After his toughest week, Bush comes out fighting

Nov 3rd 2005
From The Economist Global Agenda

George Bush has nominated a staunch conservative, Samuel Alito, to the Supreme Court. He does so immediately after the toughest political week of his presidency, with his approval ratings at their lowest level in five years. Will seeking a battle with Democrats shore up his political base or leave him further weakened?

HARRY REID has not impressed too many people in his short tenure so far as leader of the Democrats in America's Senate. But on the evening of Sunday October 30th, his prescience was striking. He predicted on CNN television, as George Bush was reeling from a series of political calamities, that the president might choose to use a Supreme Court nomination to pick a fight with the left and rally his conservative base. “If he wants to divert attention from all of his many problems, he can send us somebody that is going to create a lot of problems.” He referred to Samuel Alito, a conservative appeal-court judge, as just such a nominee. Mr Bush, rarely one to back down from a fight, nominated Mr Alito on Monday morning.

Both left and right have learned the value of defining a nominee quickly—first impressions stick. When Mr Bush picked John Roberts to sit on the Supreme Court in July, the impression of him as eminently well-qualified, conservative but not ideological, and a calm family man, stuck from day one. And when the president nominated Harriet Miers in early October, the initial negative impression of her as being an under-qualified Bush crony stuck as well, despite the White House’s repeated efforts to rebrand her. Ms Miers duly withdrew late last week. Mr Alito is her replacement.

E-mailed press releases and blog postings began flying as soon as the nomination was announced. Is Mr Alito really “Scalito”, a clone of Antonin Scalia, the firebrand conservative on the Supreme Court who believes that the constitution must mean only what its framers intended in the 1780s? The left will portray him as out of the mainstream, in favour of weakening the ability of women and minorities to seek protection in America’s civil-rights laws—and, of course, chipping away at a woman’s right to an abortion. The case that will receive the most scrutiny is Planned Parenthood v Casey, in which Mr Alito voted to uphold a requirement that would have forced women to notify their husbands (in most cases) before getting an abortion. That requirement was later struck down by the Supreme Court. Sandra Day O’Connor, the centrist whom Mr Alito would replace on the court—who was often seen as the swing vote on issues that divided right and left—wrote an opinion on Casey that explicitly disagreed with Mr Alito. Abortion-rights supporters have good reason to worry about Mr Alito replacing her.

On the other hand, conservatives are also working overtime to define the new nominee. Unlike Ms Miers, he comes with impressive credentials: Princeton and Yale, years of service in the Justice Department, and 15 years as a judge. Conservatives are also noting that the Senate confirmed Mr Alito unanimously in his current job in 1990, with compliments handed out by Democrats as well as Republicans.

The nomination raises, once again, the spectre of the “nuclear option”. Under the present rules, it takes just 41 senators (out of 100) to prolong debate indefinitely, killing a bill or blocking a presidential nominee to an important job—a tactic known as a filibuster. Earlier this year, Republicans sought to use their 55-to-45 advantage to change Senate rules so that a simple majority of votes would be enough to confirm a judicial nominee. Eventually, a group of 14 senators from both sides of the house agreed on a compromise that would keep the filibuster, but only for “extreme” circumstances. Whether Mr Alito’s nomination is such a circumstance may now be the subject of a bitter partisan fight.

Grim times in the White House

Mr Bush might hope for such a scrap, if it distracted Americans from his many troubles. The most notable and recent of these was the indictment last Friday of Lewis “Scooter” Libby, the chief-of-staff to Dick Cheney, the vice-president. Mr Libby is accused of lying to the FBI and a grand jury in an investigation into the outing of a CIA agent. He has resigned to fight the charges.

The case is a long and twisted one. In early 2002, the Bush administration got word from a foreign intelligence service—thought to be Italy’s—that Saddam Hussein had sought uranium in Niger. Mr Cheney’s office took an interest, seeking to consolidate the case for war. It asked the CIA to follow up, and Joseph Wilson, a retired diplomat, was sent to Africa. He found no evidence for the claim, and after the war wrote as much, angrily, in the New York Times. In the ensuing flap, two “senior administration officials” talked to Bob Novak, a columnist. He wrote that Mr Wilson was sent at the request of his wife, Valerie (née Plame), a CIA “operative” working on weapons of mass destruction. Ms Plame had been an undercover spy. Though by the time of Mr Novak's column she had been based safely in Virginia for several years, the article nonetheless blew her cover. The resulting investigation sought to determine whether someone broke the law in outing her.

Patrick Fitzgerald, a specially appointed prosecutor, has spent two years investigating the case. He forced several journalists to testify to a grand jury as to who from the administration had told them about Ms Plame’s job. One, Judy Miller of the New York Times, refused to talk about off-the-record sources and spent almost three months in jail before ultimately co-operating with the prosecutor. It turned out that she had spoken to Mr Libby. Other reporters had talked to Karl Rove, Mr Bush’s top political adviser.

The core issues of the indictment were how Mr Libby knew Ms Plame’s status, what he said to reporters, and how he described these facts to the grand jury. According to Mr Fitzgerald’s summation, Mr Libby claimed, to the FBI and under oath to the grand jury, to be at the end of a gossip chain, passing what he heard from reporters on to other reporters without substantiation. But in fact, the indictment alleges, Mr Libby learned what he knew from Mr Cheney and other administration officials. The indictment details seven alleged discussions Mr Libby had with officials about Ms Plame. The nub is this: Mr Libby claimed to be “taken aback” to learn, from reporters, that Ms Plame worked for the CIA. In fact, he was the first to put that information to the media.

Mr Libby now faces the prospect of a trial. On Thursday November 3rd, he pleaded not guilty to the charges at a short arraignment hearing, and the judge set the next hearing for February 3rd. Lawyers in the case have given warning that it could become mired for several months in a court fight over classified documents. In the meantime, Mr Libby might try to strike a deal with Mr Fitzgerald that would allow him to avoid a long trial by pleading guilty to lesser charges and co-operating with the investigation.

What of others involved? After all, it was not Mr Libby who first told Mr Novak, the columnist who outed Ms Plame. Who was Mr Novak’s source? Mr Fitzgerald refused to say. Is Mr Rove off the hook? Again, the prosecutor demurred, talking only about the indictment he had just delivered, and saying that it was “standard procedure” to keep a grand jury open in case other matters come up. Mr Fitzgerald was so diligently neutral, despite repeated questions, that no one now knows whether he has merely some cleaning up to do or plans to pursue charges against Mr Rove or others.

Desperate move or brilliant counter-punch?

In nominating Mr Alito so soon after the indictment was announced, the president is seeking to seize the headlines back from Mr Fitzgerald. He certainly needs to do something. Last week saw not only the Miers withdrawal and Mr Libby’s indictment, but the number of American troops killed in Iraq cross the 2,000 mark. Mr Bush’s poll ratings lurk at the lowest levels of his presidency. Conservatives, including his evangelical base, had begun to get uneasy even before the nomination of the not-right-enough Ms Miers.

Rather than reaching across the aisle with his latest Supreme Court pick, it seems that Mr Bush has now put repairing his conservative base first. If he can succeed in getting Mr Alito confirmed, he will have won his first big victory for some time. But the Democrats, sensing a weak administration, will do what they can to make the process as painful as possible.

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