CBS NEWS: Face the Nation - Jay Sekulow Discusses the Vacancy on the Supreme Court

CBS NEWS: Face the Nation
July 3, 2005

JOHN ROBERTS, host:

Joining us now is Ralph Neas, head of the liberal group People for the American Way, and Jay Sekulow, one of the president's key advisers on choosing a nominee. He's also chief counsel for the conservative American Center for Law and Justice.

So I think what the American people want to know, gentlemen, this morning is what kind of battle are we about to see in a nation that is already deeply divided?

Mr. RALPH NEAS (People for the American Way): I hope and pray, John, that there's not going to be a battle. We don't want a battle. We have been advising Republican senators and Democratic senators and the president to consult. Let's get a bipartisan consensus nominee, someone who can bring the country together. We don't need any more polarization. We're at war in Iraq. We have a war on terror. We've got economic challenges at home. Let's have a unity candidate that all Americans can support.

ROBERTS: Well...

Mr. JAY ALAN SEKULOW (American Center for Law and Justice): You know, a justice isn't running for the Supreme Court. You don't run for the Supreme Court. This idea of a consensus candidate, while it may sound laudable and within the American ideals, that's not the way the Constitution's set up. And I think one thing that has to be clear here is the president ran--when he was running for president during the re-election, he ran with the concept that he is going to appoint, as he has for the Court of Appeals, conservative judges that are going to not legislate from the bench, that are going to interpret the Constitution. So this idea that we've got to have a consensus candidate, I think, is ridiculous. The president has the authority. The Senate can say yes or no. Hopefully it'll go through an orderly process. I think Ralph and I both hope for that. But this idea that the president has to come up with a consensus candidate with the Senate is just wrong.

Ms. JAN CRAWFORD GREENBURG (Chicago Tribune): Jay, one thing that's come out already today--some groups on the right are saying that they would oppose Attorney General Alberto Gonzales if he were to be nominated to the Supreme Court, becoming the first Hispanic on the Supreme Court. What are your views on that?

Mr. SEKULOW: Well, there is concern on the right, there's no doubt about it. There's not a lot of enthusiasm. You've seen the articles; you've written about it. I think the concern is especially that, in the context of what's upcoming to the Supreme Court of the United States--you know, it's interesting; we have the vacancy of Justice O'Connor, and at the same time the court is taking one major life case involving parental notification. Alberto Gonzales, when he was a judge in the Texas Supreme Court, dealt with that issue, came out on the other side of it than where the conservative groups are. So there's some concern.

There's also the issue of--he's the attorney general of the United States. He's doing a fantastic job, by the way. He was a great White House counsel, too. You're in the middle of a war on terror, as we were just talking--Ralph was just talking about, and the idea that we're going to switch the attorney general out in the middle of that I find to be timing not particularly great, but look, it's the president's call. But there's concern on the right; there's no doubt about it.

ROBERTS: Well, you've been consulting with the White House, Jay. What's the president's thinking on all of this?

Mr. SEKULOW: Well, you know, look, only the president knows what his actual thinking is. I don't even think the advisers to the president know. The president has said--and I trust him--that he's going to appoint a nominee that is conservative in their judicial philosophy, that is going to not legislate from the bench, that's going to stick with the kind of nominees we've seen for the Court of Appeals. I don't think it's going to be any different for the Supreme Court of the United States.

ROBERTS: So that would suggest then a conservative replacing Sandra Day O'Connor...

Mr. SEKULOW: That's right.

ROBERTS: ...and, Ralph, what does that do from your side of the fence? Do you unleash those millions of dollars that you have pent up in a campaign against a conservative candidate?

Mr. NEAS: We hope there's not going to be a fight. If the president picks a fight, we're going to respond and, of course, fight strongly in a right-wing ideologue.

ROBERTS: But how would you respond?

Mr. NEAS: Listen, I think we can get someone in the mold of Sandra Day O'Connor. What we need is Sandra Day O'Connor's America. She's been the fifth vote on two dozen decisions to protect clean air and clean water, protect privacy, protect a woman's right to choose and reproductive health.

Mr. SEKULOW: But, Ralph...

Mr. NEAS: We want a consensus here. If it's someone...

Mr. SEKULOW: ...the Constitution doesn't say...

Mr. NEAS: Let me finish, Jay.

Mr. SEKULOW: ...a consensus, Ralph.

Mr. NEAS: Let me answer the question please. If there is a right-wing ideologue replacing a mainstream conservative like Sandra Day O'Connor, it would be a constitutional catastrophe. Dozens of Supreme Court decisions would be...

ROBERTS: What would you do if there is?

Mr. NEAS: If there is? We'll work with our 750,000 members and activists. We'll oppose such a nomination. We'll work with all of our progressive colleagues all across the country and make sure that we have a national public discussion. Let's engage the entire country.

Ms. GREENBURG: Let...

Mr. NEAS: There's so much at stake, not so much for us but for our kids and our grandchildren.

Mr. SEKULOW: I don't understand this stuff here, though.

Mr. NEAS: It's the next 30 years.

Mr. SEKULOW: John and Jan, I don't understand this idea, Ralph, that the president now has to shift the type of nominee he wants to put forward for the Supreme Court simply because Justice O'Connor has resigned. And by the way, I find it fascinating--and I like Justice O'Connor. She's ruled with me more times she's ruled against me in cases I've had up there, but it's fascinating to me that when Justice O'Connor was the fifth vote also in Bush vs. Gore, everybody was castigating her. And now all of a sudden, she's being held up as the model justice. Now I like Justice O'Connor personally. I've agreed with some of her decisions, disagreed with others, but the president gets the authority to nominate a conservative judge just as he ran. I don't expect that to be any different which means I think there will be a little engagement here.

Ms. GREENBURG: Would you be--are you going to more closely scrutinize and fight against a solid conservative to replace Justice O'Connor or would you give the president more of a pass if he nominates a solid conservative to replace the more solid conservative chief justice when he retires?

Mr. NEAS: Jan, we've got to put on the table here that over the last 200 years more than 20 percent of the Supreme Court nominees have been rejected, 14 of them without a vote. So we take it case by case...

Mr. SEKULOW: It tells you what it's going to be.

Mr. NEAS: ...and we will look at Gonzales. We'll look at everybody very carefully before we make a decision, but the hearings are the most important part. All of the confirmations are decided by the Senate hearings. With all due respect to Jay and me, it's the Senate hearings and it's the advise and consent responsibility of the Senate, a co-equal branch of government with respect to this.

Mr. SEKULOW: The president gets to make the nomination, though. That's what the Constitution actually says.

ROBERTS: Gentlemen...

Mr. SEKULOW: Thanks.

ROBERTS: ...I'm sorry. We're out of time. So you want to see a consensus choice.

Mr. NEAS: Thank you. Thank you.

ROBERTS: Thank you very much, Ralph. You want to see the president make his own mind up. All right. There you go.

Mr. SEKULOW: The president will make his own mind up I can assure you.

ROBERTS: Now the battle lines have been drawn. We'll be back with a final word right after this. Stay with us.