SCOTUS Watch: Consultation/Gang of 14 Updates

This is sort of a long post, but it's chock full of goodies. Much more on Thursday's scheduled Gang of 14 meeting a few paragraphs down.

It's been a full week now since I first gave a cautious thumbs-up to how the White House and leading senators were conducting themselves in the Supreme Court nomination process. I am thrilled to be able to report in tonight that I can still say "so far, so good," and mean it. From all accounts, President Bush has begun engaging in a wide-ranging consultation campaign, with Administration officials reaching out, in various ways, to senators of all political stripes.

Yesterday, the president himself met with Senators Frist, Reid, Specter, and Leahy - a meeting which, according to the senators, went fairly well (at least if Senator Leahy's comments are any indication: he said later "I thought he was listening. I've known him for a long time and I can usually tell when he's going, 'OK, OK, OK, enough of this.' And I think this was a case when he was listening").

White House counsel Harriet Miers and Deputy Chief of Staff Karl Rove, along with the president, have reportedly been making phone calls to many senators asking their views on the nomination, a move which has earned plaudits from all sides.

Virginia's John Warner, the co-author of a section in the "Gang of 14" agreement calling for the White House to consult with the Senate, said of the outreach effort so far "I feel very definitely that it meets and really exceeds the spirit of that agreement." Senator Robert Byrd, who joined Warner in composing that portion of the agreement, said Tuesday that he had received a call from the president. "I complimented him for reaching out," said Byrd. "I think he needs to do this, and I said that 'you may reject our recommendations, that is your prerogative, but at least we had our chance to offer our thoughts.'"

Other Democratic members of the Gang of 14 have also offered cautious praise for the Administration's efforts thus far. In a letter to the White House yesterday, as well as a later phone conversation with Miers, Louisiana's Mary Landrieu offered praise for steps taken and called for more: "Working together," she wrote to the president, "we can overcome partisan politics. Working together, we can unite our country." Her Arkansas colleague Mark Pryor, who organized yesterday's meeting of the Democratic Gang of 14 members, said he had spoken by telephone with Rove twice. As to what he was looking for in a nominee, Pryor said "I think you look at the person's qualifications and experience, the person's world view. I'm not comfortable with an activist. ... We hope the process would work as it has tradtionally."

Obviously whether or not all this outreach is anything more than window dressing remains to be seen. As Illinois' Barack Obama told the LA Times, "How effective the consultation is will be determined by who the actual nominee is. If we get a nominee who is conservative and may still elicit significant objections from the Democrats, but who nevertheless is considered well within the mainstream of legal opinion, then that would indicate the president isn't just going through the motions." I think that's a fair characterization. I have little hope that the eventual nominee is going to be universally acclaimed (in the current environment, I doubt that's possible), but I think it will be possible for the president to choose a nominee who can be confirmed without overly-significant opposition in the Senate. Note the the qualifier there: in the Senate. Some interest groups are going to howl no matter who's nominated; the important thing is that senators do their best to ignore those squawks.

As I mentioned earlier today, the Gang of 14 is scheduled to meet tomorrow. An article in The Hill released this evening sheds some light on what they're looking to do (and what they're not). Senator McCain told the paper "We are not trying to emerge as a force or usurp leadership. Most senators are glad we averted [a filibuster] by coming together." He gave the White House credit for its efforts so far to reach out on the Supreme Court vacancy, saying that "a smooth confirmation for the nominee would benefit Congress as well as the White House," according to The Hill.

Importantly (and thankfully), McCain said that while the Gang isn't looking to take a particularly strong leadership role in the upcoming debate, its members "remained ready in place if partisanship among pressure groups infected the Senate debate." He noted that constituents "are getting very weary about us fighting each other all the time," and decried the fact that "far right and far left cranked up their propaganda machines" as soon as O'Connor's retirement was announced.

Of tomorrow's meeting, The Hill notes that Pryor spokesman Rodell Mollineau said that the Gang "will talk about the O’Connor vacancy, to make sure everyone is on the same page."

The article adds that McCain and spokespeople for other Gang members said that there were no plans to discuss Social Security at tomorrow's meeting. McCain told the paper he "did not expect any movement on Social Security during this Congress," and that "in hindsight Congress should have emphasized the problem facing the institution rather than private accounts, which polarized the issue."

I try to give credit where it's due: the White House has gotten off to a better-than-expected start on the consultation front, and for the most part senators have continued to conduct themselves admirably. I hope that this trend will continue as we move forward - I'm heartened by what I've seen so far. It's going to be tough: the easy way out will be to jump into the cesspool of name-calling and partisan rancor. The high road is rockier, but in the end, it's worth it.

[Update: The New York Times also covers the Gang of 14 meeting in Thursday editions, with this article from Sheryl Gay Stolberg. It adds some flesh to some of the points I made in the original part of the post, so I'm going mention those.

Some more from John Warner, on the idea of "advice and consent." "The word 'advice' was buried in history. Now we've resurrected it. I'm extremely satisfied."

Mainly the article focuses on the pressures facing the Gang, however: "Its members are under intense scrutiny both in the Capitol and at home, where some, particularly Republicans like Senators Lindsey Graham of South Carolina and Mike DeWine of Ohio, are suffering political repercussions for crossing conservatives to join." And the meaning of 'extraordinary circumstances' remains elusive. "I'll know it when I see it," said Joe Lieberman (revising the old Justice Potter Stewart definition of obscenity). Ohio's Mike DeWine agreed: "We'll define it when we see it, but it's not defined, so we are going to have to work our way through this. We knew that, and we knew that the day of reckoning was going to come and it would come with a Supreme Court nominee."

Stolberg reports that the Gang's members "have agreed to reconvene, intervention style, if any of them feels the urge to filibuster a court nominee, said Senator Susan Collins, Republican of Maine. If that makes the gang sound a bit like a support group for wayward Senate moderates, the analogy may not be all that far off. 'It is a support group, in some ways,' Ms. Collins said."

Finally, the Times reports, "If the gang members agree on one thing, it is that they would like to put themselves out of business. 'The last thing anybody in this group wants is to even have to decide whether to go to a filibuster, or have to decide whether they're going to vote for the nuclear option,' said Senator Ben Nelson, Democrat of Nebraska, who will be the host of Thursday's breakfast. 'We're in the game of avoidance.'"

While I wish that the Gang would hold together and begin taking an active role in other issues, that's apparently not something they're interested in just yet. Maybe they'll come around. Until then, I'm just glad they're still talking. -- 10:46 p.m.]

[Updates: More current information on this topic can be found up on the main page. -- 14 July, 10:27 a.m.]