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Episode 8 Transcript:
ARCHIVAL NEWS FOOTAGE: Good evening… tonight President Bush speaks to the nation from the aircraft carrier USS Abraham Lincoln. It is off the coast of California, host of the commander in chief who arrived today in spectacular fashion on board a navy jet that landed in classic style on the deck…
DAVID: On May 1, 2003, George W. Bush created one of the most iconic — and some might say infamous — moments in presidential history, strutting around on the deck of an aircraft carrier in a flight suit and a codpiece, before he changed into a suit for a nationally televised speech.
ARCHIVAL NEWS FOOTAGE: And as if it were made for television, because in fact it is, here now is the President of the United States as he walks across the deck with 2,000 sailors and officers on board.
DAVID: Bush’s approval ratings were in the stratosphere. He effused confidence and cockiness — and he didn’t mince words or hedge. Less than two months after he’d ordered the US military to invade Iraq, Bush stood in front of a massive banner that said “Mission Accomplished” and told the world:
ARCHIVAL NEWS FOOTAGE (GEORGE W. BUSH): Major combat operations in Iraq have ended… in the battle of Iraq the United States and our allies have prevailed.
DAVID: That turned out to be a bit of an overstatement… the Iraq war continued for years. But Bush got his triumphant flight-deck photo op and then quickly turned to another conflict.
On the very same day as Bush’s aircraft carrier stunt, a federal court rejected the master planners’ challenge to the McCain-Feingold law. The case was another reminder of the conservative legal movement’s big problem that we mentioned in our last episode: squishy judges that were undermining the conservative agenda, including the master plan to legalize corruption.
And so, Bush left the aircraft carrier and returned to the White House to intensify the other war he’d been waging — the one to change the judiciary.
ARCHIVAL SPEECH FOOTAGE (GEORGE W. BUSH): Today, we are facing a crisis in the Senate, and therefore, a crisis in our judiciary. Highly-qualified judicial nominees are waiting years to get an up-or-down vote from the United States Senate. They wait for years while partisans search in vain for reasons to reject them. The obstructionist tactics of a small group of senators are setting a pattern that threatens judicial independence.
DAVID: Assembled in the Rose Garden were many of the foot soldiers in this ongoing war — Republican senators, Federalist Society leaders, and other players in the conservative legal movement. Since the Powell Memo era, they had been crusading for a court system that would stop rejecting their efforts to deregulate the campaign finance system and advance their broader agenda.
ARCHIVAL SPEECH FOOTAGE (GEORGE W. BUSH): Vacancies on the bench and overcrowded court dockets are causing delays for citizens seeking justice. The judicial confirmation process is broken, and it must be fixed for the good of the country.
DAVID: In this conflict, the first shots had already been fired. As you heard in the last episode, just one day before this Rose Garden rally, John Roberts — the ideological Terminator casting himself as a neutral umpire — had been confirmed to a lower court judgeship after a brutal war of attrition orchestrated by well-funded strategists inside and outside the White House.
This is part two of our double-header. In this second episode, the judicial war expands and accelerates toward the ultimate goal: taking over the Supreme Court. To get there, however, would require the master planners to spend even more money to “shock and awe” Americans into voting out Democrats who opposed Republican judicial nominees.
And then after that, the mother of all battles: the master planners mount an insurgency against Bush himself.
ARCHIVAL SPEECH FOOTAGE (GEORGE W. BUSH): There are some… My answer is: bring ‘em on.
DAVID: I’m David Sirota, and this is Master Plan.
ARCHIVAL NEWS FOOTAGE (SENATOR TOM DASCHLE): The test for the President today is not whether he shares the outrage that the workers and shareholders in these companies feel. The question is whether he is willing to take action on that outrage and support the legislation that will actually help solve the problem.
DAVID: If you were a Democrat being traumatized by the Bush administration in the early 2000s, Senate Democratic leader Tom Daschle was your fighter. I was working on Capitol Hill at the time — and let me tell you, it was a really bleak period.
There was Bush’s right-wing economic agenda, 9/11, the Afghanistan War, the anthrax attacks, the D.C. sniper, the Iraq War, the Patriot Act, the war on terror.
It really was one of those insane periods that deserves its own new verse in that Billy Joel song.
But at least there was Daschle — a calm, smart, well-spoken, affable lawmaker who was constantly on TV and on the Senate floor duking it out with Bush on everything.
Daschle fought Bush’s tax cuts for the rich…
ARCHIVAL NEWS FOOTAGE (SENATOR TOM DASCHLE): They call their tax cut robust. In fact, it’s just a bust.
DAVID: There was Tom Daschle, slamming Bush’s reluctance to hold corporate wrongdoers accountable…
ARCHIVAL NEWS FOOTAGE (SENATOR TOM DASCHLE): The most recent statements from the Administration aren’t encouraging.
DAVID: Tom Daschle even fought back against Bush’s warmongering in the aftermath of 9/11, when the Republicans were portraying Democrats as weak on terrorism.
ARCHIVAL NEWS FOOTAGE (SENATOR TOM DASCHLE): The President is quoted in the Washington Post this morning, as saying that Democratic — the Democratic controlled Senate is not interested in the security of the American people. Not interested in the security of the American people? You tell those who fought in Vietnam and World War II they are not interested in the security of the American people. That is outrageous,
DAVID: All of this made Daschle the era’s most prominent thorn in Republicans’ side. But the thing that really pissed off the master planners — the ones with their eye on the long-term prize — was that Daschle was the most visible obstruction to their decades-long project to overtake the judicial system.
ARCHIVAL NEWS FOOTAGE (SENATOR TOM DASCHLE): The very people who lament not getting a vote for those four were participants in the effort to deny 63 justices during the Clinton administration even a hearing. Don’t tell me about a vote on the Senate floor.
DAVID: Daschle was the guy who led a Senate caucus that stalled John Roberts’ lower court nomination for two years. Even after Republicans won the 2002 midterm elections, Daschle’s Senate Democratic caucus still tried to gum up the works in the Senate to stall many of Bush’s other Federalist Society judicial nominees.
So what could the master planners do about their nemesis? They could exploit the biggest chink in Daschle’s political armor..
You see, Tom Daschle wasn’t from some deep blue state teeming with voters eager for their senator to constantly do battle with the swashbuckling new Republican president. That made Daschle politically vulnerable. And so when Daschle was up for reelection in 2004, the master planners in D.C. saw their opportunity to go on a hunting trip that could change things for good.
ARCHIVAL TELEVISION AD: The greatest is calling…
DAVID: They went trophy-hunting for Tom Daschle on his home turf…
ARCHIVAL TELEVISION AD: Your best hunt is calling…
DAVID: Where exactly did they go?
ARCHIVAL TELEVISION AD: …South Dakota — hunt the greatest…
DAVID: That’s right—Daschle’s home state, South Dakota.
There in that 2004 election, the master planners knew they had a chance to do something huge: eliminate the leader of the opposition party. They knew that if they could defeat Daschle by specifically vilifying his opposition to judicial picks, it would scare many of the other Senate Democrats into submission.
It seemed like a tall order — in all of American history, it’s extremely rare for a Senate’s party leader to get defeated in their reelection bids.
But, then again, South Dakota was becoming reliably conservative. The state had previously elected liberal lion George McGovern to three Senate terms, and it still occasionally elected Democrats, but by the 2000s it was becoming a Republican stronghold. Bush had won South Dakota with 60 percent of the vote in 2000.
And in 2004, the master planners found a perfect Republican candidate willing to carry their message: A corporate lobbyist with movie-star good looks who had been a local high school basketball star and who also had been the state’s congressman — and who would now return home to run for the Senate against Daschle.
ARCHIVAL DEBATE FOOTAGE (JOHN THUNE): But the floor of the United States Senate has been turned into the killing field for a lot of good nominees. And the rules of the senate are being used in a way that’s unprecedented —
ARCHIVAL DEBATE FOOTAGE (TOM DASCHLE): That’s untrue.
ARCHIVAL DEBATE FOOTAGE (SENATOR JOHN THUNE): — in American history. It absolutely it is true and you can check the record.
DAVID: That’s South Dakota Republican Senate candidate John Thune in a 2004 debate with Daschle. He was young and slick — almost a doppleganger of the Harvey Dent/Two Face supervillain from the Dark Knight series. And his message about judges was amplified by a powerful ad campaign.
ARCHIVAL POLITICAL AD: …and when it came to confirming judicial nominees, Tom “The Blocking Machine” Daschle called upon his patented move the filibuster. Tom “The Blocking Machine” Daschle. Crushing laws. Fighting progress
DAVID: Thune all but gave away the master planners’ game in some of his specific attacks. At one point, he made clear that the conservative legal movement wasn’t just generally trying to pack the judiciary — they had a particular goal.
ARCHIVAL DEBATE FOOTAGE (JOHN THUNE): When Tom talks about approving lower court nominees, it’s the appellate court nominees being denied a vote…
DAVID: The master planners specifically wanted their Terminators like John Roberts on the lower courts in order for them to be on a trajectory to the Supreme Court, where they could change national policy.
ARCHIVAL DEBATE FOOTAGE (JOHN THUNE): The reason that Tom and his allies don’t want to allow votes on good nominees to the appellate courts is that the appellate court nominees are the people who end up being nominees to the Supreme Court…
DAVID: Daschle was the target of a massive negative ad campaign sponsored by the oligarch-funded Club for Growth, the National Rifle Association, and — of course — the Powell Memo sponsor, the good ol’ U.S. Chamber of Commerce. Meanwhile, Thune kept hammering the master planners’ message on the campaign trail.
ARCHIVAL SPEECH FOOTAGE (JOHN THUNE): This is a tough election, it is a hard-fought election, it is about the future of South Dakota, the future of this country, it is about getting the Senate functioning and moving again…and making sure we have good judges on the courts in this country and that they get an up or down vote!
DAVID: The election was a nail biter. But when Democrats across the country woke up the morning after election day 2004 and flipped on NPR…
ARCHIVAL NEWS FOOTAGE: This is Morning Edition from NPR News…
DAVID: They received the message that the master planners aimed to deliver.
ARCHIVAL NEWS FOOTAGE: Senate Democratic leader Tom Daschle has lost his job. Daschle is the first Senate leader in half a century to lose a bid for reelection. Republicans have made that defeat one of their top priorities and they threw powerful support behind the challenger John Thune.
In a public radio interview, Thune spotlighted how the issue of judges transformed his entire campaign.
ARCHIVAL RADIO INTERVIEW (JOHN THUNE): It was amazing to me when I’d make speeches early on in the campaign, I’d talk about, you know, openings on the Supreme Court, or getting these appellate nominees confirmed, and people would kind of look at you kinda like, you know “who cares?” Toward the end of the campaign you’d get up and make that statement in a speech and it’d be one of the biggest applause lines.
DAVID: By unseating the leader of the opposition party with a campaign about judges, the master planners had delivered their message to every politician in Washington: If you defy our Federalist Society judicial picks, our machine will activate voters to throw you out of office.
On the same 2004 election night that John Thune’s win in South Dakota warned everyone in Congress about the perils of blocking lower-court nominations, an even louder message about the Supreme Court was sent to the entire country at the top of the ticket.
ARCHIVAL NEWS FOOTAGE: Democratic candidate John Kerry has conceded the state of ohio and with it the presidential election. About an hour ago Senator Kerry called the White House to congratulate President Bush on his victory.
DAVID: During the presidential debates, Bush’s opponent John Kerry had tried to warn the country about the master planners’ plot to take over the courts.
ARCHIVAL SPEECH FOOTAGE (JOHN KERRY): A few years ago when he came to office, the president said — these are his words — “what we need are some good conservative judges on the courts.” And the Supreme Court of the United States is at stake in this race, ladies and gentlemen. The future of things that matter to you — in terms of civil rights, whether we’ll enforce the law… will a woman’s right to choose be protected?
DAVID: But when Bush was pressed on the issue, he stuck with the same script he’d used in 2000. When asked in a town hall debate about who he would choose for the Supreme Court, he first cracked a joke…
ARCHIVAL DEBATE FOOTAGE (GEORGE W. BUSH): I’m not telling.
DAVID: Then, Bush invoked some seemingly innocuous language that was also a dog whistle to the conservative legal movement.
ARCHIVAL DEBATE FOOTAGE (GEORGE W. BUSH): I would pick people that would be strict constructionists. We’ve got plenty of lawmakers in Washington, D.C.. Legislators make law; judges interpret the Constitution. And that’s the kind of judge I’m going to put on there. No litmus test except for how they interpret the Constitution.
DAVID: Having defused the judge issue, Bush went on to swiftboat Kerry, making the Vietnam war hero look like a treasonous French aristocrat, and Bush pulled off a tight reelection victory. And almost immediately after Bush was sworn in for his second term, Leonard Leo, the Federalist Society’s crew and the rest of the master planners went back to work on the courts.
ARCHIVAL PRESS CONFERENCE FOOTAGE: This morning we are here to launch a $3.3 million advertising and grassroots campaign to ensure that President Bush’s slate of well- qualified judges receive and up-or-down vote in the floor of the United States Senate.
DAVID: That’s the president of the ironically named Progress For America — the political group from last episode that was promoting Bush’s judicial nominees. He’s talking about their new offensive for 2005.
ARCHIVAL PRESS CONFERENCE FOOTAGE: We have PR professionals as well as grassroots operatives on the ground in 15 states, and their job is also to continue to spread the word that these nominees deserve an up-or-down vote on the floor of the United States Senate.
DAVID: Another speaker at this press conference stressed that the ads targeting both Democratic and wavering Republican senators were about larger principals – about precedents, about fairness.
ARCHIVAL PRESS CONFERENCE FOOTAGE: At the core this is a matter about a president -- any president’s nominees deserving a simple up-or-down vote when they have majority support in the chamber…
DAVID: The pressure campaign did its job: In May 2005, a group of conservative Democrats joined with a group of Republicans in a deal that limited Democrats’ power to use the filibuster against judicial nominees. In effect, the Democrats reverted to their normal, soft, flaccid, pushover form, relinquishing the last shred of their power to stop the master planners’ judicial nominees.
So if you’re a master planner in mid-2005, you’ve got control of the senate, conservative democrats are scared, you have lab-grown terminator judges ready. You’re all set for the final showdown.
And then — as if on cue — comes the bombshell that would change everything.
ARCHIVAL NEWS FOOTAGE: Justice Sandra Day O’Connor announced her retirement from the U.S. Supreme Court today. She said she wants to spend more time with her family. O’Connor was the first woman to sit on the court chosen by President Reagan in 1981…
DAVID: On July 1, 2005, Sandra Day O’Connor shocked the world.
ARCHIVAL NEWS FOOTAGE: O’Connor’s announcement created the first high court vacancy in 11 years. Senators from both parties assessed the coming confirmation battle.
DAVID: The significance of the retirement wasn’t just that it gave Bush his first chance to appoint a Supreme Court justice — it was also that the person leaving was O’Connor — one of those Republican-appointees who had become a swing vote and who sometimes defied the master planners on issues like campaign finance. With O’Connor gone, Bush would have a chance to replace that key swing vote with an ideological Terminator, and potentially reshape the entire court.
For Leonard Leo, the Federalist Society, Brett Kavanaugh and all of the master planners who had plotted their assault over laser tag at the luxury resort in Maryland — this was the Big Show, the moment they’d been waiting for.
And who did they have in mind as their nominee to replace the troublesome Justice O’Connor.
ARCHIVAL SPEECH FOOTAGE (GEORGE W. BUSH): …and so a nominee to that court must be a person of superb credentials and the highest integrity, a person who will faithfully apply the Constitution and keep our founding promise of equal justice under law.
DAVID: That’s right: the guy they had fought so hard to put on the lower court just two years before — Mr. Judicious himself.
ARCHIVAL SPEECH FOOTAGE (GEORGE W. BUSH): I have found such a person in Judge John Roberts.
DAVID: That’s right. The Terminator.
“TERMINATOR”: I’m back.
DAVID: At the announcement, Bush elided Roberts’ career as a corporate lawyer…
ARCHIVAL SPEECH FOOTAGE (GEORGE W. BUSH): Before he was a respected judge, he was known as one of the most distinguished and talented attorneys in America.
DAVID: You know, the career where he helped clients try to kill off a program to lower prescription drug prices and weaken the ADA, and helped Republicans hijack the 2000 election. Bush cast that career not as the methodical rampage of a Terminator, but instead as the highest form of venerable public service and altruism.
ARCHIVAL SPEECH FOOTAGE (GEORGE W. BUSH): John Roberts has devoted his entire professional life to the cause of justice and is widely admired for his intellect, his sound judgment and personal decency.
DAVID: You could almost see the dollar signs in the eyeballs of corporate lobbyists and CEOs when Roberts was nominated — one lawyer gushed to the Los Angeles Times that Roberts was, quote “the go-to lawyer for the business community” who “definitely is a friend of the chamber.” And the U.S. Chamber of Commerce quickly endorsed its former lawyer Roberts for the job, saying in a press release that he “brings substantial experience advocating for the nation’s leading businesses on matters ranging from the supremacy of federal law to the proper interpretation of the Americans with Disabilities Act.”
The National Association of Manufacturers also jumped into a confirmation battle for the first time in its 110-year history, and officially endorsed Roberts. In the weeks before Roberts nomination, the Wall Street Journal reported that group had been creating a new committee of executives to “vet any White House nominee based on his or her business rulings” — and that Roberts had “drawn interest in corporate circles because [he] represented companies on regulatory matters.”
Liberal groups tried to mount an opposition by spotlighting Roberts’ social conservatism. Critics also raised concerns about his relatively short tenure as a judge, which lasted barely two years, and they spotlighted his ties to Leonard Leo’s Federalist Society.
But even though that Federalist Society affiliation may have helped land Roberts on the shortlist for a judgeship in the first place, Roberts suddenly pretended he barely even knew what the Federalist Society was.
ARCHIVAL NEWS FOOTAGE: Roberts has spoken to the group several times and though his name appears in a 1997 Federalist Society directory, he says he can’t remember ever being a member or accepting any kind of role with the group. Here’s how the White House said it:
“He has participated in events and panel discussions. He’s given speeches at Federalist Society forums, but he doesn’t have any recollection of ever paying dues or joining the organization.”
DAVID: This was the old bait-and-switch that Lewis Powell had perfected 50 years prior during his Supreme Court nomination — the game where, to paraphrase one master planner, you need to be conservative enough to get nominated, but then seem liberal enough to get confirmed.
Roberts’ performance garnered praise in the media for his credentials, etiquette, and alleged moderation.
ARCHIVAL NEWS FOOTAGE:
…Politically, Jim, it looks like a ten-strike, a grand slam. In a political campaign - and, let’s be frank, this is a political campaign, you have to win every day. And I’d have to say that John Roberts has won every news cycle…
…You agree?...
…Yes, I completely agree. As Mark said, the stories were all very positive. They praised his intelligence, every quote you get whether it’s from Cass Sunstein, a liberal, or David Boies, another liberal, it’s all positive. It’s been a love fest…
DAVID: But despite that Mr. Judicious image, the master planners knew they had their conservative ideologue, and so big donors’ financial support for Roberts’ nomination surged. The dark money group Progress for America launched this nationwide TV ad campaign.
ARCHIVAL POLITICAL AD:
…Some Democrats will attack any Supreme Court nominee, but past attacks had been called a smear and dishonest…
…The President nominated George Washington for the Supreme Court. Democrats immediately attacked Washington for his environmental record of chopping down cherry trees…
DAVID: Yep, they likened Roberts to one of the founding fathers.
The summer of 2005 was already crazy as Roberts prepared for his confirmation hearings. The Iraq War was spiraling out of control into an all out civil war. The Hurricane Katrina disaster was dominating the news.
ARCHIVAL NEWS FOOTAGE (GEORGE W. BUSH): Brownie, you’re doing a heck of a job.
DAVID: The Bush administration was coming apart at the seams.
And then amid all of the insanity, things went absolutely batshit — out of the blue, another political bombshell dropped.
ARCHIVAL NEWS FOOTAGE: Chief Justice William Rehnquist died last night of thyroid cancer. He served on the court for 33 years, 19 of them as chief justice…
DAVID: This was unprecedented. Two years after O’Connor and Rehnquist had defied the master plan with their campaign finance ruling in the McCain case, they were both suddenly gone.
This was the moment the master plan had been preparing for — for more than 40 years — and things started moving faster than warp speed.
“SPACE BALLS”: Ludicrous Speed, go!
DAVID: Within a matter of weeks, Roberts was shifted to the chief justice nomination slot, where he faced tough questions but navigated them effectively — just as Lewis Powell had decades earlier. Rather than depicting himself as a Terminator built by the Federalist Society and backed by the country’s most powerful business groups, he did the opposite — he insisted he was an apolitical, non-ideological, and impartial umpire.
ARCHIVAL CONFIRMATION HEARING (JOHN ROBERTS): If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented… And I will remember that it’s my job to call balls and strikes, and not to pitch or bat.
DAVID: The spin worked — Roberts was overwhelmingly confirmed on September 29, 2005.
ARCHIVAL CONFIRMATION HEARING: On this vote the yea’s are 78, the nays are 22. The nomination of John G. Roberts Jr. of Maryland to be Chief Justice of the United States is confirmed.
DAVID: All of the Republicans voted to confirm Roberts. So did half of all Senate Democrats And the Democrats from Republican-leaning states who voted yes for Roberts likely feared that if they put up any opposition, they’d become the next Tom Daschle to be hunted down and thrown out of Congress.
So at this point, The master plan’s judicial confirmation machine seemed to be perfectly optimized at this point.
“STAR WARS”: Everything is going according to plan
DAVID: But then… something unexpected happened: George Bush threw sand into the gears. That’s after the break.
ARCHIVAL POLITICAL AD: John Roberts… overwhelmingly supported to be Chief Justice. Why did the process work? President Bush consulted with 70 senators of both parties…
DAVID: On the day Roberts was confirmed, Progress for America launched a new TV ad, lauding Democrats who supported Roberts and then pressuring them to also back anyone that Bush would pick for the second Supreme Court opening…
ARCHIVAL POLITICAL AD: Many Democrats are putting principle above politics by voting for Roberts. Urge the Senate to continue putting partisan politics aside.
DAVID: The master planners knew that Roberts was a home run. But this next pick could be the game-changer — and they assumed it would be another Federalist Society favorite.
But then their man George W. Bush — their good ole reliable ally, the guy who had championed their cause for his entire presidency — George W. Bush decided to go rogue.
Instead of just going with a Federalist Society favorite, Bush — at the urging of his wife Laura — came up with a pick that surprised everyone: he nominated an old friend from Texas.
ARCHIVAL NEWS FOOTAGE:
…President Bush today nominated White House counsel Harriet Miers…
…White House counsel Harriet Miers to the U.S. Supreme Court today. If she’s confirmed by the Senate, she’ll take the place of Justice Sandra Day O’Connor, who’s retiring…
… Miers, who hails from the president’s home state of Texas, has no prior experience as a judge but has served the president in a number of positions…
DAVID: This choice shocked everyone, especially the master planners.
ARCHIVAL NEWS FOOTAGE:
….The conservative furor over the nomination of White House counsel Harriet Miers to the Supreme Court began almost immediately…
…She sounds to me a lot like another swing vote…
DAVID: Leonard Leo of the Federalist Society, was reportedly left “literally speechless.”
But conservative media figures such as David Frum — Bush’s former speechwriter — were very vocal.
ARCHIVAL NEWS FOOTAGE: In the conservative legal community, in the federalist society, I have to tell you the response in Washington among conservative jurists is nearly unanimously ranging from disappointment to dismay.
DAVID: Out of the gate, conservative radio host Rush Limbaugh raised doubts about the nomination in an interview with V.P. Dick Cheney.
ARCHIVAL NEWS AUDIO:
…Do you know what her judicial philosophy is? And how can the public be convinced -- the president’s supporters be convinced — that it parallels the philosophy of Antonin Scalia or Clarence Thomas, as the president had said, during campaigns, was his objective?...
…Right, well I’m confident that she has a conservative judicial philosophy that you would be comfortable with, Rush…
DAVID: A Fox News report spotlighted conservatives’ fears that she was an unknown commodity — and therefore potentially another David Souter.
ARCHIVAL NEWS FOOTAGE:
… Supporters say conservatives have a right to be wary. But they also say uneasiness over Myers is simply a lack of familiarity….
…If there’s not a nominee who’s immediately well known who’s sexy who’s red meat. I think people are innately skeptical…
DAVIDl Soon, the Miers controversy boiled up out of conservative media and into mainstream news.
ARCHIVAL NEWS FOOTAGE (BILL KRISTOL): `Trust us’ is a reasonable thing for a president to say about, certainly, his personal staff appointments and even about Cabinet appointments. The courts and the Supreme Court are really a different matter.
DAVID: This was conservative columnist Bill Kristol on NPR.
ARCHIVAL NEWS FOOTAGE (BILL KRISTOL): They’re not a kind of personal appointment by the president. This is a lifetime appointment. And I think it’s somewhat inappropriate, really, to pick your personal lawyer.
DAVID: Now… it’s worth pausing here to explain how insane it is that all these conservatives were depicting Miers as merely George W. Bush’s inexperienced family friend from Texas or some squishy liberal. She wasn’t George Bush’s personal Better Call Saul who fixed up his old DUI — she was the White House counsel, which is the chief legal adviser for the office of the president.
She also was a longtime corporate shark with real conservative credentials — she ran a major corporate law firm where she had defended behemoths like Microsoft and Disney, and she had played a big role in the conservative movement’s political campaign to make it harder to file lawsuits against corporations.
But here’s the thing: Miers did not have a clear-cut Federalist Society pedigree — at least not like other Bush officials. At this point, the Federalist Society has become so ubiquitous and powerful that reporters started asking White House press secretary Scott McClellan about Miers and her connection to the group.
ARCHIVAL WHITE HOUSE PRESS CONFERENCE: Conservatives are taking issue with some testimony that Harriet Miers gave in a 1989 Dallas case, in which she said that she would not belong to a politically-charged organization like the Federalist Society.
DAVID: McClellan had just finished up the Roberts confirmation battle downplaying Roberts relationship with the Federalist Society. But with Miers, McClellan did the opposite, touting her affinity for the group.
ARCHIVAL WHITE HOUSE PRESS CONFERENCE: Harriet Miers has been supportive of the Federalist Society, including participating in events, and giving a speech to the Society last spring. And she, like the rest of the White House, knows that the Federalist Society has been a great ally on many important issues, particularly when it comes to the federal judiciary.
DAVID: For Leonard Leo and the master planners, it all presented a big dilemma. Should they accept on faith that Miers was a conservative and defer to Bush? Or should they do the then-unthinkable: fight back against Miers and wage a very public war with a Republican president who had been their champion?
The latter would be highly risky — the master plan could fight and lose and look weak and irrelevant… but if the tactic worked, it would send a message to all future presidents that they defy the master plan at their peril.
And so they chose war — and the starting gun was fired by one of those recurring characters in the master plan cinematic universe: Nixon’s Watergate hatchetman, Ford’s duplicitous lawyer, Reagan’s failed nominee — the one, the only… Robert Bork.
ARCHIVAL CONGRESSIONAL HEARING:
…Judge Bork, you’ve called the Miers nomination, quote, “a disaster on every level.” What do you mean by that?...
…Well, I mean that she is, I don’t think, the person you would pick for the Supreme Court, but more importantly, I think this deals a blow to the conservative legal movement that’s been building up for 20 years and now has a great many people who are qualified for the court but all of whom have been passed over…
DAVID: Inside the White House, Brett Kavanaugh noted in an email that Miers’ nomination “will cause major reverberations among conservatives,” and he called it a disaster.
And this is when the master planners’ dark-money turned on Harriet Miers.
As she prepared for Senate hearings, TV ads started running.
ARCHIVAL POLITICAL AD: Even the best leaders make mistakes. Conservatives support president Bush. But not supreme court nominee Harriet Miers…
DAVID: One reporter referred to Miers as “Souter in a skirt” — really? The furious reaction from the Federalist Society crowd and the right-wing noise machine became too much to bear for Republican Senators, who knew well that their own voters back home had been trained to focus on the judge issue.
ARCHIVAL NEWS FOOTAGE: According to sources on Capitol Hill and in the White House yesterday morning, top Republican senators Bill Frist and Mitch McConnell came to the White House and gently told the President that Meyers’ nomination was in serious trouble.
DAVID: In the end Bush’s aides knew there was no way out.
ARCHIVAL NEWS FOOTAGE: Good evening, everyone. The White House says she was not pushed, but in the end it was a perfect storm within the President’s own party that led Harriet Miers to withdraw her nomination to the Supreme Court.
DAVID: She was not pushed. She was Borked — Borked by the conservative legal movement and its advocacy groups.
ARCHIVAL NEWS FOOTAGE:
…The Republican chairman of the judiciary committee said the groups drowned her and the president out…
…There was a decisive imbalance in the public forum with the case for Ms. Miers not heard because of the heavy decibel level against her….
DAVID: This was an epic victory for the master plan, showcasing just how much power they had amassed since Lewis Powell’s memo all those years ago. The Los Angeles Times captured it perfectly with the headline: “Right Stares Down White House, and Wins.”
The article reported that “by leading the charge to sink Harriet Miers’ Supreme Court nomination, the conservative wing of the GOP declared its independence from the White House and asserted its claim to steer the party further to the right, even beyond the Bush era.”
ARCHIVAL NEWS FOOTAGE: Republican senators who publicly criticized Miers believe the President has now gotten the message that his supporters expect him to pick an established conservative judge.
At this point, Bush needed a nominee who would be broadly acceptable to his conservative base — and the Republican-controlled Senate.
ARCHIVAL NEWS FOOTAGE (RUSH LIMBAUGH): It’s time for the President to start picking fights with his real enemies, the Democrats and the left in this country and that’s what this opportunity affords.
DAVID: The right was demanding a Supreme Court nominee with proven conservative bonafides.
ARCHIVAL NEWS FOOTAGE: It’s a wide open list right now for possibilities. Michael Ludig, from the Federal Court of Appeals in Virginia, Samuel Alito from New Jersey, Karen Williams out of South Carolina, and finally Priscilla Owen of Texas.
DAVID: One of those names immediately rose to the top.
ARCHIVAL NEWS FOOTAGE: Good morning. I’m pleased to announce my nomination of Judge Samuel A. Alito, Jr. as associate justice of the Supreme Court of the United States. Judge Alito is one of the most accomplished and respected judges in America.
DAVID: Alito was a Terminator like Roberts, but without the Roberts’ nice-guy skin camouflaging his true nature. Alito was just a metallic skeleton and red eyes glowing with ideology.
Alito was a kid inspired by William F. Buckley, who grew into a Goldwater and Reagan Republican — and a proud, card-carrying member of the Federalist Society.
Master planners money immediately poured in for Alito ads. Progress for America launched an aggressive campaign for his confirmation, spending $400,000 on a 9-day advertising blitz in states with potential swing-vote senators.
ARCHIVAL POLITICAL AD:
…Every day desperate liberals make up a steady drip of attacks against judge Samuel Alito want the truth?...
…Respected Supreme Court analyst Stuart Taylor of the nonpartisan National Journal “Alito,” quote, “is widely admired by liberals, moderates and conservatives who know him well as fair minded, committed to apolitical judging and wedded to no ideological agenda other than restraint and the exercise of judicial power.”...
… Confirm judge Samuel Alito.…
DAVID: Yeah, Sam Alito, Mr. Apolitical, Non-Ideological. Mr. Dispassionate, has no political beliefs whatsoever. What a load of crap.
According to the internal emails we reviewed, Alito’s confirmation involved a two-part strategy, crafted in part by old B.K. – White House staffer Brett Kavanaugh. First, Alito tried to keep quiet about incendiary issues like abortion.
ARCHIVAL INTERVIEW FOOTAGE (SAMUEL ALITO): I certainly agree that Roe and Casey and all of the other decisions in this line are precedents of the Supreme Court, and they are entitled to respect under the doctrine of stare decisis to the extent that some of the earlier decisions have been modified, and obviously, the most recent ones are the relevant provisions of the Supreme Court.
DAVID: At the same time, the White House’s allies lashed out at Alito’s critics.
ARCHIVAL NEWS FOOTAGE: But the thinking is that if they can put pressure on these senators at home and get a couple of moderates out front. It will give cover to the Republican moderates and make it just mathematically impossible for democrats to effectively filibuster this nomination.
DAVID: For their part, Alito’s boosters tried to build on their Roberts confirmation success by once again painting another Terminator as just a friendly baseball umpire.
ARCHIVAL CONFIRMATION HEARING (SENATOR CHUCK GRASSLEY): Like Chief Justice Roberts, it appears that Judge Alito tries to act like an umpire, calling the balls and strikes, rather than advocating a particular outcome.
ARCHIVAL NEWS FOOTAGE (ANTHONY SCIRICA): Much like a baseball umpire. A judge calls balls and strikes. But many pitchers are on the corners. And then the calls are difficult. And these are the cases where a judge earns his or her keep. Judge Alito has more than earned his keep. He is a thoughtful, careful, principled judge. He is intellectually honest. He is fair. He is ethical.
DAVID: Democrats tried to pick apart Alito’s past, including his membership in a conservative Princeton Alumni Group that had criticized the school for reducing legacy admissions while increasing admissions of racial minorities… but Alito played dumb.
ARCHIVAL CONFIRMATION HEARING (SENATOR TED KENNEDY): As indicated in your ‘85 job application, that you’re a member of the Federalist Society and a member of the Concerned Alumni of Princeton University, a conservative alumni group. And you said yesterday that you had no specific recollection of the organization…
ARCHIVAL CONFIRMATION HEARING (SAMUEL ALITO): I have no specific recollection of joining the organization.
DAVID: Ultimately, the confirmation hearings didn’t seem to halt the momentum. With Republicans controlling the Senate, Alito’s confirmation felt inevitable.
Now, you might be wondering — where the hell was the real Democratic resistance? The kind that had used the filibuster and other efforts to gum up the works — the tactics that had stalled Bush’s lower court nominees? The last gasp of that came in early 2006 when Senator John Kerry — the party’s defeated 2004 presidential nominee — made a last-minute call to filibuster Alito’s nomination.
ARCHIVAL CONGRESSIONAL SPEECH (JOHN KERRY): I know it’s an uphill battle, I’ve heard my colleagues, many of them… I hear the arguments, you know “reserve your gunpowder for the future.”
Well what is the future? This is the choice for the court now. And I reject the notions that there oughta somehow be some political calculus about the future.
DAVID: But while Kerry’s warnings sound amazingly prescient today… he was not exactly a perfect messenger. Republicans had spent the entire 2004 election painting him a wealthy elitist. And to be fair, he did sound a bit like Thurston Howell III from Gilligan’s Island.
“GILLIGAN’S ISLAND”: But you haven’t got the knack of being idly rich. You should do like me. Snooze and dream. Dream and snooze.
DAVID: Republicans invoked precisely that elitist caricature to attack Kerry again — White House spokesman Scott McCllelan noted that Kerry had originally phoned in his Alito filibuster demand from a trip hanging out at a glitzy billionaire conference in Europe.
ARCHIVAL WHITE HOUSE PRESS CONFERENCE: It was a pretty historic day. This was the first time ever that a Senator has called for a filibuster from the slopes of Davos, Switzerland. I think even for a Senator, it takes some pretty serious yodeling to call for a filibuster from a five-star ski resort in the Swiss Alps.
DAVID: To be sure, many of Kerry’s fellow Democrats agreed that Alito would push the Supreme Court further to the right. But they weren’t eager to follow his lead. The bitter filibuster fights over lower court nominees had left them divided and cautious.
Meanwhile, several Democratic senators facing re-election in Republican-leaning states didn’t want to take the political risk. Two had already pledged to vote for Alito and others firmly opposed the filibuster. Once again, these red-state Democratic senators remembered what happened to Tom Daschle.
In fact, Kavanaugh joked in an email to a Bush colleague that when South Dakota’s remaining Democratic Senator Tim Johnson announced his support for Alito, the lawmaker was refusing to be “Daschled.”
Yes, the conservative legal movement had gone from complaining about being “Borked” to now proudly bragging about making sure Democrats get “Daschled.”
In the end, only 24 joined Kerry’s effort to filibuster Alito, and Alito was confirmed by a comfortable margin in the final vote.
ARCHIVAL CONFIRMATION HEARING: On this vote the ayes are 58, the nays are 42, the president’s nomination of Samuel A Alito of New Jersey to be an associate justice of the Supreme Court is confirmed.
DAVID: Alito’s confirmation in January of 2006 was a watershed moment for the master plan.
After decades of building the judicial machine that Lewis Powell envisioned in his memo, It had taken just seven months to switch out Rehnquist and O’Connor for Roberts and Alito — positioning the court to alter the country’s campaign finance and anti-corruption laws. That’s right: seven months to flip the court that had just upheld McCain-Feingold law.
Several months after Sam Alito’s confirmation, the Federalist Society held a gala to honor the 20-year anniversary of the Supreme Court appointment of ultra conservative Antonin Scalia. No longer was this the age of judges like John Roberts pretending to not know the Federalist Society. This was a coming out party emceed by Leonard Leo, who hammed it up.
ARCHIVAL GALA AUDIO (LEONARD LEO): Good evening, ladies and gentlemen. It is a pleasure to stand before 1,500 of the most little known and elusive of that secret society or conspiracy we call the Federalist Society. Thanks so very much for your support and involvement. You may pick up your subpoenas on the way out.
DAVID: The installation of the two Terminators — Roberts and Alito — bolstered the conservative legal movement. Within a week of Alito’s confirmation, master planner B.K. — Brett Kavanaugh… the legal operative embedded inside the White House…he was nominated for a judgeship on the lower D.C. court that Roberts had just left.
Kavanaugh had been nominated a few years earlier, but had been blocked during Democrats’ last-stand against Bush’s nominees. At the time, Liberal watchdog groups had labeled him “an ideological warrior for the extreme right wing” and pointed out that Kavanaugh’s legal career has been “almost entirely devoted to right-wing partisan and ideological pursuits that raise deeply troubling questions.” But because Senate Democrats were under threat of being Daschled, there was no stand against this new Terminator.
After the Senate confirmed him by a comfortable margin, federal Judge Kavanaugh would end up on his own glidepath to the Supreme Court.
ARCHIVAL CONFIRMATION HEARING (BRETT KAVANAUGH): Yeah, we drank beers. Sometimes, probably had too many beers.
DAVID: But here in 2006, Roberts and Alito’s hostile takeover of the judiciary didn’t yet seem to haunt liberals’ dreams, because from their perspective, things seemed to be looking up.
For Democrats, these were the heady days of 2006 — 9/11, the Iraq war, Hurricane Katrina and all the other horrors of the Bush years seemed to have finally caught up with the Republicans. Bush’s approval ratings were plummeting, and Republicans were on the verge of getting destroyed in the midterm elections amid a massive scandal involving super lobbyist Jack Abramoff. What’s more, a newly elected Democratic senator seemed to see a huge political opportunity from rekindling the fight against corruption.
ARCHIVAL SPEECH FOOTAGE (BARACK OBAMA): The scandals we’ve seen under the current White House and Congress — both legal and illegal — they are far worse than most of us could have imagined. But what’s truly offensive about these scandals is that they don’t just lead to morally offensive conduct on the part of politicians; they lead to morally offensive legislation that hurts hardworking Americans.
DAVID: Even when it came to the Supreme Court itself, sure — the master plan had just bought two seats on the court in 2005 and early 2006. But right then, lots of liberals were self-soothing with the knowledge that the court seemed to still have one swing vote left to protect the republic:
JAN CRAWFORD: You have to look to the man in the middle, Anthony Kennedy. Kennedy is more conservative than Justice O’connor was. But not on all cases. He is much more willing to go along with the liberal side of the view…
DAVID: But in a storefront law office far away from the corridors of power, a small town attorney received a phone call that was about to change everything.
JAMES BOPP: So I’m sitting in my office, and I get a phone call from David Bossie, and he said, ‘I’m working on a movie called ‘Hillary The Movie.’
Alright? And this is now in two thousand, early 2007 — “I’m working on a movie and she’s running for president.”
DAVID: That’s next time on Master Plan.