The Note: And Still It Begins

— -- WASHINGTON, July 21

NEWS SUMMARY
What the Gang of 500 thinks about the Roberts nomination (and, again, remember, the Gang might be all Here, but they are often wrong):

1. Roberts will be confirmed.

2. The Gang of 14 (only 8 of whose members are in the Gang of 500) is not going to settle this.

3. The moment at the confirmation hearings that will matter will be the first (or cleanest) colloquy that Roberts has with a Senator on his view of overturning Roe.

4. Roberts (and Karl Rove) already know how Roberts will answer that question.

5. Roberts' failure to join the Federalist Society is either odd or brilliant. LINK

6. The casting of Fred Thompson and Ed Gillespie: perfect.

7. Sandra Day O'Connor, you go, girl.

8. Extra credit for wondering: will all broadcast networks cover the hearings gavel-to-gavel?

The best thermometer we have seen on the Roberts nomination -- liberal Richard Cohen's column:

"It seems to me that it is the Democratic Party that has a problem. It can either come to terms with reality or appear, to much of the country, both petulant and in the grip of special interests, particularly the pro-choice lobby." LINK

Dan Bartlett couldn't have said it better himself.

The Wall Street Journal editorial page Magic 8 Balls Roberts and says he will likely be between Scalia/Thomas (on the one hand) and O'Connor/Kennedy (on the other).

If that turns out to be right, what will history say happened to the President's campaign promise to pick people in the Scalia/Thomas mode?

Put another way:

What do Dr. Dobson, Leonard Leo, Jay Sekulow, Ted Cruz, the Chamber of Commerce, Hugh Hewitt, Boyden Gray; David Keene, all the major conservative bloggers, Rush (with special Wednesday guest Dick Cheney vouching!), and the National Review folks know that Fred Barnes, Ann Coulter, and Dan Flynn don't know about the slam-dunk certainty that Roberts will never vote like Souter (or, even, Kennedy)?

Does pro-abortion rights Republican Ann Stone have any actual reason to be "cautiously optimistic"? LINK

The thin reeds for the grasping: trying to make the Solicitor General internal documents famous for not being released and win that PR war; demonize Mrs. Roberts; get the Roberts' video rental records (just kidding); look at Judge Roberts' time in private practice; and Florida 2000.Note question: If NeasAron got their way and Roberts were defeated, do they think that President Bush would nominate someone less conservative?

Thus, the best place to be for the next few weeks for flies-on-the-wall: the heart-to-heart talks between the liberal activists and the Democratic Senators who just might break their hearts.

Judge Roberts has another full day on the Hill where he is expected to meet with more members of the Senate Judiciary Committee. He meets with Sen. Hatch at 11:30 am ET. The Gang of 14 met for breakfast this morning.

Justice Sandra Day O'Connor speaks to a judicial conference at 11:30 am ET in Spokane, WA. C-SPAN will carry her address live.

President Bush makes remarks on CAFTA at 10:10 am ET today, amid an awesome Washington Post account of how the Republicans are rounding up the votes the way trade votes always seem to get rounded up. LINK

Bush is also scheduled to attend a dinner fundraiser in McLean tonight for Virginia gubernatorial hopeful Jerry Kilgore.

At 9:20 am ET, Vice President Cheney speaks to the Department of Veteran Affairs' 75th anniversary celebration.

Rep. Nancy Pelosi (D-CA) holds a press conference at 10:45 am ET.

Sen. Hillary Clinton (D-NY) and former House Speaker Newt Gingrich (R-GA) attend an 8:00 am ET forum on health care issues, sponsored by the American University's Center for Congressional and Presidential Studies.

Now a break for real news:
At this writing, something is happening in the London underground…

And breaking news from the AP: "China said Thursday it will no longer peg its currency to the U.S. dollar but instead let it float in a tight band against a basket of foreign currencies."

ABC News' Betsy Stark boils it down:

"There have been rumors in the markets for weeks now that a 'revaluation' of the Yuan was imminent. It was important to the Chinese to appear not to have reacted to US pressure but to appear to undertake this move on its own, at a timing of it's own choice."

"The reality is the way in which the Chinese are doing this is very modest. As I understand it, the Yuan will not fluctuate within a band of more than 3% of it's current value, certainly not enough to change the balance of trade between the US and China or give US exporters the advantage they seek--namely, a much cheaper dollar relative to the Yuan which would make US exports much cheaper and Chinese imports more expensive."

"Even so, this is a watershed event. Stock market futures are rallying on it. Look for a strong open."

A second bit of economic news sure to please Trent Duffy: "The Labor Department reports that the number of Americans filing claims for unemployment benefits dropped by 34,000 last week, the biggest decline in 2½ years," the AP reports.

Roberts: news of day:
The Washington Post's Peter Baker and Charles Babington write that "Democrats seemed increasingly resigned to the notion (sic) that they cannot stop his appointment." LINK

But/and Ben Nelson wants everyone to just cool down a bit.

The duo also Note: "Democrats prepared for a strategy that recently has served them well on contentious nominations: focusing on a nominee's refusal to answer questions or provide documents rather than just the person's political beliefs."

Bloomberg's James Rowley imagines a confirmation battle that has much more to do with the legislative vs. executive branches than it does with the nominee.

"A dispute between Democrats and the Bush administration over Roberts's memos would transform the debate over the nomination, [Brookings' Stephen] Hess said. The issue 'swings from his qualifications to a fight with the executive branch over the right to know,' he said."

"That battle may be bruising, with the Bush administration maintaining that withholding the memos protects the candor of government lawyers and Democrats claiming a right to know the nominee's views."

Mike McCurry in the New York Post: "He'll face tough questions, but it's hard to imagine he can be filibustered. I have to think at least five or six Democrats would be inclined to vote for him... The Republicans start with 55 votes in the Senate and Democrats need to remind themselves of that. Plus, he sounds at least from what we know right now like a decent, thoughtful, reflective guy." LINK

Maura Reynolds' news of day piece for the Los Angeles Times highlights Sen. Schumer's interest in those materials written by Judge Roberts back in his DOJ days and Sen. Hatch calling that "hitting below the belt." LINK

"A survey yesterday by The Washington Times of all 100 senators found that 44 senators -- all Republicans -- support Judge Roberts' nomination to the high court -- at least for now. Fifteen senators, including nine Democrats, made a point to praise Judge Roberts but stopped short of endorsing his nomination," reports the Washington Times' Charles Hurt. LINK

Elisabeth Bumiller of the New York Times sort of says that the finalists were J. Harvie Wilkinson III (for sure), and Edith Brown Clement, Edith H. Jones and J. Michael Luttig (maybe). LINK

Jeanne Cummings in the Wall Street Journal (along with everyone else) writes that business loves Roberts but still is scrutinizing his record.

Roberts: the Democrats:
The New York Times' Nagourney and Hulse on the liberals frustrated at the lack of a paper trail and the fact that no Democratic Senator is on the record in opposition yet. LINK

Write Brody Mullins and John D. McKinnon in the Wall Street Journal "One wild card in the debate is the reaction of the bloc of Democratic senators interested in their party's 2008 presidential nomination. The 2004 Democratic nominee, John Kerry of Massachusetts, quickly called Judge Roberts 'no Sandra Day O'Connor' and raised expected questions about the judge's views on civil rights and abortion."

"For other possible White House aspirants, the choice is complicated. Sen. Evan Bayh of Indiana has cultivated a moderate reputation, and Judge Roberts is a fellow Hoosier. But Mr. Bayh would have to appeal in the 2008 nomination contest to left-leaning primary voters and donors, many of whom are expected to line up against Judge Roberts's nomination."

Democratic front-runner Hillary Rodham Clinton could face the opposite kind of strategic dilemma. An icon among liberals, Ms. Clinton has spent recent years burnishing her moderate credentials on issues like national security. Acquiescing in Judge Roberts's nomination could offer another opportunity to do the same thing. Her initial reaction called for a 'thoughtful and deliberate' confirmation process without indicating either support or opposition."

Roberts: abortion:
Richard Serrano of the Los Angeles Times writes of Mrs. Roberts: LINK

"A Roman Catholic like her husband, Jane Roberts has been deeply involved in the antiabortion movement. She provides her name, money and professional advice to a small Washington organization -- Feminists for Life of America -- that offers counseling and educational programs. The group has filed legal briefs before the high court challenging the constitutionality of abortion."

"A spouse's views normally are not considered relevant in weighing someone's job suitability. But abortion is likely to figure prominently in the Senate debate over John Roberts' nomination. And with his position on the issue unclear, abortion rights supporters expressed concern Wednesday that his wife's views might suggest he also embraced efforts to overturn Roe vs. Wade."

And some reporters might have Mr. Roberts mobile number, but Serrano has Mrs. Roberts' e-mail address!!! And she answered in Jeb-like fashion (but with less detail)!!!

The New York Times' Robin Toner has pro-choicers concerned because pro-lifers aren't. LINK

Mike Bloomberg wants to know more about Roe and Roberts before deciding. LINK

The Washington Post's Smith and Becker excavate the abortion brief he wrote as deputy SG for Bush 41, with more detail than found most everywhere else, including some excellent interviews. LINK

SCOTUS: how will he rule?:
The Wall Street Journal's Jess Bravin tries to figure out if Roberts is really an originalist:

"Keith Whittington, a visiting professor at the University of Texas law school and author of books on constitutional interpretation, says, 'Like most conservatives, he's probably going to be sympathetic to originalism and use it when it seems useful. But if you read his opinions, there isn't a big trace of it.'"

"Prof. Whittington notes (sic) that often there are different ways to reach the same result. In opinions conservatives have applauded limiting congressional power under the Constitution's Commerce Clause, Chief Justice Rehnquist has often cited prior Supreme Court precedents to buttress his conclusion. 'By contrast, Thomas is very happy in the Commerce Clause cases to jump directly to original intent,' Prof. Whittington says."

"Mr. Whittington, who considers himself an originalist, says that flexibility may make Judge Roberts a more effective conservative leader on the court. A rigid approach 'makes it more difficult to cobble together five votes' for a majority, he points out. 'Not every justice has to have a strong philosophical bent to achieve what a conservative administration wants to accomplish on the court,' he says."

The Washington Post on potential recusals: LINK

The Post's Charles Lane suggests that Roberts' short tenure on the bench shows him to be rather deferential to the executive branch. LINK

The Boston Globe speaks with worried environmentalists about Roberts' record. LINK

Mark Hayward of the Manchester Union Leader reports on a New Hampshire poll illustrating that if the majority of Granite Staters (75%) could have it their way, the High Court precedent on Roe vs. Wade would stay. LINK

Roberts: opinion:

David Brooks' must-read New York Times column is built around his love for the nomination, including his pushing forward to this: how will those Democratic Senators who want (maybe) to be president vote in the end on this? LINK

The paragraph after the penultimate paragraph: "In short, I love thee, Roberts nomination. President Bush has put his opponents on the defensive. He's sidestepped the culture war circus. And most important, he's shown that character and substance matter most.

El Rushbo had Vice President Cheney on yesterday to vouch for Judge Roberts. LINK

"With respect to something like the Supreme Court, the process we went through was, obviously, to look at their own legal experiences. Judge Roberts of course, that includes presenting 39 arguments, arguing 39 cases before the Supreme Court which is – he's one of the most active appellate lawyers in the country, and, that was important. But also how he perceives the role of the court, the role of a judge in terms of the extent of which he thinks the decisions need to be made to address specific issues that are presented in a particular case versus laying out broader lines of arguments, how he views the role of stare decisis the importance of prior decisions by the court, the relationship between the Supreme Court the appellate courts -- which the appellate courts are in a position where they basically are expected to rule consistent with the decisions of the Supreme Court and the Supreme Court, they get to set precedents."

" . . .we don't get into questioning about specific cases obviously. You don't want to be – and we're not – in a position about asking him questions about how, specifically, he might rule in a particular case or how he might think about that. But you're interested in things such as legislative intent. How do you determine legislative intent?"

"How does he as it as a justice interpret statutes? Does he look just at statutory language itself? Does he look at the legislative history? Those kinds of issues are important in terms of trying to assess whether or not a justice is a -- as we layman argue – a strict constructionalist, somebody who believes the role the court is to interpret the Constitution and apply the Constitution versus somebody sees with more activist role for the court where they're in fact legislating from the bench."

Key excerpts from the Wall Street Journal's lead editorial: "He gives every sign of being a careful constitutionalist -- for example, as a believer in federalism and the Lopez line of cases. One signal on this point is his 2003 dissent in Rancho Viejo, in which he questioned a Fish & Wildlife Service order to a developer to move a fence from its own property in order to accommodate an endangered toad."

"This implies a less expansive view of the Commerce Clause than the current Supreme Court majority, and suggests he would have joined the four dissenters in Raich, the Supreme Court's recent decision to let the federal government overrule state laws on regulating medical marijuana."

"Also in the Rehnquist tradition is the deference to executive war powers that Judge Roberts showed in joining last week's unanimous D.C. Circuit ruling on Guantanamo that cleared the way for enemy combatants to be tried in military commissions."

"It's possible that the nominee might not be as willing to overturn precedent as Justices Antonin Scalia or Clarence Thomas, but he seems to be someone with deeper roots in the original Constitution than either Justice Sandra Day O'Connor or Justice Anthony Kennedy. While we won't agree with every Roberts opinion, it's impossible to see him making the law up as he goes along. And if confirmed he is thus likely to move the High Court marginally, but importantly, back toward where it was before Justice Ruth Bader Ginsburg replaced Byron White in 1993."

Howie Kurtz on the blog storm: LINK

Two other Washington Post op-eds worth reading:

E. J. Dionne Jr: LINK

John Yoo: LINK

Jeffrey Rosen on the New York Times op-ed page suggests Roberts isn't an angry guy and that liberals might like him. LINK

Roberts: bio:
True conservatives beware: the New York Times lovely bio piece on Roberts is sooooooooooooo gushingly positive. LINK

And it contains this: "The school yearbook from 1972, his junior year, shows he played Peppermint Patty in the production of 'You're A Good Man, Charlie Brown.'"

PJ Hufstutter of the Los Angeles Times headed to Roberts' hometown, Long Beach, IN. LINK

Roberts: 2000 recount:
". . .his work in Florida during that time is coming into focus, giving critics some ammunition to paint a respected jurist with an apparently unblemished legal career as an ideological partisan," writes Peter Wallsten of the Los Angeles Times. LINK

The New York Times: LINK

The Florida papers go bananas: LINK and LINK

The Plame leak investigation:
Walter Pincus and Jim VandeHei report that the paragraph in the State Department memo disclosing Valerie "Wilson"'s identity was marked "(S)" for "secret." LINK

The story has some additional incremental details, and we always like to see Luskin on the record.

Roll Call's Mark Preston writes that Democrats plan to keep Karl Rove in the news as much as they can.

2008:
The Cleveland Plain Dealer previews the DLC conference. LINK

John DiStaso writes in his Granite Status that the 2004 rivals-turned-Democratic-ticket-duo of John Kerry and John Edwards will be making an appearance in New Hampshire for state Sen. Lou D'Allesandro's birthday party. Also, Beth Roth will kindly host a Democratic gathering on July 31 where Bob Kunst will kindly campaign for Sen. Hillary Clinton. LINK

Writes Roll Call's Chris Cillizza :"A key adviser to Sen. Evan Bayh has huddled recently with several top Democratic operatives familiar with Iowa politics to discuss the dynamics of that state's presidential caucuses, the latest sign that the Indiana Senator is an all-but-announced 2008 candidate."

"Linda Moore Forbes, Bayh's deputy chief of staff, has also met briefly with Democratic Congressional Campaign Committee Chairman Rahm Emanuel (Ill.) to gauge his commitment to Sen. Hillary Rodham Clinton (N.Y.) for 2008 as well as to pick his brain about recruiting Members to back a presidential effort, according to informed sources."

Bayh is next in Iowa from Aug 2-4.

A Siena College poll shows Hillary Clinton trouncing Jeanine Pirro in a hypothetical 2006 matchup, but we are far more interested in the four percent of the electorate who are unfamiliar with Sen. Clinton. LINK

Anne Beam of the Boston Globe asks if America is ready for a Mormon in the White House? LINK

The New York Times on Pataki v. Hevesi. LINK

Bush agenda:
The New York Times and USA Today say that the President's tax reform panel agrees that the alternative minimum tax should be scrapped for individuals, but doesn't agree on how to do that in a revenue-neutral world!!!! LINK and LINK

2006:
Alexander Bolton of The Hill writes of the DSCC's nearly two-to-one advantage over the NRSC in cash on hand and Notes how much more Democratic Senators are donating to their campaign arm than their GOP colleagues. LINK

2005:
Chuck Schumer's daughter, per the New York Post, was one of many ladies for Mike (Bloomberg) yesterday. LINK

Politics:
The Los Angeles Times' Mark Z. Barabak takes a look at the creative duo behind MoveOn's advertising campaigns. LINK

House of Labor:
In advance of the AFL-CIO convention next week in Chicago, here is our analysis, based on numerous interviews with key players and labor officials.

On the surface, the nation's umbrella federation for labor unions, the AFL-CIO, heads into its annual convention next week torn asunder on the most basic of questions: how do they regrow their ranks and leverage their political power to benefit American workers? Behind-the-scenes, there is one burning question that gets to the heart of that divide: if John Sweeney is re-elected, will he -- or when will he -- step down?

More importantly, will there be private, closed-door, off-the-record meetings on Friday night, Saturday and Sunday, where dissident unions intent on forcing Sweeney to step down within six months try to reach a compromise with a group of "moderate" unions?

These dissidents include the SEIU and the Teamsters, two of the largest labor unions in the country. Sweeney, on a charm offensive of sorts, has met at least twice with leaders of those dissident unions. Those negotiations have gone nowhere. Sweeney is not a natural polarizer. As Harold Meyerson points out, his desire to reach a consensus has become a polarizing force and driven the opposition to the belief that he is the biggest obstacle in the path of reform. Still, some long-time labor watchers are mystified that the two sides cannot come to an accord. The differences in proposals are narrowing. Sweeney has moved in the direction of his opponents. But there remain substantive differences on whether organizing or politics should be a priority. And most everywhere the dissidents wrote the word "must," Sweeney and allies have put in the word "should."

The inability to resolve the debate has been complicated seriously by personality conflicts and by loyalty to the labor movement's traditional mode of operating.

A group of non-dissident unions have suggested a nine-month transition period ending at a special convention where Sweeney's successor will be chosen. Unless those unions guarantee that, say, someone of the caliber of John Wilhelm of UniteHere or Terence O'Sullivan of the Laborers, would become president, and they agree to speed up the timetable, that proposal will almost certainly be rejected. Word that Richard Trumka, one of Sweeney's top deputies, wants to be the successor, has been met with silence. He is considered too close to Sweeney's regime to fully embrace the change that these unions want.

At stake next week:

1. If Sweeney is re-elected without a successorship plan in place, the SEIU will likely leave the AFL-CIO immediately. UFCW, at one time the most prominent of "centrists" in this imbroglio, might join them. If the UFCW leaves, that makes it more likely that Unite-Here would leave, too. The Teamsters on Wednesday took a step towards disaffiliation. The Laborers would stay in. These five AFL-CIO unions and the Carpenters -- all with slightly but not insignificantly different agendas of their own -- have already formed a rival coalition called "Change To Win." It could become the basis for a separate labor federation. The union movement would be split in two. Other AFL-CIO unions are said to be thinking of joining C2W, too.

2. Labor has a resource allocation problem. There is a set pool of money. One faction wants to build the AFL-CIO's political program and use it to elect pro-labor candidates who can grease legislative paths to organizing new workers. Another faction wants to put as much money into organizing as possible and pronto. A coalition of "centrist" or "moderate" unions like the American Federation of Teachers and the Firefighters, want to reach a compromise. This set of issues has marinated in a brew of wounded egos, institutional preferences, and tangled histories. If the SEIU leaves, and if others follow, the AFL-CIO's cash crunch would deteriorate into a crisis. It's already had to layoff more than 100 workers after it voted to devote more resources to politics. Two separate political programs are less efficient than one. Two separate legislative programs are less efficient than one. Labor folks of all stripes worry that labor's core consumers -- working families -- will be hurt.

3. The AFL-CIO is the get-out-the-vote engine of the Democratic Party. If the labor movement is fractured during the run-up to 2006, Democrats could pay a price at the polls. AFSCME's Gerald McEntee heads the AFL-CIO's political program. His rich union's existence depends on a robust governments. His union is losing membership as governors take away collective bargaining rights. His personal clout is not what it was when he played kingmaker for candidate Bill Clinton. So far, the dissidents have not been able to find a solution to this massive resource allocation problem that McEntee and other politically involved labor leaders can live with. (Stern's SEIU remains the biggest contributor of money and people power. SEIU spent $65 million on the 2004 election; McEntee's AFSCME spent $42 million.)

The conference officially begins on Monday, with a 10:00 a.m ET. If no compromise is reached over the weekend, it won't be a tough call for C2W unions to get out of town. Major speakers on Monday include: AFL-CIO Pres. John Sweeney, Sen. Barack Obama, Rep. Nancy Pelosi, Former U.S. Senator John Edwards, Julian Bond, Senator Ted Kennedy, Senator Harry Reid. On Tuesday, highlights include Jesse Jackson and debate on a Sweeney-backed organizing resolution. The re-election of Sweeney occurs on Thursday from 8:00 am ET to 10:00 am ET.

1,000 union delegates will attend the conference at the Sheraton.

Other schedule items:
Also at 10:00 am ET, Sens. Joseph Lieberman (D-CT) and Charles Schumer (D-NY) participate in a roundtable discussion on bioterrorism and public health preparedness post 9/11.

The Federal Election Commission meets at 10:00 am ET.

Donald Trump joins Sen. Daniel K. Inouye (D-HI), Sen. Jeff Sessions (R-AL), and others for a 2:30 pm ET Homeland Security and Governmental Affairs Committee hearing on the renovation of UN headquarters in New York. At 10:00 am ET, the Senate Foreign Relations Committee holds a hearing on the restructuring of the UN itself.

Alan Greenspan makes an appearance before the Senate Banking, Housing, and Urban Affairs Committee at 10:00 am ET.

Sens. Rick Santorum (R-PA) and Bill Nelson (D-NE), and Reps. Frank LoBiondo (R-NJ) and Nina Lowey (D-NY) participate in a news conference at 9:30 am ET to promote the Preserving Patient Access to Inpatient Rehabilitation Hospitals Act of 2005.

Sen. James Inhofe (R-OK) and Sen. Russell Feingold (D-WI) hold a 9:00 am ET hearing on China's growing global influence.

At 1:00 pm ET, Rep. Patrick Kennedy (D-RI) holds a news briefing on bolstering citizen disaster preparedness.

The College Democrats begin a three-day national convention in Washington, DC today.

And finally, Lynne Cheney presents the James Madison Book Award to Dr. Albert Marrin, author of "Old Hickory: Andrew Jackson and the American People" in a 9:00 am ET ceremony at The Hermitage, Andrew Jackson's Tennessee home.