November 20, 2003,
After a week of intense and highly public maneuvering over the president's judicial nominees, Republicans fear they are losing the inside-the-Beltway spin battle over the issue but believe they are making measurable progress in the outside-the-Beltway war to make Democrats pay a political price for blocking a slate of judges.
On the one hand, Republicans are increasingly frustrated by the lack of press interest in a series of leaked memos which show Democrats working in close coordination and sometimes appearing to take orders from left-wing interest groups that oppose the president's nominees.
On the other hand, internal Republican polling shows what appears to be an increasingly negative public attitude toward Democratic filibusters of Bush nominees, suggesting that the obstruction might hurt some Democratic Senate candidates in next year's elections.
First, the polling. Since the beginning of this year, the Senate Republican leadership has commissioned a monthly poll to try to learn whether the public is aware of what GOP senators are doing on a number of key issues. The purpose of the poll is to give senators something scientific to supplement the anecdotal "people are talking about this" stories they hear when visiting their home states.
The most recent such poll was conducted after last week's Senate marathon debate over judges. Pollster David Winston asked 1,000 registered voters a simple, open-ended question: Have you seen, heard, or read anything about what Republicans in the Senate are doing? Of those who had, Winston then asked whether what respondents had heard had made them more favorable or less favorable to Republican Senate candidates. Winston also asked the same questions about Democrats.
In the latest poll, Senate Republicans were particularly interested in the responses of independent voters. "You know the judges issue works well for our base, and it works well for their base," says Winston. "The question here was for independents and those people who aren't part of either base. How would they react?"
What Winston found was that a significant number of independent voters are aware of the judicial fight it was the number one thing many had heard of in the preceding week. And those independents who were aware of the battle came away with a significantly more negative view of Democrats than of Republicans.
When independents were asked whether the judicial fight had given them a more or less favorable view of Republican candidates, 45 percent said more favorable, while 41 percent said less favorable. But when asked about Democratic candidates, 40 percent said the judicial fight had given them a more favorable view, while 55 percent said less favorable.
The results confirmed GOP suspicions that the judges issue is not so much a winner for Republicans as it is a loser for Democrats. "Democrats worsened their standing with independents as a result of the debate," Winston says. "The Democratic base may have gotten fired up, but their standing with independents got worse."
What is even more-welcome news to Republicans is the idea that independent voters see the battle over judges as part of a pattern of Democratic obstruction of GOP initiatives. "One of the outcomes of the 2002 election was the perception that the Senate had blocked homeland security and prescription drugs," Winston says. "That was a big negative for Democrats. This [the judicial nominations fight] feeds into a pre-existing image from the 2002 election."
The poll results have encouraged Senate Republicans. "The positive thing was instead of it just being the base that cares about judges, there are a lot of other people who care about judges," says one. "We need to do everything we can to make sure that the people who aren't the base know what is going on."
The other major news this week, the leaked Democratic memos, has been frustrating for Republicans. First reported by the Wall Street Journal editorial page, the memos have stirred an uproar in conservative circles but have received virtually no attention anywhere else.
The memos, dating from 2001 until April 2003, are mostly from Democratic staffers to Senators Richard Durbin and Edward Kennedy. They show how Democrats granted the demands of groups like People for the American Way, the Alliance for Justice, NARAL, and the Leadership Conference on Civil Rights in the fight over Bush judges. For example, in one memo to Durbin, dated November 7, 2001, a staffer described a meeting with the groups in which they "identified Miguel Estrada (D.C. Circuit) as especially dangerous, because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment. They [the groups] want to hold Estrada off as long as possible." Democrats, then in control of the Senate, did not grant Estrada a vote in the Judiciary Committee. When Republicans won the Senate and voted Estrada out of committee, Democrats, following the groups' wishes, filibustered the nomination. Estrada eventually withdrew his name from consideration.
Another memo, to Kennedy, dated April 17, 2002, details how the NAACP Legal Defense Fund asked that Democrats on the Judiciary Committee delay the confirmation of Bush nominee Julia Scott Gibbons to the Sixth Circuit Court of Appeals. Democrats had no objections to Gibbons, but the NAACP Legal Defense Fund did not want her to vote on the University of Michigan affirmative action case then before the circuit court. The Democratic staffers who wrote the memo conceded that they were "a little concerned about the propriety of scheduling hearings based on the resolution of a particular case." They also admitted that "the 6th Circuit is in dire need of additional judges." Still, given the NAACP Legal Defense Fund's demand, they recommended "that Gibbons be scheduled for a later hearing." Gibbons was not confirmed until after the University of Michigan case was decided.
Taken together, the memos present a devastating picture of Democrats working virtually under the control of the interest groups. Yet the documents have received little coverage outside the conservative press, and much of that has focused not on the substance of the memos but on how they became public.
Democrats have not disavowed any of the material in the memos but have instead claimed that the documents were stolen by Republicans from Democratic computer files. Now, Democratic leaders are demanding an investigation of alleged Republican misconduct. Although there is no evidence to support the Democrats' claim, the Washington Post's only story on the memo matter so far has been a brief wire-service account headlined "Apparent Theft of Democratic Memos Probed." The New York Times, along with the broadcast networks, have ignored the story altogether.
The success of the Democrats' "they stole it" strategy has frustrated some Republicans. "It allows the Democrats to change the subject from their inappropriate-at-best and unethical-at-worst behavior," says one. "They've never denied this stuff."
Still, as maddening as it is to some in the GOP, the fight over the memos appears to be a relatively small matter compared to the apparently increasing public awareness of the Democratic filibusters of Bush nominees. While most voters will not pay attention to the details of the memos, they appear to be coming to the conclusion that Democrats are blocking the president's choices for the federal bench, and they are connecting that with other Democratic attempts to obstruct the Bush agenda. That's the big picture, and it is one fraught with danger for Democrats and the liberal groups that support them.