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updated 11/6/2005 12:37:26 PM ET 2005-11-06T17:37:26

MR. TIM RUSSERT:  Our issues this Sunday:  the vice president's former chief of staff, Lewis Libby, is arraigned in federal court.

(Videotape):

MR. THEODORE WELLS:  He has declared that he wants to clear his good name.

(End videotape)

MR. RUSSERT:  President Bush tries again with the Supreme Court replacing Harriet Miers with Samuel Alito; all this as the president's approval rating continues to decline.  What now?  With us, for the Democrats, Senator Ted Kennedy of Massachusetts; for the Republicans, Senator Tom Coburn of Oklahoma. Kennedy and Coburn, a liberal and a conservative, with very different views. Then insights and analysis from Ron Brownstein of the Los Angeles Times, David Gregory of NBC News and Nina Totenberg of National Public Radio.

But, first, the senior senator from Massachusetts, Ted Kennedy, is back on MEET THE PRESS.

Welcome.

SEN. TED KENNEDY, (D-MA):  Good morning.

MR. RUSSERT:  Samuel Alito, the president's new nominee--let me take you back when he was appointed to the Court of Appeals, 3rd Circuit.  Here's Ted Kennedy.  "Well, I just join in the commendation.  You have obviously had a very distinguished record, and I certainly commend you for long service in the public interest.  I think it is a very commendable career and I am sure you will have a successful one as a judge.  ...We are glad to have you here and we will look forward to supporting you and voting for you."

So I assume based on that, you'll support him for the Supreme Court.

SEN. KENNEDY:  Well, it's possible, but let me just point out that that was for a lower court and some 15 years ago.  And since that time, he's had 15 years of decisions on the circuit court.  Those are thousands of decisions that he's been participating in.  First of all, I'm rather distressed and troubled and I'm sure the American people are on how we arrived at this particular nominee.  We went through Harriet Miers' situation which the right wing had a litmus test that Harriet Miers didn't meet, and then they sort of knocked her down.  Now, we have a new nominee.  So it's--and the people that were so enthusiastic about knocking down Miers are so enthusiastic for this nominee.  We have to find out:  Why are they so enthusiastic this time and what do they know that we don't know?

Now, he has had an important career.  There are some important areas that I'm concerned about, his decision about the strip-searching of a 10-year-old girl that was basically rejected by the court, his decision on the Family and Medical Leave which is so important to workers who are trying to make a judgment between the child that they love and the job that they need--that position was over turned by the Supreme Court--and also decisions with regards to disabilities rights where a young person needed a chair to be able to participate in a class and he rejected those rights.  So we'll have a full hearing.  Looking forward to it.  It's an important decision.  I'm open-minded.  And we'll look forward to the hearing.

MR. RUSSERT:  It's interesting, Senator, though, the way the Senate has changed and I think maybe you have changed in the way you approach Supreme Court nominees.  When you first came to the Senate, you said this.  "I want to state that it is our responsibility as members of the committee ...in advising and consenting, that we are challenged to ascertain the qualifications and the training and the experience and the judgment of a nominee, and that it is not our responsibility to test out the nominee's particular philosophy; whether we agree or disagree ..."

You don't question Judge Alito's competence...

SEN. KENNEDY:  No.

MR. RUSSERT:  ...or integrity...

SEN. KENNEDY:  No.

MR. RUSSERT:  ...but you questioned his philosophy.

SEN. KENNEDY:  Judicial philosophy is something that Judge Rehnquist thought was very important for members of the Judiciary Committee to consider.  Judge Scalia feels the same way.  And that's what we ought to--how is a nominee going to view the Constitution?  How are they going to be able to interpret it...

MR. RUSSERT:  But that's different than the way you felt in '67.

SEN. KENNEDY:  ...because we have seen--I think, at the arrival of Judge Bork, we have seen where a nominee was appointed solely really--not only was he a smart person but he was appointed primarily because of his judicial philosophy and that I think opened up the whole process to be able to kind of consider.  And I think Democrats and Republicans, if you read the Republican statements about Miers, you would say the whole list of Republicans said, "We want to make sure we get into the whole issue of judicial philosophy."  I think that that's fair.  American people ought to understand that we aren't going to be something more than a rubber stamp.

MR. RUSSERT:  When Sandra Day O'Connor was nominated to the Supreme Court, Ted Kennedy said, "It's offensive to suggest that a potential Justice of the Supreme Court must pass some presumed test of judicial philosophy.  It is even more offensive to suggest that a potential Justice must pass the litmus test of any single-issue interest group."

And yet if someone came before you as a nominee to the Supreme Court and they said they wanted to overturn Roe v. Wade, you'd vote against them.

SEN. KENNEDY:  Well, if someone came before us and said, "Look, I want--my intention is to overturn Roe v. Wade," that's bringing an ideology to the court.  That's bringing a judicial philosophy that is not just a review about how you're going to look at the Constitution, but that's an ideological decision that they want to go to on court for a specific purpose.

MR. RUSSERT:  But that's a...

SEN. KENNEDY:  Wait a second.

MR. RUSSERT:  But that's a single-issue litmus test.

SEN. KENNEDY:  Now, wait a second.  I am opposed to any litmus test for any nominee.  That's been my position.  But let me continue.  Anyone that would just have a position to overturn Roe v. Wade is going to also have a position of questioning issues on privacy and the liberty clause of the Constitution of the United States.  I've sat through 22 Supreme Court nominations.  You're never going to get someone that is just going to have one view about a particular kind of issue.  If they have a particular issue, that position with regards to one position, they're going to undermine the whole issues of privacy, which is basically the reason that the Constitution was written, is because we are a country that want to preserve our--preserve our privacy and our individual rights and liberties.  So the answer is, yes, I would--I couldn't support someone that had that, not just because of the Roe v. Wade, which I basically support, but because they would--if they had that view, they'd have a view about privacy that carried across the other important areas.

MR. RUSSERT:  Let me ask you this:  When there was a Democratic president, Bill Clinton, he nominated Ruth Bader Ginsburg.  And at that time, "In her confirmation hearings, [Ginsburg] promised not to bring an ideological bias to the court but expressed opinions on several issues that put her at odds with some of her conservative colleagues.  She acknowledged support for a woman's right to choose, praised the failed equal rights amendment and criticized discrimination against homosexuals."

And yet look at the vote.  Ginsburg on August 3, 1993, passed 96-to-3. Stephen Breyer, who worked for you, approved 87-to-9.  Liberal jurists, liberal judicial philosophy, and yet Republicans overwhelmingly said, "We know their views disagree with ours, but a Democratic candidate won the presidency, and he has a right to put those people on the court."  Why won't you give President Bush the same courtesy?

SEN. KENNEDY:  Well, first of all, I think he is entitled, obviously, for the selection.  And he's going to nominate a conservative.  The issue isn't so much are they--do they have a conservative view about the Constitution, but whether they bring an ideology to it, whether they have something that they are committed to that they want to alter and change.  And I think any review of Ginsburg and Breyer's decision would find that they are basically--have moved on through with different kinds of coalitions.  I think that is really the question that's really the test.  That's what we're going to find out about this nominee.

I have voted for six Republican Supreme Court justices over the time I've been in the United States Senate.  So I'm prepared to certainly vote for them, but we have to find that out.  That's what the--that's what the hearings are going to be about, and we'll make our judgment at that time.

MR. RUSSERT:  Are you troubled by Judge Alito's decision to allow a creche and a menorah and other holiday decorations to be on the lawn in front of City Hall?

SEN. KENNEDY:  Well, if the--you know, this is a complicated--because you have the courts going two different ways on something that are very closely related to it.  The general holding, as I understand, of the courts is if the creche and the menorah are a part of other kind of symbols, rather than being the sole symbol, which is a reflection of a particular religion, it satisfies the constitutional requirements.  That seemed to me to make, you know, some sense, that they're a part of a total kind of reflection.  If it's trying to represent a particular kind of religion, then it probably tips the other way. I think that's about where the court; is I'd agree with that decision.

MR. RUSSERT:  That's where Alito was with that distinction.

SEN. KENNEDY:  Well, I'd agree with that distinction.

MR. RUSSERT:  Filibuster:  Do you think the Democrats will mount a filibuster?

SEN. KENNEDY:  Well, first of all, this is like the Buffalo Bills giving their playbook to the New England Patriots, if you think we're going to give away our playbook prior to the time of a nomination.  It's too early, too early in the game.  It's too early in the process.  And I think there--I don't hear that talk outside of the press, quite frankly, from the members in the--on our committee or in the Senate.  I think people want to give them a full opportunity to appear before the committee, make any judgment at that time.  That's a long ways down.  People are concentrating on the hearings.  I don't hear, really that talk, but you don't eliminate any option at this time in the process.

MR. RUSSERT:  Let me refer you to today's Washington Post headline.  "The FBI secret scrutiny."  Thirty thousand letters being sent out to American citizens asking for information about them being held in FBI files, as a result of the Patriot Act.

SEN. KENNEDY:  That's right.

MR. RUSSERT:  Do you regret having voted for the Patriot Act, in light of this kind of...

SEN. KENNEDY:  Well, I--it was the principal reason at that time that we had a sunset for the Patriot Act.  And with the--because there were such extraordinary powers that were being given at a very extraordinary time, after 9/11.  And many of those kinds of violations that have been listed in the paper this morning have been addressed in our Judiciary Committee, the idea that you'd be going through library records, other kinds of private records, and not have the kind of review--not have the kind of requirement for court-ordered approval for those kinds of activities, in the Senate bill have effectively been remedied.  But this is a clear--should be a matter of clear concern.  This is why Americans are so concerned about their own privacy issues.  Privacy involves a variety of issues.  And what has been illustrated in the abuses which have been illustrated clearly show why.

MR. RUSSERT:  Should the information gathered on citizens that does not result in the charging or useful in any investigation, or no wrongdoing, should the information then be destroyed?

SEN. KENNEDY:  Of course it ought to be destroyed.  I mean, we had under the foreign intelligence wiretap process that was really legislation that took place after the whole Watergate and after the Nixon period, of time, very careful protections that were put into that.  Many of those were waived temporarily in the Patriot Act.  A number of those protections were reinstated in the Senate bill, not in the House Bill.  What happened--what you're reading there in The Washington Post today could happen again tomorrow if the House bill were to be successful in the conference between the House and Senate.

MR. RUSSERT:  The White House has also asked some of its top officials to take an ethics course on how to handle classified information.  What's your sense of that, and do you think there should be changes in the White House senior staff?

SEN. KENNEDY:  Well, first of all, I think ethics has to be more than a class, doesn't it?  This starts at a very important part of your life.  I don't think that you can just expect that Harriet Miers, who's conducting this class, is going to be able to bring people up to speed in a very short period of time.  It's not going to work.  Ethics has to be a more basic and fundamental issue, but clearly there has to be a cleaning of the White House.

The American people are not going to have their confidence restored in their government when we have a--basically a democracy in disarray.  We have a damaged presidency and a tarnished White House.  We have the West Wing has really been taken over by the right wing at a time when America should be reflecting its vision of both where we want to stand in the world, what we want to do here at home.  We are being subsumed by scandal after scandal, whether it's Libby and the vice president's office, whether it's the investigations of Karl Rove, or whether it's the disaster over in Iraq or the failure of Katrina.  And American people think that there should be an absolute cleaning of the house.  And it isn't just the clearing of the house and getting new people in there.  It's a commitment and dedication about the openness and truthfulness of government.  That is what that has to...

MR. RUSSERT:  Who should leave?  Who should leave?

SEN. KENNEDY:  Well, certainly Karl Rove ought to leave.  He should...

MR. RUSSERT:  He's not been charged with any crime.

SEN. KENNEDY:  He should leave, though.  He's being investigated at this present time.  We're not assuming either guilty or innocence on any of these individuals.  We're talking about getting a White House back on track.  We're talking about national leadership having a new team together with a strong commitment in terms of openness, truthfulness, and willing to work with the institutions of government.

MR. RUSSERT:  You talked about Iraq.  There's a big debate now about whether or not the data, the intelligence data, was misleading and manipulated in order to encourage public opinion support for the war.  Let me give you a statement that was talked about during the war.  "We know [Iraq is] developing unmanned vehicles capable of delivering chemical and biological warfare agents...all U.S. intelligence experts agree they are seek nuclear weapons. There's little question that Saddam Hussein wants to develop them. ... In the wake of September 11th, who among us can say with any certainty to anybody that those weapons might not be used against our troops, against allies in the region?  Who can say that this master of miscalculation will not develop a weapon of mass destruction even greater--a nuclear weapon. ..."

Are those the statements that you're concerned about?

SEN. KENNEDY:  Well, I am concerned about it, and that's why I believe that the actions that were taken by Harry Reid in the Senate last week when effectively he said that we are going to get to the bottom of this investigation, this had been kicked along by the Intelligence Committee, by Pat Roberts for over two years.  And Harry Reid did more in two hours than that Intelligence Committee has done in two years.  And the American people are going get this information.

And it's important that they get this information about how intelligence was misused because of the current situation.  It's important to know where we've been, but it's important to know where we are today, because we're facing serious challenges over in Iran.  We're facing serious challenges in North Korea.  And we cannot have a government which is going to manipulate intelligence information.  We've got to get to the bottom of it, and that is what the Democrats stood for on the floor of the United States Senate last week.  That was a bold stroke, one that has the overwhelming support of the American people.  It's about time they get the facts on it.  They haven't got the facts to date.  They deserve them, and they'll get them.

MR. RUSSERT:  But, Senator, what the Democrats stood for on the floor of the Senate in 2002--let me show you who said what I just read:  John Kerry, your candidate for president.  He was talking about a nuclear threat from Saddam Hussein.  Hillary Clinton voted for the war.  John Edwards, Joe Lieberman, John Kerry.  Democrats said the same things about Saddam Hussein.  You, yourself, said, "Saddam is dangerous.  He's got dangerous weapons."  It wasn't just the Bush White House.

SEN. KENNEDY:  The fact is--and I voted against the war, because every military--I'm in the Armed Services Committee, and every military leader highly decorated, military leader, said that it was foolish to have a military intervention at that.  General Hoar, with the Marines--General Hoar, who has more Silver Stars than you could possibly count said if  we go into Baghdad, it'll look like the last five minutes of "Private Ryan," so we know we had enough information to vote against it, I believe.

But the point about this is, we have the 9/11 that talked about the intelligence agencies.  The failure of the FBI to talk to the CIA and the rest of it, but they also recommended that we find out how intelligence was manipulated.  Now, we are--we had that committee set up under Pat Roberts.  It has done virtually nothing.  It has done--it's been dismissive.  But Harry Reid is going to get them to tell the truth, and the American people will understand it.  And then hopefully when we get a clean house in the White House and we get individuals that are going to help this president lead for an openness in government, we can avoid any kind of activity like that in the future.

MR. RUSSERT:  What happens if the Iraqi troops aren't in a combat-ready position?  They're not capable of defending their country from an insurrection inside or the borders?  Do you still advocate withdrawing U.S. troops, leaving Iraq to become even more a haven for terrorists?

SEN. KENNEDY:  Well, first of all, it is a haven for terrorists today.  I made the speech a year ago talking about a whole series of steps that could have been taken and should have been taken and I believe still can be taken in order to have a successful withdrawal.  I think those steps should have been taken and still can be taken.  I think it still is possible when we have the completion of the process, which is a constitutional election, Iraqis have to find that they have a nation worth fighting for, worth fighting for.  We lost 25 brave Americans last week--25, over 90 this last month.  And these Iraqis have to have a nation worth fighting for.  After they have this next election, it's worth fighting for, and the continuation of training.

I think there is a way.  There is policy.  If you did have the changing, I think there's obvious we can see substantial withdrawal of troops.  You know, General Casey has appeared before the Armed Services Committee and indicated that there could be a significant withdrawing of troops next year.  The ambassador to Iraq has said the same thing, interview after interview before the committees on it.  Mel Laird has said the footprint by American forces is contributing to the insurgency.  We have seen General Abizaid say the same thing before the Armed Services Committee.

It is time now to--we are going--the end of this year, Tim, we find that our mandate has expired in the United Nations.  The president has to go back to the United Nations for a new mandate.  This is a new opportunity for new leadership and a new way to make Iraq for the Iraqis and to speed up that training and start the withdrawal of the American troops.

MR. RUSSERT:  Senator Ted Kennedy, thank you for your views.

SEN. KENNEDY:  Great time.  Thank you.

MR. RUSSERT:  Coming next, the view from the Republicans with Dr. Tom Coburn, United States senator from Oklahoma.  Then our roundtable, Ron Brownstein of the LA Times, David Gregory of NBC News and Nina Totenberg of National Public Radio, coming next right here on MEET THE PRESS.

                               (Announcements)

MR. RUSSERT:  Republican Senator Tom Coburn of Oklahoma plus our political roundtable, after this brief station break.

                               (Announcements)

MR. RUSSERT:  And we are back.  Dr. Tom Coburn, welcome.

SEN. TOM COBURN, (R-OK):  Thank you.  Good to be here.

MR. RUSSERT:  We're talking about the Supreme Court, the judicial philosophy, litmus test.  Back in the campaign when you ran for the Senate in September of 2004, you said, "As a physician, I know partial birth abortion is a barbaric act that is never justified.  As a senator, I will oppose the confirmation of any judicial nominee who thinks the people have no right to outlaw this atrocious act."  Litmus test in effect.

And now you're saying, "Applying rigid litmus tests to this nominee would be unfair and inappropriate.  The President and Senate have a solemn duty to nominate and approve judges who will reflect the Constitution and the Constitution alone, not any other standard--ideological or otherwise."

Isn't it true now that you could never vote for a candidate who came forward and said, "I believe in Roe v. Wade a candidate for Supreme Court.  I believe that partial birth abortion is constitutional."  You couldn't accept that just as Senator Kennedy said he couldn't accept someone who wanted to overturn Roe v. Wade.

SEN. COBURN:  Oh, I think I could, Tim.  I think if, in fact, they had a judicial philosophy that said-- you know, there's two camps out there.  One wants to move the Supreme Court back hard to where it was pre-Roe v. Wade by becoming activists in terms of a conservative camp.  There's another that says, "Let's go back to where we were before we moved this hard shift to the left and let's have judges that don't make law, that follow stare decisis and look at the times when stare decisis needs to be overturned and overturn it." That's happened 200 times in our history where the Supreme Court has overruled their own precedence.  So the question is the philosophy:  Do you march hard to the right or do you march back to the center and let the process take its course as it should?

You know, overturning Roe v. Wade isn't going to change our country significantly if we don't change hearts and minds of people.  And part of our division in our country today has been led on those issues.  And to reverse it abruptly in a fast way isn't going to solve our problems with abortion because it'll just move it to the state.  What we need to do is we need to change people's hearts.

MR. RUSSERT:  So if someone came forward, if there was a Democratic president and they put forward a candidate who said, "I believe in Roe v. Wade and we're not going to overturn it," you would consider voting for them?

SEN. COBURN:  Absolutely.  And I said that during the campaign as well.

MR. RUSSERT:  Judge Alito--this is reported this week in the Los Angeles Times:  "As a college senior at Princeton University, Samuel A. Alito Jr. wrote a report that recommended the repeal of laws that made sex between gays a crime and urged new antidiscrimination laws for gays in the workplace.  He was writing as a chairman of the 16-member student conference that had been asked to examine the `boundaries of privacy in American society.'"

Will you ask him about that?

SEN. COBURN:  Probably not.  I probably won't ask him about anything that has to do with a decision.  What I will do is look at his--the decisions he's made, look at the writings, and talk to him about foreign law and utilization of foreign law and making decisions in this country which I think totally violates their oath.  I think they can come down on anywhere if they look at the Constitution.  What I want is somebody to look at what the founders said, what the Constitution, the laws and the treaties say, and use that to make decisions, not use public opinion, not use political philosophy to make decisions.  And I think that--you know, I think we've all said and been in positions that we would want or not want to defend at times, and I don't think that we have to make our decisions based on that.  I think what we do is we look for an overall philosophy, as--What is the role of the court?  And will he be a judge that will follow what the founders intended to be the role of the court, which is to interpret, not create and expand and make new law?

MR. RUSSERT:  But voicing his opinion, as he did there on gay rights, you recall in the campaign back in Rogers County, when you made comments like this, telling a group of local Republicans that-- "[Coburn] told a meeting of local Republicans that `the gay community has infiltrated the very centers of power.  They are the greatest threat, that agenda is the greatest threat to our freedom we face today.'"

SEN. COBURN:  It's a threat to undermine the family.  It does undermine the family.  And if you look at the structural problems with our country today, what is happening to us at every level as a nation and in our culture?  Our families are falling apart.  If you look at how we spend money in the federal government, the increasing amounts that we're spending are to attack--attack--the very problems where the family is falling apart.

MR. RUSSERT:  Is that because of gays?

SEN. COBURN:  No.  It's a symptom of it.  There's--it's--there's not a cause and effect.  But if we look at any problem that we're facing today in our nation, anything that detracts or undermines this very basic unit of culture is going to undermine our entire country.

MR. RUSSERT:  So aren't Judge Alito's views on gay rights relevant to this discussion for you?

SEN. COBURN:  I believe he can have views on gay rights very different than mine and still make a great Supreme Court justice.

MR. RUSSERT:  Let me ask you about another decision.  And the Brady Center to Prevent Gun Violence put this out last night.  This is from Jim Brady, White House press secretary for Ronald Reagan who was shot in the assassination attempt:  "Judge Samuel Alito's dissent in U.S. v. Rybar ...argued that federal restrictions on machine gun possession amounted to an unconstitutional of congressional power under the Commerce Clause.  ...his opinion attempted to erect arbitrary hurdles to congressional efforts to reduce the availability of machine guns to the criminal element."

These aren't handguns or hunting rifles.  These are machine guns.  Do you believe that Congress has the right to restrict the sale and transfer of machine guns, or do you think that Judge Alito's correct that Congress should not be interfering in that?

SEN. COBURN:  No, I think we probably have the right to do it.  But I don't think a judge has the right to make that decision.  I think Congress--and that brings us back to the whole point.  Those aren't decisions judges should be making.  Those are decisions that legislators should be making.  And that's how we've gotten off on this track is, that we allow judges to start deciding the law, new law, rather than interpret the law that the Congress--what the--what should have happened in that case is this an area that's up for debate and needs to go back to Congress.  If Congress decides that, then it should be there.

MR. RUSSERT:  So Judge Alito was wrong?

SEN. COBURN:  Sure.

MR. RUSSERT:  And he was legislating.

SEN. COBURN:  Sure.

MR. RUSSERT:  So conservative jurists or strict constructionists can also legislate.

SEN. COBURN:  Well, I'm not sure that's what he is yet.  You've assumed that. I haven't made that decision on what he is or any...

MR. RUSSERT:  I'm not making any judgment.  I'm...

SEN. COBURN:  Well, you just said, "A strict constructionist can legislate." I'm sure that we all can, and nobody's pure in any way.  But I would hope that whatever judge is on the Supreme Court or on the circuit courts or on the appellate branches looks back at the base of what we need to be about, and that's interpreting law and not going beyond that.  And it's OK to communicate with Congress, "We think we have an era here--area here that you ought to be working on rather than us working on."

MR. RUSSERT:  In Bush v. Gore, the Supreme Court decision that decided the 2000 election, it was equal protection.  Do you think the Supreme Court expanded equal protection doctrine?  Was that an activist court?

SEN. COBURN:  I don't know.  I don't know the answer to that question.

MR. RUSSERT:  Let me ask about something else, and this intrigued me when I watched you during the John Roberts confirmation hearing when you were explaining how you came to make a decision and you used your skills as a doctor.  Let's watch.

(Videotape, September 14, 2005):

SEN. COBURN:  I've tried to use my medical skills of observation of body language to ascertain your uncomfortableness and ill at ease with questions and responses.  I will tell you that I am very pleased both in my observational capabilities as a physician to know that your answers have been honest and forthright as I watch the rest of your body respond to the stress that you're under.

(End videotape)

MR. RUSSERT:  Do you believe as a physician you can tell whether a candidate for the Supreme Court is telling the truth?

SEN. COBURN:  I think you can certainly tell when they're ill at ease with a subject and sometimes telling the truth or not.  I think you can do that.  I think you can do that--anybody can be trained to do that--by body language, respiratory avoidance responses.  Yeah, I think you can.

MR. RUSSERT:  And have you used those skills to make judgments like that?

SEN. COBURN:  Mm-hm, I certainly have.

MR. RUSSERT:  Has any--have you ever detected someone lying?

SEN. COBURN:  Uh-huh, lots of times.

MR. RUSSERT:  In your hearings.

SEN. COBURN:  Sure.

MR. RUSSERT:  Such as?

SEN. COBURN:  Well , I'm not going to say that.  You know, I'm--in lots of hearings that I've had on federal financial management where we're looking at the $100 billion that we found wasted far this year from 2004, I found lots of times when people were not truthful.  Absolutely.

MR. RUSSERT:  Based on your skills as a physician.

SEN. COBURN:  Yeah.  And then what you do is you go then look it up and see where the problem is and all of a sudden you find, wait, this isn't truthful.

MR. RUSSERT:  The Washington Post today--I mentioned this to Senator Kennedy. The FBI's secret scrutiny, 30,000 letters being given to American citizens seeking information.  Do you think the Patriot Act should be adjusted not to allow this?

SEN. COBURN:  Absolutely.  I think the Patriot Act--first of all, I wanted to sunset every portion of it.  I lost that battle in the Judiciary Committee. We do have a sunset portion on two major segments of it on the the Senate's position.

I think we need to be very careful with the Patriot Act.  We should not ever give up freedom on the basis of fear, and any freedom that we give up should be limited in time and limited in scope.  And so therefore I believe the Patriot Act across all levels should be sunsetted just as I believe every other law we passed in terms of giving the government new powers or new programs should be sunsetted so that we come back and have to make a decision about it.  The Patriot Act coming out of the House has no sunset provisions. And I believe it's important for Americans' rights that we sunset those and look at them again.

MR. RUSSERT:  And the information gathered on American citizens, if it's not evidentiary towards...

SEN. COBURN:  Should be destroyed immediately.

MR. RUSSERT:  And you'll take steps to try to do that?

SEN. COBURN:  I certainly will.

MR. RUSSERT:  Let me turn to the whole issue of prewar intelligence.  Pat Roberts was on MEET THE PRESS July of 2004, chairman of the Intelligence Committee.  I asked him about phase two of the investigation.  Would he conduct it?  Would we hear from him?  This is July, 2004.  Listen to what he said.

(Videotape, MEET THE PRESS, July 11, 2004):

SEN. PAT ROBERTS, (R-KS):  Even as I'm speaking our staff is working on phase two and we will get it done.

(End videotape)

MR. RUSSERT:  That was July of 2004.  He came back on April of 2005 and I asked him this question.  Here was his response.

(Videotape, MEET THE PRESS, April 10, 2005):

MR. RUSSERT:  When your report came out, there were many people who said that you were not going forward with phase two about exaggerations and shaping, that you didn't want to involve yourself, influence the election.  You made a firm commitment to do just that.

SEN. ROBERTS:  Tim, we're going to do that I will bring it here.  We'll have the 50 statements.  We'll have the intelligence.

(End videotape)

MR. RUSSERT:  Five months later...

SEN. COBURN:  Yeah.

MR. RUSSERT:  ...still no report.

SEN. COBURN:  Yeah.

MR. RUSSERT:  Will the American people hear from the Senate Intelligence Committee as to their report on prewar intelligence?

SEN. COBURN:  Oh, I think they will but they're not going hear anything new. It's been looked at by three or four commissions.  You know, the statements that have been made, the commissions and studies that have looked at it, it is our information, even though it was poor and in error was the same that everybody else had in the world.  The question is did somebody try to manipulate the intelligence to make a justification?  That's the question that we want to--and I don't think that anybody's seen that and where it's been looked at.  And so the danger here is do we make something a real partisan issue?  You know, this ought to be a--totally exposed and the data there.  And if there's a problem, then that is a whole different issue.  But to create a problem for political gain, I think it's going to hurt our country.

MR. RUSSERT:  But there's reports today, Senator, in the paper, al-Qaeda official who was apprehended and was debriefed and told mistruths, gave bum information.

SEN. COBURN:  Yeah.

MR. RUSSERT:  That information was used even after some people in the administration knew it was untrue.

SEN. COBURN:  Well, I think the article that you're referring to was in The Post today, and I believe that they said that there's not a connection, that somebody in the administration actually had that.  Well, some of the national security staff might have it, but not that the administration directly did.  I don't know the answer to that.

What I do know is we want truthfulness in government and that ought to be looked at and it should not be delayed and I don't believe that's the intent. And I believe that we ought to have a full hearing.  But I also believe believe that if, in fact, what has been said up--the three studies that have looked at this so far, and said there is no, no, no any intention--and I think the other thing is remember the context that this was made in.  The CIA underestimated Libya.  The CIA underestimated North Korea.  The CIA underestimated India in terms of their own nuclear.  So you take three episodes of where they're underestimating and then you apply that.  What if we had been wrong?  What if it was totally the opposite way?

So I think looking at the context of that--we should get to the bottom of it. There's no question.  But we shouldn't use it as a way to gain the political system.  That's the biggest problem I see in Washington is gaming.  And the gaming hurts our country in the long run although it might help one party or the other.  And Republicans are just as guilty of it as Democrats.

MR. RUSSERT:  Wouldn't it have been fair to the American people if that report came out in October of 2004, before the election?

SEN. COBURN:  Sure.  I don't have any disagreement with that.

MR. RUSSERT:  One last question, and this is an interesting quote I read at a speech you gave to the University of College Republicans.  "Republican politicians are the same as Democratic politicians in they like to spend money.  Democrats want to raise taxes to pay for it, and Republicans allow the next generation to pay for it."

SEN. COBURN:  That's right.

MR. RUSSERT:  You believe that?

SEN. COBURN:  I do.  I believe the main reason to have Republicans is to limit the government, and if they're not going to do that, the advantage goes away. And I believe that overall, in the last--since 1997 in this country, politicians of both sides, of both ilks have spent our kids' future away.

MR. RUSSERT:  There's been a Republican press president, a Republican House, a Republican Senate.

SEN. COBURN:  Absolutely.

MR. RUSSERT:  You plead guilty?

SEN. COBURN:  Sure.  I don't plead guilty.  I've been doing everything I can to trim spending from the day I got here and will continue do it.

MR. RUSSERT:  But your party's guilty.

SEN. COBURN:  Well, my party is guilty.  They're less guilty than the $500 billion that's been offered this year on the Senate floor for increased spending.  So are they better?  Yes.  But has spending grown too much? Absolutely.  You know, we have added--and this is Democrats and Republicans alike, and they voted.  If you look at any appropriation bill, the ones that are voting against it aren't the Democrats.  It's the six to 12 or 10 conservative fiscal conservatives that are voting against it.  But you know, we've added $2,000 to everybody's debt last year.  And in face of Katrina, in face of the war, in face of the structural deficits we have, we can trim hundreds of billions of dollars from this government with that-- before we ever raise taxes.  We may end up having to do that, but we shouldn't do that until such time as we trim spending.  Everybody in the country knows it except Washington, and it's time Washington woke up.

MR. RUSSERT:  Dr. Tom Coburn, senator from Oklahoma, thanks for your views

SEN. COBURN:  Thank you.

MR. RUSSERT:  Coming next, George W. Bush and his second term.  Our political roundtable with Ron Brownstein, David Gregory and Nina Totenberg. They're all coming up right here on MEET THE PRESS.

                               (Announcements)

MR. RUSSERT:  And we are back.  Welcome, all.

The Washington Post on Thursday, "Rove's Future Role Is Debated.  Top White House aides are privately discussing the future of Karl Rove, with some expressing doubt that President Bush can move beyond the damaging CIA leak case as long as his closest political strategist remains in the administration."

And tomorrow's Time magazine, "Karl Rove's Colleagues Already Laying Out Reasons For His Departure," Time reports.

David Gregory, you cover the White House, what's going on?

MR. DAVID GREGORY:  Well, I think the president's in a lot of trouble. Everybody knows that.  And when this piece came out this week, it was interesting.  The White House officials tried to walk it back, but they didn't try to totally dismiss it.  The officials have told me this week, "Look, the president knows that as long as Karl Rove is there, the president can't speak out.  He can't lift the cloud of this leak investigation."  And at some point, the president has to account for his top officials who were involved in this matter whether they committed a crime or not because it may well have been conduct that he wouldn't normally countenance in his White House.

MR. RUSSERT:  Ron Brownstein, the Associated Press article, "President George W. Bush's job approval has fallen to the lowest level of his presidency amid worries over the Iraq war, a fumbled Supreme Court nomination, the indictment of one White House aid and uncertainty about another. ... A new AP-Ipsos poll found Bush's approval rate was at 37 ...  About 59 percent of those surveyed said they disapproved.  The intensity of disapproval is the strongest to date, with 42 percent now saying they `strongly disapprove' of how Bush is handling his job--twice as many as the 20 percent who said they `strongly approve.'"

MR. RON BROWNSTEIN:  Well, four separate polls, Tim, came out last week with President Bush under 40 percent at the lowest ebb of his presidency.  And that intensity is especially important because the political strategy since Bush came into office has been to mobilize their base.  They've always accepted the fact that their agenda may polarizing, it may cost them some support in the middle, but they were counting on Republican support at high levels to overcome that.  Now, they're facing a situation where by all of these numbers, there seems to be more intensity in the anti-Bush than the pro-Bush sentiment.

I want to give you just a couple of numbers very quickly.  Today, The Washington Post-ABC poll, 39 percent approval for Bush.  Thirty-seven percent say they want to vote Republican for Congress in 2006.  Thirty-eight percent say they trust Republicans more than Democrats to deal with the most important problems facing the country.  Those are not coincidences.  It may not track always that precisely, but if Bush stays where he is, there will be danger for his party next year.

MR. RUSSERT:  Nina Totenberg, was one of the reasons that Harriet Miers had such a hard time was because Republicans perceived that George Bush is now not at a strong political position?

MS. NINA TOTENBERG:  No, I don't think so actually.  I think that his conservative base simply revolted.  And both the intellectuals and social conservatives who think that they in some sense own this presidency--they thought the president had betrayed them.  And even if he had been in a strong position, I think they would have gone bananas anyway.

MR. GREGORY:  And there was an aspect to this that the conservatives were waiting to revolt in the first place over the high spending, over the conduct of the war in Iraq.  They simply were not happy and this was the straw that broke the camel's backs.

MR. RUSSERT:  This debate--and we saw a preview of it today, this morning, with Senator Kennedy and Senator Coburn about judicial philosophy.  There's no doubt about it.  Charles Lane wrote a piece on Tuesday in The Washington Post. Headline:  "Alito Leans Right Where O'Connor Swung Left."  It says, "In 1991, Judge Samuel A. Alito Jr. voted to uphold a Pennsylvania statute that would have required at least some married women to notify their husbands before getting an abortion; a year later, Justice Sandra Day O'Connor cast a decisive fifth vote at the Supreme Court to strike it down.  In 2000, Alito ruled that a federal law requiring time off for family and medical emergencies could not be used to sue state employers for damages; three years later, O'Connor was part of a Supreme Court majority that said it could.  And last year, Alito upheld the death sentence of a convicted Pennsylvania murderer, ruling that his defense lawyers had performed up to the constitutionally required minimum standard.  When the case reached the Supreme Court, O'Connor cast a fifth vote to reverse Alito."

Is that what we're going to hear from the Democrats, "This is not Sandra Day O'Connor"?

MS. TOTENBERG:  Absolutely.  They're going to say this is going to tip the court dramatically to the right.  They're probably correct, to some extent, about that, unless there's some incredibly unforeseen thing that happens if Judge Alito is confirmed.  And frankly, if you look at the Democrats right now who are struggling to show places where they're different from the president, there's not much in it for most of them to vote for this nominee.  They may not succeed in defeating him, but I can't see a reason for them to vote for him.

MR. BROWNSTEIN:  You know, in this first week it seems already there are two very different portraits of Judge Alito that are emerging.  From the supporters you get--you have former colleagues on the 3rd Circuit and many former law clerks who are out there arguing this is someone who is very careful, very cautious, who has an open mind, who opposes--who approaches...

MS. TOTENBERG:  Yeah.

MR. BROWNSTEIN:  ...these cases one by one and makes careful distinctions and limited decisions.  From the critics you're getting the argument:  Well, that all may be so, but all--his reasoning always seems to lead him into the same conclusions.  And so the fundamental debate here is whether we have someone who is an ideologue, which is the way the opponents are going to portray him, or someone who really is just a very cautious, careful judge who is applying the law as best he can, even in the 1991 case struggling with Supreme Court precedent, and certainly in the machine-gun case that you cited, Supreme Court had made a ruling the year before.  That is a fundamental divide, I think, we're going to see over these next two months.

MR. RUSSERT:  David Gregory, Republicans will point out, however, as I did with Senator Kennedy, as well, and journalists and other observers of the court, Ruth Bader Ginsburg and Stephen Breyer-- they're liberal philosophies, Breyer working for Kennedy; Ginsburg general counsel for the ACLU.  And yet Republicans overwhelmingly voted to allow them to go on the court.

MR. GREGORY:  Right.

MR. RUSSERT:  And they say, "Why can't we have the same courtesy to conservative jurists under President Bush?"  Has the climate changed that much?

MR. GREGORY:  Well, I think it's a change in climate, and you're right--and Justice Ginsburg also made some of her views known, her ideological views. And in this case Judge Alito may have let sort of less out of the bag on that score.  But I think that there is a political climate that also has led Democrats to say there was a qualified nominee in Miers, which--some of them felt that--who was simply bowled over by the right wing in this country, and that's why it's kind of a campaign line, which is, "We can oppose Judge Alito and say we're opposing the right wing."

MS. TOTENBERG:  You know...

MR. BROWNSTEIN:  That's a...

MS. TOTENBERG:  You know...

MR. BROWNSTEIN:  That's a pretty tactical endorsement.

MS. TOTENBERG:  Yeah.  But it...

MR. BROWNSTEIN:  If the Republicans would have voted for Miers they would have been the other way.

MS. TOTENBERG:  If you look at the Ginsburg nomination, for example, she'd been a judge, I think, for 12 years.  She'd been, actually, a pretty conservative liberal judge, if you can be such a thing.  And President Clinton decided he didn't want to have a big fight.  And he went to Orrin Hatch and he said, "Who would you endorse?  Who can you get through?"  And he gave him two names:  Ruth Bader Ginsburg and Stephen Breyer.  And in successive years, that's who Clinton nominated.

MR. RUSSERT:  Would there be a conservative Republican jurist who the Democrats would support?

MS. TOTENBERG:  Oh, I think there are probably lots of them, but they wouldn't--you know, most-- and some of them are women, interestingly enough. And they're more conservative than O'Connor, but they are less conservative than Alito.

MR. BROWNSTEIN:  Yeah, but your underlying point, I think, is correct, Tim. I mean, we are in a period of intense polarization in which both parties are under enormous pressure from their base to be more confrontational.  There've been polls in the last few weeks where President Bush's approval rating among Democrats--in single digits; I mean, numbers that are almost unimaginable--7 percent.  In that environment, you're going to get more no votes, regardless of the nominee, than you might have if you had a president who was operating with a greater consensus in the country.  It's very revealing:  People for the American Way, the liberal group, is probably going to lead the opposition. Their first ad focused not on Judge Alito, but on President Bush, linking him to President Bush.  I think that was very telling of the situation we're in.

MS. TOTENBERG:  And they do focus groups.  They don't just do ads because they feel like it.

MR. RUSSERT:  Ruth Marcus wrote a piece in the The Washington Post opinion section saying that Miers was a disaster for feminists and for women because it gave a suggestion, well, we tried a woman, that didn't work, now let's go back to someone who's really qualified.

MS. TOTENBERG:  I think that's right.  You know, they picked a woman, probably a nice woman, a woman you might hire if you were in a corporation but who had no constitutional law experience whatsoever and did things in successive weeks that each time made her look less and less qualified.  And then, of course when she gets dinged, then we go back, as Ruth Marcus said, to some white guy.

MR. GREGORY:  The part of the problem is the president made the mistake, it seems, in trying to frame this, that this is the most-qualified candidate out there.

MS. TOTENBERG:  Yes.

MR. GREGORY:  What he really meant to say was, "I want somebody from outside the judiciary and on that score and given other facets of her skills, she is the most qualified."  But he got himself in that trap.

MR. RUSSERT:  The Weekly Standard has an editorial tomorrow, Ron Brownstein, saying to Republicans start fighting back on this prewar intelligence attacks by the Democrats, that the administration has been too tentative in taking that issue on.  How big of an issue is this?

MR. BROWNSTEIN:  Well, you know, I think that I agree that the public judgment about the war in Iraq is going to be much more prospective than retrospective, that it's ultimately what's driving the anxiety about the war is where we are going, whether we can make a success of it, or whether these troops are dying essentially in vain.  But having said that, there's no doubt that the percentage of Americans who think that they were--that the administration deliberately misled the country has been rising, and that is a long-term threat, especially against the backdrop of everything else that's going on.  All these other ethical challenges from so many fronts, from the Jack Abramoff investigation to FEMA to Tom DeLay, all of this does feed in together.  And they're probably right that in a tactical sense Republicans have figure out what their answer is to these charges.

MR. GREGORY:  And it's why Karl Rove continues to be a political liability for the president, that the leak case added to the prewar promises that were not fulfilled puts a stain on this White House.

MS. TOTENBERG:  When you have weapons of mass destruction that weren't found and now 55 percent of the American people say they don't trust the president, getting back that trust, which is the reason he was elected, is a very difficult proposition.

MR. RUSSERT:  Patrick Fitzgerald in the indictment the press conference, said this is not a trial about the Iraq War.  And yet Lewis Libby's lawyer said very openly this is a national security case.  They're going seek national security clearance.  Will there be an attempt to put the war on trial in the Libby case?

MS. TOTENBERG:  I think the prosecutors will try very hard not to and that the Libby defense may even use classified information as a reason to try to limit what kinds of things can be introduced as evidence at the trial.  But in the end Lewis Libby told a long story that's underlined in that indictment. Usually in an indictment you see a couple of phrases underlined as alleged lies.  In this one it's a whole tale, so to speak.  And so I think it's harder.  Go ahead.

MR. RUSSERT:  Five government officials and three journalists, including yours truly, included in that.

MR. BROWNSTEIN:  At some point the president is going have to answer--and not only the president but the vice president is going to have to answer questions that are raised in that indictment beyond the legal process.  The indictment clearly lays out a conversation on Air Force Two between Lewis Libby and other officials while he's traveling with the vice president before he talks to reporters about Valerie Wilson's status.  Clearly at some point, I think the American people have a right to know what was discussed on the plane, what the vice president said and the president himself cannot probably--I can't see how he can go indefinitely saying he's not going comment on Karl Rove's assertions to the American people that he was not involved.

MR. RUSSERT:  And the White House press secretary said to you and to the American people...

MR. GREGORY:  Yes.

MR. RUSSERT:  ...David, Karl Rove, Scooter Libby, not involved.

MR. GREGORY:  And clearly they were involved.  And Scott McClellan and the White House know they have a problem on that score with their credibility.

MR. RUSSERT:  To be continued.  David Gregory, Ron Brownstein, Nina Totenberg.  Thank you.

We'll be right back.

                               (Announcements)

MR. RUSSERT:  And we are back.  Fifty-eight years ago MEET THE PRESS debuted as a television program on NBC.  It is now the longest-running program in the world.  Our first guest on that Thursday night at 8 p.m. was James A. Farley, F.D.R.'s close adviser and former chairman of the Democratic National Committee.  Happy birthday, MEET THE PRESS.  On to 59.

That's all for today.  If it's Sunday, it's MEET THE PRESS.

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