This is a rush transcript from "The Journal Editorial Report," April 21, 2007.
PAUL GIGOT, HOST: This week on the "Journal Editorial Report," Justice Anthony Kennedy joins the majority in upholding the ban on partial- birth abortion. Is this new conservative Supreme Court?
Plus, attorney general Gonzales takes a beating on Capitol Hill for his role in the firing of 8 U.S. attorneys.
In the wake of the Virginia shootings a fresh look at the way universities can and should deal with students who are mentally ill.
But first, these headlines.
GIGOT: Welcome to the "Journal Editorial Report." I'm Paul Gigot.
The Supreme Court handed abortion foes a partial victory Wednesday, upholding a ban on a specific late-term procedure. The 5-4 decision, written by Anthony Kennedy said, the partial-birth abortion ban Act that Congress passed and President Bush signed into law in 2003, does not impose an undue burden on a woman right to abortion.
Jan Crawford Greenburg is the author of the new book, "Supreme Conflict: the inside story for the struggle for control of the United States Supreme court." She joins me from Washington.
Jan Crawford Greenburg, welcome to the program.
JAN CRAWFORD GREENBURG, AUTHOR OF "SUPREME CONFLICT": Thanks, Paul.
GIGOT: The decision this week was argued on fairly narrow grounds. What does it tell but the Supreme Court's direction on abortion?
GREENBURG: Well I mean this is a new court and the decision really clearly showed us that — just keep in mind it was just seven years ago a very different Supreme Court struck down similar state laws that ban partial-birth abortions. But that was when justice Sandra Day O'Connor was on the court. John Roberts, Sam Alito were yet to be on nominated. So I think this decision shows this new Supreme Court is going to turn more to the right and go in a conservative direction.
GIGOT: It was interesting that this Supreme Court in this decision this week didn't overturn the 2000 ruling. Instead really just outlawing a specific abortion practice. Did that — did that surprise you that they didn't overthrow the earlier decision?
GREENBURG: No, it didn't. And they didn't have to. Some thought that would be the principled way to go. But the reason that this decision is such a blockbuster, such a significant ruling, is the language in the opinion.
Justice Kennedy writing very strongly for the court, emphasizing that states have a role in the abortion debate. States can make moral choices that the court, for so long, had ignored those choices.
That's all new. We have never seen that from the Supreme Court. There are five justices now on the Supreme Court that think states should have a bigger role in the abortion debate. And I think that means we will see more restrictions on abortion, more regulations on abortion.
This is not a Supreme Court that's going to overturn Roe vs. Wade. Justice Kennedy will not overturn that landmark decision. But I think this decision does show — Wednesday's decision does show this is a court that will allow more restrictions and regulations on abortion.
And you know, that's not so far from where a lot of people in this country are.
GIGOT: What about Chief Justice Roberts and Samuel Alito? They didn't write concurring opinions or dissents in this case. Is there any indication where they would come out, particularly when it comes to overturning precedents because some of the critics of this ruling on the left, and some of the supporters on the right, said, "Boy, it is only a matter of time before Roe v. Wade gets overturned.
Any hint about Roberts and Alito in this opinion?
GREENBURG: No. And again, I think that was wise on Alito and Roberts' part because they didn't have to do that. They didn't have to their views. That wasn't as the table in this case.
For everyone who says it is just a matter of time before the Supreme Court overturns Roe vs. Wade, I think there is no evidence of that. And I think it is flatly untrue.
But I do believe this decision is significant in another way. It is the beginning of the Roberts court. John Roberts needed Anthony Kennedy's vote in this case if he is going to try to restrain the court, have that court take a more narrow role in society, things we have heard our new chief justice talk a lot about.
I think Wednesday's decision is a way of pulling the court back. And I think you're going to see other decisions this term, there is a big rape case, again, that's going to see the court going in a more conservative direction.
GIGOT: I think I have heard you quoted somewhere saying Justice John Paul Stevens, one of the liberal justices and is 86 years. He's not about to retire because he is competing for the judicial soul of Justice Anthony Kennedy. How is he doing on the left? Because, of course, he is competing with Chief Justice Roberts.
GREENBURG: He got Justice Kennedy's vote in a big case this term, in that greenhouse gas case involving the EPA and whether EPA had to regulate. But this decision this week is more significant.
I think the Chief Justice was smart to assign it to Justice Kennedy to write for the majority. The language in that decision clearly grated on the liberals who were in dissent.
Justice Ginsburg — it was almost like fingernails on a chalk board — some many of the things Justice Kennedy said.
Roberts can say, look do we really want to fight over Justice Kennedy's vote because I am going to win. I am going to win on most the cases. More often than not, he's going to be with the conservatives. And so that's the way he can say, we just need to step back. Let's do things more narrowly, in a more restrained way.
That's a different approach for this Supreme Court. And it's an approach that will make the court go in a more conservative direction, have a more restrained role. And that's the role our new chief justice thinks the court should take.
GIGOT: It's fascinating because what you are talking about here is some of the internal political skills, people skills, if you will, of Chief Justice John Roberts, which a lot of people said was one of the reasons President Bush appointed him to the court, because he has that kind of personality that might be able to draw over Justice Kennedy.
So you are saying that that is now playing out in the court?
GREENBURG: Absolutely. And President Bush got that. When he nominated John Roberts to be chief justice, he realized Roberts was a collegial, congenital guy. President Bush got the whole group dynamics thing of the Supreme Court.
There are 9 people up there. And you have to build coalitions and bring people together.
Our old chief justice, the late William Rehnquist, didn't really try to do that, that much. And he didn't have as much success on some of those big cases that people care so much about.
Our new chief justice is savvy. He's smart. He really thinks 10-20 years down the road. So I think what we are start to see now — and all of the people are saying this week's decision in the partial birth case shows it is the Kennedy court.
I think that's wrong. I think it shows, in fact, it's the beginning of the Roberts court. because it's going to give Roberts a way to pull that court back from some of these big social disputes, bring Kennedy over to the side of the conservatives. And that's why I think also is significant that Roberts didn't write separately.
GIGOT: All right. Jan Crawford Greenburg, thank you for that fascinating look at the court.
GREENBURG: Thanks, Paul.
GIGOT: When we come back, Attorney General Alberto Gonzales faces a long awaited grilling on Capitol Hill over his role in the firing of 8 U.S. attorneys. Was it a job-saving performance?
Plus, the fall out over the Virginia Tech shootings and legal barriers faced by universities when it comes to dealing with mentally ill students.
GIGOT: Welcome back. Hyped in the media as his make or break moment, Alberto Gonzales headed to Capitol Hill Thursday to explain his role in the firing of 8 U.S. attorneys last year. How did he do?
Joining the panel this week, "Wall Street Journal" columnist and deputy editor Dan Henninger, deputy taste page editor Naomi Shaffer-Riley, and in Washington, columnist Kim Strassel.
Kim, from a distance up here it looked like the attorney general took a beating. Did he help or hurt himself?
KIM STRASSEL, WSJ COLUMNIST: This was always going to be ugly. They had been working to go get him in and do this testimony for weeks. They waited after spring break to haul him in.
I think in a best case scenario, he would have got through this without anyone calling for resignation. That did not actually happen yesterday. You had Senator Tom Coburn do that.
The real problem for the attorney general here is you had a number of Republicans who have seen this and they have decided that they will get puffed up on their oversight responsibilities. And they're giving Democrat cover for what has been a pseudo scandal.
That was hard for him yesterday because he facing a shellacking from both sides.
GIGOT: What's behind, Dan, this Republican frustration with Gonzales? Because I think, other than Orrin Hatch, the Republicans were as critical, as critical as Democrats.
DAN HENNINGER, WSJ COLUMNIST AND DEPUTY EDITOR: I think the Republican frustration is mainly a source of frustration with his competence. He has not handled himself well. The firings themselves were not executed in any sort of administratively reasonable way.
I think the responsibility for this ultimately falls back on the president for appointing essentially a friend, who was operating above his pay grade at the Justice Department.
This is an extremely difficult sensitive job. Attorneys general have gotten into trouble before. Janet Reno was not the best one we ever had. You need the highest caliber legal mind running a development like that and someone with some administrative ability, and Alberto Gonzales didn't seem to measure up.
STRASSEL: But — sorry — the thing about this though, Paul and Dan, is this is not necessarily clear what Republicans are thinking is going to get better. I mean at this point, if you go ahead and get Alberto Gonzales to resign — and this is what Democrats want — the Justice Department, the Bush Justice Department is finished. Because by the time you put someone knew up they try to get through some horrible hearing, there's not going to be time left to accomplish anything.
GIGOT: But they don't think he has credibility — Gonzales has any credibility left, Kim. So they are thinking, look, it can't get any worse, because if you let Gonzales stay there, he will just twist in the wind and the scandal will continue.
Are you saying, if he does go, this scandal will go on and on?
STRASSEL: Of course. Because they are not actually trying to get Alberto Gonzales. They want someone higher. They want Karl Rove. That's why this focus and getting White House aid to come in and testify. That's why there's been a focus on subpoenas.
You know, this is not going to go away by getting Gonzales' the scalp.
NAOMI SHAFFER-RILEY, WSJ DEPUTY TASTE PAGE EDITOR: What is amazing is they are this far into the second term of the administration and there is no polish here. You would see more eloquence coming out of a criminal defendant in a Brooklyn court. It's just — watching him yesterday fumble through this testimony that the Bush administration cannot get a handle on the P.R. image they are putting out there, this far into the administration, is shameful.
And they could put up somebody else, but there is no evidence that they would be anymore competent at testifying in front of this room of sharp lawyers.
GIGOT: What's fascinating here to me is this is a scandal, as Kim suggested, without a real scandal. There is no real hint of corruption. There was political motivation, but, hey, these U.S. attorneys are political actors. And the president has a right to appoint them. And they can't even defend themselves on something that basic.
HENNINGER: Let's not let the Democrats off the hook. What goes around comes around. Senator Leahy said yesterday no Justice Department should be acquiescent to the White House.
That brings to mind President Bill Clinton's Justice Department. And he is setting Hillary Clinton up for the same sort of attack from Republicans if she wins the presidency and tries to do the same to her Justice Department.
GIGOT: It is preposterous. The attorney general is not answerable to the White House, like Bobby Kennedy and Jack Kennedy. The attorney general has to be one of your most intimate allies. Otherwise, you can't run an effective administration.
SHAFFER-RILEY: If only Alberto Gonzales could have said that yesterday it would have been fine.
STRASSEL: There is something else going on here, though, about executive privilege. And this gets to Dan's point. Democrats should be careful. They are suggesting that presidents do not have the ability to appoint people, to fire people, to enforce their will through their Justice Department.
If they take the White House next year I am sure they won't be feeling that way.
GIGOT: All right, Kim, last word.
When we come back, the warning signs were there, but would it have been illegal for administrators at Virginia Tech to remove Cho Seung-Hui from campus? A look at what colleges can and can't do when it comes to dealing with students who are mentally ill.
GIGOT: Welcome back. Virginia Tech's administration faces intense scrutiny over whether it failed to heed warning signs about student Seung- Hui Cho months before he shot 32 people to death there on Monday.
But federal privacy and anti-discrimination laws restrict how universities can deal with students who are mentally ill, effectively leaving college administrators to fight for safe campuses with one hand tied behind their back. Naomi, you have argued there is this is a real dilemma for college administrators. How so?
SHAFFER-RILEY: They are in this terrible bind. On one hand, you have parents who expect them to keep their students very, very safe. And you have a generation of parents now who are willing to sue, of course, at the drop of a hat. And you have a generation of students who have been brought up to think that college is a place where they can exercise as much freedom as you want.
From a legal perspective, what's happened is you have students, who, on one hand, can sue if kicked out of school, as one student at George Washington did on the basis of the Americans with Disabilities Act, saying they were discriminating against people who were mentally ill.
And on the other hand, you have parents who may well file wrongful death suits to Virginia Tech.
MIT parents and Harvard parents have done this in the past when their student has been a victim either in the case of Harvard, of a murder, or in the case of MIT, of a suicide. And they have demanded millions of dollars from the school for not keeping kids safe.
GIGOT: I have to say I have never seen you so sympathetic to college administrators.
SHAFFER-RILEY: I am generally not. I have to say, in part, a lot of it is the culture has brought it on themselves. A lot of these administrators are responsible for saying, oh, we are no longer acting en loco parentis. And, of course, our colleges are filled with lots of mature young adults who can handle themselves.
But when it comes to legal liability, I'm not sure that they saying the same thing.
HENNINGER: Let's talk about the culture. We live in a highly therapeutic society now. and college counselors will tell you that they have a lot students coming into the colleges who bring problems with them, whom have been taking psychotropic drugs for one problem or another, had extreme conditions.
And somehow the — they display extreme behavior. Students often get depressed in college these days. Their biggest concern is suicides, not people attacking one another, but students attacking themselves. And they have to make some judgment a long the way of just how serious a student's problem is.
GIGOT: Particularly in college, the college years are years where mental illness often appears as you make the break from the home.
In the case of Cho, could the school have forced him into a mental treatment program? Do we know that?
SHAFFER-RILEY: The school could have kicked him out or the school could is suspended him. There is some sense that maybe they could have been sued. But in this case I am not sure that would have happened. His parents were well aware of his mental illness. And it seems unlikely in this case the family would have tried to press suit against the school for that.
GIGOT: But it could not have forced on him his medication under Virginia statute, as I understand it. Is that right?
SHAFFER-RILEY: Absolutely. That's correct.
STRASSEL: You know?
GIGOT: Kim, yes?
STRASSEL: Naomi just brought up another thing too, which, in this case, it looks as those Cho's parents were aware of this. but one of the other problems that universities have is that, even when they are aware of a problem, quite aside from any actions they can take themselves about keeping a student there, putting them in a mental health facility, making them take their medication, they can't even go, because of federal privacy and anti-discrimination laws, they can't go to the parents and involve the parents in this.
You are not allowed to tell a parent that a child has a problem unless the child gives a waiver first. You're not allowed to release a medical record to a parent unless you get a waiver. And this is a result that has left universities hanging there, alone, to deal with some of these problems.
GIGOT: A few years back, New York State had a problem with a mentally ill person who killed someone on the subway. And the New York legislature passed something called Kendra's Laws, which allows the forced medication of the violent mentally ill. Is that something that would help here if other states passed it?
HENNINGER: It might theoretically help. Though, let's understand the entire mental health community and most of the civil libertarian community is totally opposed to this idea. There is an army of people out there resisting doing any such thing.
I think the key phrase here is "requiring people," forcing them to take medications. How do you do that? Because the problem is they go off their meds.
SHAFFER-RILEY: A thing about Kendra's Law is, what it does is, it requires you to show up some place, say, once a week, make sure you are on your medications. And if you're not, they can institutionalize you.
One of the things, if you look around cities today that have huge homeless populations, a lot of those people are people who, decades ago, would have been in mental institutions. And what you have now is a whole population out there of civil libertarians, who say this is a right. People have a right to be homeless. They have a right to be mentally ill. And that's a huge cultural problem.
GIGOT: All right, Naomi.
We have to take one more break. When we come back, our "Hits and Misses" of the week.
GIGOT: Winners and losers, picks and pans, "Hits and Misses," it's our way of calling attention to the best and the worst of the week.
Item one, the Army vows to clean up its act when it comes to caring for wounded troops — Dan?
HENNINGER: This is the great Walter Reid scandal. The Pentagon went before Congress today and said they are on top of the problem. It turns out it is not the quality of the medical care. It is not even rodent droppings in the room. It is red tape.
It turns out the Pentagon was simply a bureaucracy, could not process out-patient appointments or disability claims.
In short, FEMA and Katrina. It's another problem with the government. And it kind of brings to mind the old saying, we are the government and we're here to help, again.
GIGOT: All right, Dan.
Next, illegal immigrants are back in the headlines this week. But the reason may surprise you — Naomi?
SHAFFER-RILEY: Yes, I would like to offer a hit to the illegal immigrants out there, who paid their taxes in record numbers this year. I am pretty impressed because, I have to say, I know a lot Americans out there who, if the federal government could not find them, would not file taxes.
GIGOT: That's for sure.
SHAFFER-RILEY: Between 1996 and 2003, illegal immigrants paid close to $50 billion worth of taxes. These are people who critics claim are here just for our welfare system.
GIGOT: All right, thanks, Naomi.
Finally, a hit to Paul Wolfowitz for sticking it out at the World Bank amid a political firestorm — Kim?
STRASSEL: We've been having the press hyperventilate for two weeks now about how Paul Wolfowitz gave his girlfriend a huge raise, about how unethical this was, about how he should resign.
It was only when serious people started looking at World Bank documents that it became clear that Mr. Wolfowitz had wanted to recuse himself from anything that had to do with his girlfriend and an ethics committee had not allowed him to that, but, in fact, had told him to compensate her. So he was following orders.
What you really have here is Paul Wolfowitz's enemies — and there are many. People who don't like what he did in the Iraq war. People who don't like his anti-corruption campaign at the bank. Europeans who would like one of their own in his job, ginning up this scandal, feeding it to a gullible press, who doesn't like Mr. Wolfowitz any way.
So a hit to him for not caving in the face of all of this, and saying, I've still got work to do. And I am going to do it.
GIGOT: Yes, you can't underestimate how nasty this is, Kim. Because this is the Europeans, especially the British, trying to orchestrate a coup with the bank bureaucracy. And I think the Bush administration ought to tell those folks, if Wolfowitz goes, then the World Bank is going to be cut off and his replacement is going to John Bolton.
STRASSEL: Good point.
Thanks to Dan Henninger and Naomi Riley and Kim Strassel.
I'm Paul Gigot. Thanks to all of you for watching. And we hope to see you right here next week.
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