or it can go up to it and remove the president.
NORMAN ORNSTEIN: Margaret, this is where there are now two crucial figures who will come to the floor ñ Trent Lott, the Senate Majority Leader and Tom Daschle, Senate Democratic leader, who’s also very close to President Clinton. Trent Lott will have a major role in determining whether the Senate now moves to a trial and then after that point reaches a different stage, or whether something else can happen. And the events of the next week or ten days are going to be very important in determining whether or not he makes the political judgment that maybe we should not hold a trial or short circuit in some fashion and ñ or whether we orchestrate a way of getting through this.
JIM LEHRER: President Clinton’s legal defense before the House Judiciary Committee. Stuart Taylor of the National Journal and Newsweek magazines and Tom Oliphant of the Boston Globe are back to offer their commentary. The NewsHour’s chief Washington correspondent, Margaret Warner, is here to assist me in keeping the story line going, among other things. And speaking of the story line, tell us what it is this afternoon.
MARGARET WARNER: Well, this is the big moment that everyone’s been waiting for, I think the President’s detractors, as well as his supporters. This is when Charles Ruff, the White House counsel, lays out the president’s defense both factually and on the law. And he –
JIM LEHRER: And there he is, sitting. He’s already at the witness table, waiting for the committee members, and the man directly behind him is David Kendall, who is the president’s personal lawyer, now being obstructed by a – there you go – there, you can see him – just to Mr. Ruff’s left. That is David Kendall, the president’s personal lawyer, who is not scheduled to participate in this, this afternoon, correct?
MARGARET WARNER: That’s correct. He did the questioning of Kenneth Starr when Kenneth Starr appeared before the committee. But he has been kept out of a public role in these hearings this week.
JIM LEHRER: And Mr. Ruff will – will obviously be speaking – what he says will be based on the 182-page paper that the White House has offered, correct?
JIM LEHRER: Tom, what do you make of – here are two of the target members of Congress,>two members of the House, two moderate Republicans, twenty to thirty of them, everybody says – their colleagues and folks like that are going to make the decision – what do you make of what they just told Margaret?
TOM OLIPHANT: Well, they underlined the mountain that President Clinton has to climb. They exemplify it. In the first case, Congresswoman Roukema, of course, has been for getting rid of Clinton for some months now – previously via resignation. And Congressman Shays is also in an interesting position. He has had a lot of backlash from contributors. And he has teamed up with the majority whip, Tom Delay, at least to talk down the issue of censure, though he remains opposed to impeachment. I think in Congressman Roukema you have a wonderful example of how easy it is for a member of the House to look at something that was given to the House by an independent counsel and sort of react to it, say, I believe this, I don’t believe that, you have no responsibility for an investigation that the House conducted, and so both within the Judiciary Committee and on the House floor, there’s a kind of free market atmosphere here where you don’t really have to take responsibility for an investigation that you never actually conducted.
JIM LEHRER: And just move it over to the Senate, as you said.
TOM OLIPHANT: Exactly.
JIM LEHRER: And, once again, good morning from Washington. I’m Jim Lehrer. Welcome to PBS’s special NewsHour coverage of the House Judiciary Committee hearings on the impeachment of President Clinton. Today, the President’s attorneys wrap up their two-day impeachment defense. We expect to hear from a panel of five attorneys on the standards for obstruction of justice and perjury and then from Charles Ruff, the White House counsel. We’ll be broadcasting today’s proceedings in full. The NewsHour’s chief Washington correspondent, Margaret Warner, is here with me this morning. So are two commentators: Stuart Taylor, a columnist for the National Journal and Newsweek magazines, and Boston Globe columnist Tom Oliphant.
JIM LEHRER: Margaret, the plan for the day is what?
MARGARET WARNER: Well, as you said, Jim, first we’re going to hear a panel of five lawyers, former prosecutors or current prosecutors. And they’re going to – very much as yesterday – talk about the standards for prosecuting both obstruction of justice and perjury. The sort of star witness –
JIM LEHRER: In criminal – in a criminal –
MARGARET WARNER: In a criminal –
JIM LEHRER: If this was, in fact, a criminal case.
MARGARET WARNER: Exactly.
JIM LEHRER: That’s what they’re going to be talking about.
TOM OLIPHANT: Well, we got – we got the moment before the climactic moments of this inquiry — I think in terms of testimony and everything, this panel has ended the House Judiciary Committee’s impeachment inquiry, and other than hearing from the poor defendant’s lawyer and having the case summarized and articles presented and voted on, the case is pretty much over.
JIM LEHRER: Do you agree?
STUART TAYLOR: Yes. Of course, we haven’t seen the articles yet. The indictment hasn’t quite been – but we know the rough outlines of what it will be – perjury here, perjury there, grand jury – obstruction of justice, which really is in this case – boils down largely to witness tampering with Betty Currie and Monica Lewinsky. And obviously, the censure option is coming more and more into focus in this committee. We’ve seen reports that the chairman will allow a vote on censure after a vote on impeachment to give those who favor that an option. I think one thing that may be very difficult – lots of people say let’s just censure him – is okay, what is the censure motion going to say, and how do you get all the people who want to say he lied, he lied, he’s a criminal, prosecute him, together with all the people who want to say he was a naughty boy, and we don’t want to really look at it anymore, plus the people who say a fine would be an unconstitutional bill of attainder and those who like Governor Weld of Massachusetts – the former governor – say, oh, no, you can do that if he agrees to it – I think that’s going to be very tricky business.