FOX News - Hannity & Colmes - A Closer Look at the Record of Supreme Court Nominee Alito

FOX News - Hannity & Colmes
November 1, 2005

SEAN HANNITY, CO-HOST: And this is a FOX News alert.

Senate Democrats shut down the peoples' business in the United States Senate this afternoon, invoking an arcane rule to close the doors to the public and go into executive session.

Democrats said that they wanted to discuss pre-Iraq war intelligence and accused Republicans of ignoring the issue. Republicans said it was a political stunt, and they accused the Democratic leadership of hijacking the Senate without any notification.

And Democrats became visibly irritated with reporters when asked why they gave no notice to their counterparts across the aisle.

All of this happened today with the back drop of the president's new nominee for the United States Subcommittee, Judge Samuel Alito, meeting with senators on Capitol Hill.

And, as predicted, Democrats have already begun their name-calling. New York Senator Chuck Schumer has already referred to this nomination as controversial. Ted Kennedy has called Alito "outside of the mainstream." And former presidential nominee John Kerry says Alito is, quote, "divisive."

So are Democrats even capable of giving Alito a fair shake? Joining us now, Court TV host, author of the book, "Contempt: How the Right is Wronging American Justice" -- I keep saying Ted Kennedy gave you that title...

(CROSSTALK)

(LAUGHTER)

HANNITY: And from the American Center for Law and Justice, Jay Sekulow.

Jay, I looked at this for a couple of reasons. You tell me if I'm misreading what happened in the Senate today. I think they're angry they didn't get the indictment they thought was coming against Karl Rove. They're lashing out in that regard. They don't like Samuel Alito, but they really can't find anything yet to attack him on. And so they're just lashing out.

Am I right in my perception here?

JAY SEKULOW, AMERICAN CENTER FOR LAW AND JUSTICE: Well, I think you're right. And I think this is -- look, you better buckle on the seat belts here, because I think this is what's to come.

I think what you saw happen today in the Senate was -- you talk about an arcane move -- almost unprecedented in Senate history. And the idea that they would go into the session, which the senators that came out said nothing was really -- had anything to discuss at all, no real substance.

So I think what you've got really going on here, quite frankly, Sean, is that this is the warm-up to the Sam Alito confirmation to the Supreme Court of the United States. And I think we need to realize that's what they're trying to do.

Now, having said that, there is talk about a filibuster. I just don't see it. This is a well-qualified nominee. He's a Yale school graduate, editor of the "Law Review," argued 12 cases at the Supreme Court of the United States and been a sitting judge for 15 years. It's not hard to figure out where he stands on his constitutional jurisprudence. Read his opinions for the -- I think there's 300 published ones.

HANNITY: But, Catherine, Barbara Boxer is threatening a filibuster, although I have spoken now to a number of the Gang of 14.

CATHERINE CRIER, COURT TV NEWS ANCHOR: Right.

HANNITY: And they do not -- the one's I've spoken to -- view this now as an extraordinary circumstance. He is well-qualified. He's got intellectual capability. He's got the years of experience. He seems to have the temperament and the demeanor of a John Roberts. Why wouldn't he...

(CROSSTALK)

CRIER: You're not going to hear any disagreement on any of that. I expect the man will be confirmed. I will be surprised if they waste the filibuster on this particular candidate.

But all of the terminology that the Democrats are using is simply acknowledging -- and I think Jay would agree with me on this, and they want this -- a man who is going to change the direction of the court, a man who is going to change those 5-4 decisions to the other way around.

So when they're saying "outside the mainstream," this and that, they are saying that, as far as we have a perception of the country, it is going to change with this candidate.

HANNITY: But here's what we have. Bill Clinton wins an election, hard fought election. He's the president. He gets to nominate people to the Supreme Court.

Ruth Bader Ginsburg, I think when you look at her position on the age of consent that she wanted to lower to 12...

CRIER: That's all pre-Supreme Court. That's all pre-Supreme Court.

HANNITY: Pre-Supreme Court, believed in legalizing prostitution, thought polygamy may be a constitutional right, and other controversial decisions. It was clear she slanted solidly to the left.

Now, it seems that the liberals that wanted support for somebody like that, they now want, like what, George Bush to appoint another Ruth Bader Ginsburg? It's not realistic.

CRIER: Oh, I don't think they anticipate that. And, of course, Ruth was able to do exactly what we heard from John Roberts and say, "When I'm representing clients, you're going to hear me advocate one position. But a role as a judge is something very different," which Alito certainly will be able to...

HANNITY: She turned out to be a pretty steady vote for the left, though?

CRIER: She's very judicially restrained. And I don't know that Jay would disagree with me on that. She's pretty judicially restrained.

SEKULOW: Interesting. And let me tell you where I agree with Catherine on two points here.

One is, the fact is, if you look at the nomination process here -- and that's what you're looking at -- what you have with Sam Alito, even maybe more so than with John Roberts, is you've got a history here. You've got a track record.

The same thing was true, actually, of Ruth Bader Ginsburg. Sean, what you said is right. I mean, look, it's the president's prerogative to nominate. And an extraordinary circumstance, you look at Samuel Alito's background and his judicial philosophy and what will be his judicial temperament, and this is someone that is going to perform very well at these Senate confirmation hearings.

They're going to be hard-pressed to mount a filibuster against this. Even if you disagree with his legal positions, he's a well-qualified nominee.

ALAN COLMES, CO-HOST: Hey...

CRIER: Let me ask Jay -- sorry -- real quickly if he agrees with me on this. A lot of dissents, where even the Supreme Court has quoted him as sort of pushing the envelope, setting hurdles higher for plaintiffs in cases to get in, this sort of thing, do you expect to hear at least a debate centered around whether he's a lot like Rehnquist was early on in career, when he was called the Lone Ranger? He may have written a lot of dissents there in the Pennsylvania circuit court, but they're hoping that those will become majority opinions on the court if he's appointed.

SEKULOW: Well, I think something you actually said earlier is really correct here. This is, on some very close cases, could well be a significant shift.

Now, Justice O'Connor, as you know, was a swing vote in so many cases. And she went with the conservatives, and then sometimes she'd go with the liberal groups. But I think -- look, I think there's no doubt about it.

And a lot of these 5-4 cases, you take the partial birth abortion case, some of these others, where it's that close, I mean, razor thin. One justice does make a difference. Sam Alito's a judicial conservative. It's going to make a difference.

COLMES: That was a good question, Catherine. You'd be a very good host. I think you'd do very well.

SEKULOW: She is a good host.

COLMES: You know, getting back to the Senate -- and this was not unprecedented what they did today. You have the president -- they called it a stunt. What the Democrats said, the president has done daily news conferences at 10:00 Eastern every morning to get our -- one day it's about the flu, one day it's about Iraq -- to get our mind off, it seems...

CRIER: Sure.

COLMES: ... of the things that he may not want to be talking about everyday.

CRIER: Yes, and I do feel a little sorry for the Democrats, because, you know, they want to have a hearing...

(CROSSTALK)

COLMES: Now, let her speak.

(LAUGHTER)

CRIER: They stick them -- remember when they stuck them down in the basement, and the Republicans wouldn't attend? And there they are all by themselves. So I do think the subject is worthy of inspection. And they had to create a little headline to do it.

COLMES: Absolutely right. And, Jay, the other thing I keep bringing up here, because Ruth Bader Ginsburg is often seems to be the yard stick against which they judge every -- no pun intended -- who is nominated. But this was a consensus candidate. Orrin Hatch and Bill Clinton discussed it. They pretty much knew they had the votes ahead of time. They knew it would not be decisive.

President Bush knew Alito would be a divisive choice, when he had an opportunity to really try to unite the country at the time of his lowest approval ratings, and he didn't go that route.

SEKULOW: Well, you know, it's interesting. Justice Ginsburg was approved 97-3. And a lot of senators that disagreed with her judicial positions voted for her, because she had the academic and professional experience. She was another one that argued before the Supreme Court, I think, seven times.

CRIER: But she wouldn't change the court. She wasn't going to change the court.

(CROSSTALK)

COLMES: It wasn't changing the course, and they knew going in that they had the votes.

SEKULOW: Yes. And I think, look, going in here, we've got the votes. I mean, I think -- what Catherine said earlier again is right.

He is going to be confirmed as an associate justice of the Supreme Court of the United States. They're not mounting a filibuster here. There's no...

(CROSSTALK)

SEKULOW: You can't take a nominee with these qualifications and say, "I disagree with how he's going to vote in a particular case," and then say, "Therefore, I'm going to filibuster." I just don't see it.

COLMES: Catherine, what you said before is really the key here. If this is about changing the direction of the court, given the number of 5-4 decisions, and talking about the mainstream, they want out of the mainstream. They don't want the mainstream, the status quo, to exist as it has up until now.

CRIER: And I'm so tired of only hearing about the Casey case or the abortion issue, because there are so many. When we're talking about individual rights, access to the courts, we're talking about government regulation, limitations on corporations, there are so many things that this man will influence and has done so, expressed in his dissents. That's what we need to be talking about, as well.

COLMES: Isn't the idea, Jay, not to replace a Sandra Day O'Connor with a Sandra Day O'Connor-type, but to move the court to the right? Isn't that what the agenda is of this administration?

SEKULOW: Oh, absolutely. Look, yes, is the answer to that.

(LAUGHTER)

I mean, there is no doubt about it. Look, the president won the election, Alan. He gets to make the nomination. President Clinton had the opportunity...

COLMES: Advice and consent.

SEKULOW: ... in the appointments of Justice Ginsburg and Justice Breyer to move to the court more to left of center. That's what he did.

COLMES: He gets to nominate, but the Senate gets to advise and consent.

SEKULOW: President Bush has said, "I'm going to give you John Roberts and with Sam Alito, I'm going to move it right of center."

HANNITY: We've got to run.

SEKULOW: And that's what he's doing.

(CROSSTALK)

HANNITY: We got to run, Jay.

SEKULOW: It always ends up being pretty close. You know, these cases, it's rare that they're unanimous.

HANNITY: They don't want a justice who will rule by judicial fiat, that will legislate from the bench, that believes in coequal branches of government.

CRIER: That's political terminology.

HANNITY: That's all true, is what it is.

(CROSSTALK)

HANNITY: You want liberals on the court. I want people that have restraint.