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It’s been three weeks since terrorists struck at America on its home turf. The attack, and the government’s response, has thrown usual political dynamics off balance. Below are explorations of the altered agenda as seen through the fight over the primacy of federal power, partisanship and the federal bench, and Washington’s institutional interest in political scandal. FEDERAL POWER: WASHINGTON’S RETURN A new office of homeland security will have untold powers to prevent terrorism within our borders. The Federal Bureau of Investigation and the Immigration and Naturalization Service are expanding their reach. The airlines are getting a multibillion-dollar federal bailout, and the federal government may take over airline safety. Almost as suddenly as the hijacked airliners were wrenched off their flight paths and turned toward the World Trade Center and the Pentagon on Sept. 11, the tone in Washington has shifted dramatically. President George W. Bush’s campaign statements about reducing the size of government and shifting power to the states are forgotten for now. Federal authority, which has suffered blows at the hands of the judiciary, is poised for a period of greater respect. Of course, the true legacy of the attacks is at this point unknown. But political scientists, historians, and Washington legal observers say the events of the past three weeks have implications for the way government behaves, from the White House to the Supreme Court. Christopher Landau, an appellate lawyer and constitutional specialist at the D.C. office of Kirkland & Ellis, is “skeptical that this is a whole new world,” especially if there proves to be no more large-scale terrorist attacks. But Landau, a former clerk to Supreme Court Justices Clarence Thomas and Antonin Scalia, says there may well be perceptible and long-lasting changes in judicial decision making. “I expect changes in the courts’ willingness to second-guess law enforcement agencies,” says Landau. “Lately, the Supreme Court has been fairly undeferential to other branches of the government. I think there will be a lot more deference now. Claims regarding the need for law enforcement will be taken more seriously.” Landau says such an attitude is possible even in cases outside the national security realm. Supreme Court decisions in the string of states’ rights cases following United States v. Lopez — the 1995 case that struck down a congressional anti-gun measure as beyond the scope of federal power — could be decided differently in an era in which expansive assertions of national authority are given more credence. On the other hand, the judiciary may be reluctant to dial back its support of decentralized government power in anything but cases that involve the nation’s security. Lloyd Cutler, founding partner of D.C.-based Wilmer, Cutler & Pickering, says the “decisions that involve fighting the war will come out differently than in peacetime, as they did during World War II. But I don’t think Lopez will change.” Adds Stephen Wayne, a professor of government at Georgetown University: “I think the accumulation of power in the federal government will remain, but only as long as there is a publicly perceived crisis. If there is evidence that we have reduced the terrorist threat and there is quiet abroad, I think American politics will move back to business as usual.” Wayne’s view is echoed by others who attempt to place the attack and its immediate reverberations in Washington into broader trends. “The president has made pretty dramatic adjustments in his presidency, and this is to be expected in a crisis,” says Thomas Mann, a scholar at the Brookings Institution. “People rally round the flag and look to the executive. But I don’t know how transforming this will be. There had already been a considerable move to relegitimate the utility of the federal government and a dampening of the reflexive free-market approach, in the form of Bill Clinton’s balanced budgets and his successful confrontation with Newt Gingrich.” Ultimately, the shift may merely be along more prosaic ideological lines. Georgetown University Law Center constitutional law professor Mark Tushnet predicts that President Bush may have “a real opportunity to effect a substantial change in our constitutional government,” but a change of a conservative stripe. “If the president can show himself a successful leader in conducting activities against terrorism, and is successful on the rhetorical front as well — and this will take at least a year — he will have a chance to press the elements of his own conservative agenda that he had been having trouble moving [before the crisis]. My tests will be whether the Republicans gain in the 2002 off-year election and whether Bush can privatize Social Security,” says Tushnet. – Jonathan Groner JUDGES: BUSINESS AS USUAL While the events of Sept. 11 abruptly altered Washington policy agendas, the politics over the federal judiciary — for better or worse — have been barely affected. On Thursday, the Democrat-controlled Senate Judiciary Committee will host its second nominations hearing since the attacks. Just as before, Judiciary Chairman Patrick Leahy, D-Vt., is favoring those nominees who are not mired in controversy, while administration officials continue to grumble that Leahy’s pace could be faster. To be sure, putting forth a united front to respond to the terrorist attacks has eclipsed any public bickering among key players at the White House, the Justice Department, and the Senate Judiciary Committee. As an example, last week Leahy warmly welcomed John Ashcroft to a hearing on anti-terrorism legislation, despite having been one of 42 Democrats who voted against Ashcroft’s confirmation to be attorney general. But the bipartisan spirit in Congress — which has put off debates on hot-button issues such as campaign finance reform, “faith-based” social programs, and changes in Social Security — has not spilled over into judicial politics. Sheldon Goldman, a University of Massachusetts political science professor who has written extensively on judicial politics, says that right now would be a difficult time to deal with a contentious and ideological nomination. “We’ve got to hope that a Supreme Court justice doesn’t die,” Goldman says. “A vacancy would make bipartisanship very fragile.” Since taking over the Judiciary Committee in June, Leahy has emphasized noncontroversial nominees who enjoy broad support from both Democrats and Republicans. That approach is “all the more important now,” says David Carle, Leahy’s spokesman. “To take a controversial nomination would suck the oxygen out of the process and reduce the number of nominees we can work on.” But one administration official says that Leahy let the administration know back in August that consensus nominees would fare better than controversial picks such as Jeffrey Sutton, whom President George W. Bush has selected for a seat on the 6th U.S. Circuit Court of Appeals, or Michael McConnell, whom Bush tapped for the 10th Circuit. President Bush announced both nominees at a White House ceremony in May. “Leahy never had any intention of having hearings on those nominees,” says the official. Accordingly, the administration official figures it is highly unlikely that Sutton, vigorously opposed by disability rights groups, and McConnell, opposed by proponents of abortion rights and a church-state separation group, will get a hearing this year. Similarly, D.C. Circuit nominees John Roberts Jr., a Hogan & Hartson partner opposed by abortion rights groups, and Gibson, Dunn & Crutcher’s Miguel Estrada may have to wait until next year. Slated for this week’s hearing is New Orleans U.S. District Judge Edith Brown Clement, nominated for the 5th Circuit in May, and some district court nominees who had not been scheduled by press time. Clement enjoys the support of both home state senators, Democrats John Breaux and Mary Landrieu. Under the Democrats’ control, the Senate has confirmed three nominees to the courts of appeals and three to district courts. Two of those judges were confirmed by the full Senate after the terrorist attack, Sharon Prost for the U.S. Court of Appeals for the Federal Circuit and Reggie Walton for the U.S. District Court for the District of Columbia. Two more nominees, one each for the trial and appellate courts, are waiting for a vote by the Judiciary Committee. Altogether, 53 Bush nominees are pending. There are 109 judicial vacancies. White House Counsel Alberto Gonzales pledged over the summer that the administration would nominate close to 100 judges by the end of the year. That effort could be hindered by the terrorism crisis as resources at the Federal Bureau of Investigation, which conducts background checks, are diverted to the investigation. One judicial nominee has been affected as well. Nebraska Deputy Attorney General Laurie Smith Camp, nominated for a district court seat, missed her Sept. 13 hearing because flights were still grounded and she could not get to Washington. It is not clear when she will be rescheduled. – Jonathan Ringel SCANDAL: A FOCUS ON WHAT MATTERS Former FBI Director Louis Freeh and former Attorney General Janet Reno used up much of their time and credibility arguing over campaign finance probes. The independent counsel investigation into various and sundry Clinton scandals consumed Capitol Hill and the White House for years, eating up in excess of $60 million. From “Nannygate” to the definition of “is,” from “no controlling legal authority” to endless independent counsel probes, personal scandals have fascinated and repelled the nation over the past decade. They have also frustrated longtime observers of American politics in the academic and legal worlds. Now, it seems, the culture of scandal that has preoccupied Washington since the early 1990s could dissipate. “The criminalization of political debate will decline,” says Fred Fielding, founding partner of D.C.-based Wiley, Rein & Fielding and White House counsel to President Ronald Reagan. “There has been such a deterioration of comity between the parties, and this will be a positive change. Politics won’t disappear, but as long as the public demands it, there will be more nonpartisan responses to issues.” Georgetown University Law Center constitutional law professor Mark Tushnet agrees with the more conservative Fielding. “The culture of scandal was changing anyway,” he says. “Now it will go way down. We now know that there are more important things than that.” Alan Brinkley, a professor of American history at Columbia University, links the “gotcha” scandal mentality to the fact that control of Congress and the White House have been so closely contested in recent years. As sharp political infighting declines during the terrorism crisis, he thinks, so will the visibility of scandals. “Scandal is a product of a very high level of partisanship, which itself grows out of the highly divided nature of our politics,” says Brinkley. “In the current atmosphere, neither side will want to be seen as highly partisan. On the other hand, neither side has given up on its hopes and its issues.” Thomas Mann of the Brookings Institution notes that bipartisanship never lasts very long, pointing out that Democrats are already dissenting from some details of Bush’s proposals on wiretapping and the economic recovery package. But he says that partisan differences are likely to remain much more substantive and less personal and gossip-ridden. “The processes that have gone on all make a more genuine and civil set of relationships more likely,” says Mann. “The debate will be more content-filled and less full of petty matters.” Wilmer, Cutler & Pickering’s Lloyd Cutler, who was White House counsel to Presidents Jimmy Carter and Bill Clinton, has seen the political mood swing many times in more than six decades of law practice. He says he sees “no permanent diminution in the culture of scandal.” “Scandal will still be with us,” Cutler says. “After all, juicy scandals didn’t stop during World War II.” Stephen Wayne, a Georgetown University professor of government, notes that “right now, the terrorism has muted the culture of scandal. But it will be hard to focus on terrorism for a long period of time, unless the U.S. is attacked again. So scandal is a respite from more important problems. You need the luxury of that respite every now and then.” – Jonathan Groner

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