White House Press Briefing, 10/10/03:

Q Scott, earlier this week you told us that neither Karl Rove, Elliot Abrams nor Lewis Libby disclosed any classified information with regard to the leak. I wondered if you could tell us more specifically whether any of them told any reporter that Valerie Plame worked for the CIA?

MR. McCLELLAN: Those individuals — I talked — I spoke with those individuals, as I pointed out, and those individuals assured me they were not involved in this. And that’s where it stands.

We shouldn’t lose sight of the White House’s categorical denial as new details emerge. For example, here’s the latest from Newsweek:

The e-mails surrendered by Time Inc., which are largely between Cooper and his editors, show that one of Cooper’s sources was White House deputy chief of staff Karl Rove, according to two lawyers who asked not to be identified because they are representing witnesses sympathetic to the White House. Cooper and a Time spokeswoman declined to comment. But in an interview with NEWSWEEK, Rove’s lawyer, Robert Luskin, confirmed that Rove had been interviewed by Cooper for the article.

Conservatives are asking: “Can we please do it like Ginsburg?” John Cornyn says as much in today’s Washington Post. The argument is pretty simple: During the Clinton years, the Republican Senate minority deferred to a Democratic President’s selections for the Supreme Court. Now George Bush deserves the same deference.

This won’t wash, for two reasons.

First, the O’Connor vacancy matters much more than the vacancies that Bill Clinton filled. Yes, Clinton’s first nominee, Justice Ruth Bader Ginsburg (for whom I clerked), replaced a more conservative Justice, Byron White. But White was not the decisive vote in the way that O’Connor is today. This is Linda Greenhouse’s evaluation the day after White retired:

Replacing Justice White with a more liberal Justice would not necessarily change the Court drastically. It would be more likely to add a liberal vote to the centrist majority that has prevailed in several recent high-profile cases, including the Court’s rulings in June that reaffirmed the constitutional right to abortion and barred organized prayer at public school commencements.

Clinton next replaced Harry Blackmun, who by his retirement was the Court’s “most liberal member” (Greenhouse again). Clinton’s choice, Stephen Breyer, was in some ways more conservative than Blackmun in his final days–on capital punishment, for example. In short, deference in 1993 and 1994 came cheap. There is no reason to expect the same with a nomination so momentous.

The second point is that Bill Clinton reached out to Republicans in ways that George Bush likely won’t reach out to Democrats. It’s not just, as this site has already pointed out, that Clinton actually listened to Orrin Hatch’s advice, while nobody expects Bush to give Pat Leahy the time of day. It’s also that Clinton chose Justices who weren’t traditional liberals in the Brennan-Marshall mold. Breyer and Ginsburg don’t find welfare rights in the Constitution. They don’t proffer bold new procedural protections for criminal defendants. They’ve applied the death penalty, though they’ve tried to do it fairly. They are, to use Cass Sunstein’s category, “judicial minimalists,” which nobody ever called Justice Brennan. Democrats’ acceptance of that minimalism represents a shift from traditional liberal jurisprudence that roughly parallels the “New Democratic” reform of traditional liberal politics.

Does anybody expect George Bush’s next nominee to stand for a centrist reform of conservatism? As lawyers like to say, asked and answered.

– Robert Gordon

We’ve previously discussed how President Bill Clinton’s close consultation with Sen. Orrin Hatch – the ranking minority member on the Judiciary Committee at the time — lead to swift, bipartisan confirmations of Breyer and Ginsburg. In the 1992 book “Matters of Principle,” former Biden counsel Mark Gitenstein discusses the sham consultation process Reagan employed for the Bork nomination.

Decide who you really want in advance:

Baker and Meese spoke over the weekend and agreed to meet on Monday by the end of that meeting Bork was the next nominee to the Supreme Court unless he met determined and effective opposition on the Hill…(pg. 35)

After already making your choice, present the minority with a fake list of “potential” candidates:

Baker and Meese would take a pro forma list of nominees up to share with Biden and the Senate leadership In the meeting, Meese and Baker presented Biden and Byrd with a list of ten nominees, appropriately sprinkled with blacks and women. Some names were included only to make the list appear bipartisan. (pg. 36)

When the objections are raised, ignore them:

When they got to Bork, it was clear they had reached the real purpose of the meeting

[snip]

Baker pressed on: “What’s the problem Joe.”
“His views. I’m worried where he will take the court.”
Neither Meese nor Baker responded

[snip]

[Biden] interrupted, “if you go ahead with Bork, it’s going to be a longer summer.”

Meese and Baker were satisfied as the meeting broke up. They had not asked Biden directly what he would do on Bork, but it should have been obvious. But then again it did not seem to matter to them…(pg. 36)

If Bush employs a similar consultation strategy, expect a similar result.