House Minority Leader Rep. Nancy Pelosi is known amongst even her Democratic colleagues as one of the less cerebral members of the House. But even her staff was stunned by her seeming inability to understand the recent Kelo Supreme Court ruling regarding governmental property seizures.
“We briefed her on it. She seemed to ask questions as though she understood it, but clearly she didn’t,” says a Boxer adviser on Capitol Hill. “How else to explain it?”
Indeed. When asked about Kelo and its implications, as well as moves afoot by some Republicans in both houses to negate the ruling, perhaps by barring use of federal funds on projects that involved the state or local taking of land, Pelosi responded thusly:
“It is a decision of the Supreme Court. If Congress wants to change it, it will require legislation of a level of a constitutional amendment. So this is almost as if God has spoken. It’s an elementary discussion now. They have made the decision.”
Later, she insisted: “Again, without focusing on the actual decision, just to say that when you withhold funds from enforcing a decision of the Supreme Court you are, in fact, nullifying a decision of the Supreme Court. This is in violation of the respect for separation of church — powers in our Constitution, church and state as well. Sometimes the Republicans have a problem with that as well. But forgive my digression.”
“All I can say is wow,” says a Republican leadership staffer. “To say anything else would just undercut the impact her remarks have had up here.”
Even after the press remarks, Pelosi, according to other Democratic staffers, didn’t seem to understand what the fuss was all about. “She was oblivious. She really thought she had a handle on some basic ideas about the Supreme Court, the way Congress works with the rulings of the court,” says a Democratic leadership staffer. “A generation of ‘Schoolhouse Rock’ gets this and she doesn’t? Her staff should be ashamed of itself for putting her out there.”
On Friday, with the announced retirement of Sandra Day O’Connor from the Supreme Court, It took a few minutes for the news to set in on Capitol Hill, among Republicans and Democrats alike. After all, even the White House in briefing Republican leadership on the Hill spoke in the belief that it would be Chief Justice William Rehnquist who is retiring.
“The White House seemed to be expecting Rehnquist first, that was what my boss was getting briefed on,” says a staffer for a Senator sitting on the Judiciary Committee. “We were told Rehnquist in July, possibly later this year.”
Rumors are already swirling about a possible third retirement after November. The most likely would be Justice Ruth Bader Ginsburg, who according to former Supreme Court clerks may be in poorer health than Justice Rehnquist.
“That’s the seat for [Albert] Gonzales, that third seat if it opens up,” says Department of Justice staffer. “All of this depends on how the first nomination goes, but the assumption here is that this is not the time for Gonzales.”
As of this writing federal Judge Emilio Garza is the frontrunner to replace O’Conner. There are several indicators, which may all be red herrings, but that is half the fun.
First, Texas Sen. John Cornyn met with the President, as well as Chief of Staff Andrew Card and several members of the White House Counsel office early Friday. Up on Capitol Hill, rumors were quickly swirling that Cornyn had been offered the Supreme Court nomination. Those rumors were fueled when his senior staff essentially went underground for several hours.
But later in the day, Cornyn was making television appearances to discuss the nominations process, as well as placing an op-ed about the process.
Cornyn is now believed to be the President’s point person in the Senate to help measure the level of support for potential nominees. “He’s the President’s ‘consultation’ guy,” says a Senate leadership source. “That’s how we’re proceeding. If he is the nominee, we will be surprised again. But that’s nothing new with this White House.”
Cornyn and Garza know each other from their days in Texas and other legal circles.
Another indicator of Garza’s status is that several senior Republican staffers on the Judiciary Committee have begun poring over court rulings from the period of 1987 through 1990, a period when Garza served as a U.S. district judge before his elevation to the 5th Circuit Court of Appeals.
That research, though, could just as well apply to Judge Edith Hollan Jones, who has been sitting on the Fifth Circuit since 1985. Jones was considered for possible Supreme Court nominations by President George H.W. Bush.
Senate minority leader Harry Reid cannot say that there has not been a consultative process regarding this Supreme Court nomination process. But that’s not to say he won’t.
Over the past three weeks, as certainty about a Supreme Court retirement began to set in, Senate Majority Leader Bill Frist did in fact discuss potential nominees with Reid on at least one occasion. The discussion was of such detail and length that no one could dispute that there was consultation and give and take occurring, according to Republican sources.
Of course Democrats would dispute it. “Senator Frist is a doctor, and we all know how what a consultation means for a doctor: it’s a handshake that doubles as the hand-off of the bill,” says a Democratic leadership staffer. “Senator Reid was not satisfied with the names that were discussed, nor was he happy with the outcome of the meeting.”
As well, White House sources say that President Bush has reached out to several Democratic senators, including Sen. Ted Kennedy.
One Senator who has not been party to a number of discussions is Sen. Patrick Leahy, in part, because both White House and Senate Judiciary staff believe that his and his staff’s penchant for leaking to the media would be counterproductive at this early stage of the process.