FOX NEWS - Hannity & Colmes - Interview with Jay Sekulow and Catherine Crier on Alito Nomination

January 10, 2005
Interview With Jay Sekulow & Catherine Crier on Alito Nomination

ALAN COLMES: Hey, guess what? Look at that. We have 301 days left until the Democrats take back control of the House and Senate. Start counting. We're starting to count.

SEAN HANNITY: Want to bet?

COLMES: And -- yes.

HANNITY: I'll bet you now.

COLMES: All right. What do you want to bet? Don't start in with me.

(LAUGHTER)

And some of the issues that will take center stage during the 2000 midterm election were discussed today during Judge Alito's hearings. Joining us now is the author of "Contempt: How the Right is Wronging American Justice," Court TV's Catherine Crier. And from the American Center for Law and Justice, Jay Sekulow.

Good to have you both back with us.

CATHERINE CRIER, COURT TV NEWS ANCHOR: Thank you.

JAY SEKULOW, AMERICAN CENTER FOR LAW AND JUSTICE: Good to be here.

COLMES: Now, we just talked about, you know, Judge Alito said the president's not above the law. But isn't the issue, well, what does he think the law is?

CRIER: Absolutely.

COLMES: Is the law that you can wiretap without a warrant? Is the law that you can expand executive power? If you think that's the law and say the president's not above the law, that's what the question is.

CRIER: We know what the expected answer would be. And that is, of course, this issue may well come before the court.

But I've got a solution for this, and I'd be interested to know what Jay thinks on this. There was a case a couple of years back where a judge who was campaigning for office in the state actually sued to be allowed to give his political opinions without being declared ineligible then to decide cases. And the courts came down and said, "You can absolutely do that under the First Amendment. And in fact, there will be no presumption that you are then biased on the subject, even if you've given out your political position."

So let's reverse that and say, "Now you guys have to give out your position, because there's a presumption you are not biased. And then we can"...

(CROSSTALK)

COLMES: You know, Jay, Democrats are getting attacked by conservatives for some of them having already decided that they're going to vote against Alito. You put out a press release today, your organization, supporting Alito, saying vote for him, he should be confirmed.

SEKULOW: Yep.

COLMES: So it can't work both ways. How do you know ahead of time he should be confirmed? He hasn't answered questions yet.

SEKULOW: Well, we've actually -- you know, I'm someone that litigates cases. And I know his judicial philosophy. We've had -- the kind of cases that he's decided, I've had many of those. And I'm comfortable that, not only did the president make the right selection here, but this is someone with a conservative judicial philosophy. He's said that. He has a view of the Constitution that I think is going to supportive of the kind of issues that I'm concerned about.

You never know. And Catherine knows this, too. You never know how an individual justice is going to rule on any particular case.

COLMES: So how are you so sure?

SEKULOW: Well, I like his judicial philosophy. And I'll tell you where I focus in on, Alan. And that is, how does he view his role as judge? Does he understand that the legislative body is the deliberative one that makes the policy decisions? And he's supposed to take the facts and apply them to the law.

And I am convinced that Judge Alito, like John Roberts, is going to be that kind of justice.

Now, with regard to what Catherine Crier said about the issue of, can the judge say what my positions are? Of course, the ABA guidelines and the federal court guidelines for federal judges tells them they're not supposed to do this. So it would take a requirement of a changed law. And I don't think we want judges deciding cases before they hear the briefs, read the briefs, and hear the oral arguments.

CRIER: But, Jay, they use it as such a blanket that you can't ask...

SEKULOW: No, they don't.

CRIER: ... even about old cases. We can't go back and say, "What would you have done on Roe v. Wade?"

SEKULOW: Yes.

CRIER: "What did you think about Bush v. Gore?" We can't go anywhere, because they're going to use that an excuse.

COLMES: How do we know...

SEKULOW: I don't know if you noticed this, though, today, Catherine. Judge Alito did not do that. He did not...

CRIER: He didn't get a chance to speak, for heaven's sake.

(LAUGHTER)

SEKULOW: These senators were going on for 17-minute questions.

HANNITY: Let me...

SEKULOW: You know, interestingly Judge Alito did not invoke the Ginsburg rule. He did not say over and over again that's a case likely to come before me. He stated very clearly...

HANNITY: But Catherine's right. But, Jay...

SEKULOW: ... what his judicial philosophy was.

HANNITY: Catherine's right. They gave 15-minute speeches. They didn't ask him questions.

SEKULOW: ... 17 minutes.

(CROSSTALK)

HANNITY: Senator Biden and Kennedy, I mean, it was horrible. Frankly, it was...

SEKULOW: It's politics, Sean.

HANNITY: ... great for Alito. He just sat there. And you wonder what he's thinking. He's like, "Shut up."

CRIER: "Why am I here?"

HANNITY: "Why am I here?"

SEKULOW: Could you imagine being the judge in that -- I was in those hearing rooms on and off during the day today and was there when somebody's 12-minute questions were coming.

HANNITY: Oh, it was horrible.

SEKULOW: I've argued cases in the Supreme Court and they'll ask you a question for a minute and a half and you'll think it's a day long. So it's tough.

(CROSSTALK)

CRIER: You know what we've got to do, Sean? We've got to do what we do at other hearings, and that is we've got to have legitimate lawyers in there, not those that play senators, and actually let them do the questioning.

HANNITY: I mean, Dianne Feinstein at least asked some questions. I mean, Feingold, as arrogant as he was, he asked some questions.

Let me ask you one. You've got to acknowledge that, if you look at his 15-year track record, which is I think why conservatives support him, because he has an originalist philosophy, conservative philosophy. We have a conservative president.

But yet he did support the Planned Parenthood position, invalidating the partial-birth abortion ban in the state of New Jersey. I think it clearly shows he does not go in there with an agenda, does it not? He has respect for precedent.

CRIER: I have problem that we've put abortion as sort of end-all and be-all with all of these cases. But, in fact, I don't really have -- I may disagree with him in the case he takes...

HANNITY: I agree.

CRIER: ... but I don't think his record demonstrates that the man is going to necessarily walk in and try and overturn Roe v. Wade. Now, I think his philosophy is such that he would like to see that done.

HANNITY: But it shows he's not a judicial activist.

(CROSSTALK)

CRIER: No, as a judge, he has not demonstrated that he is going to go in there and turn it over.

HANNITY: Good point.

CRIER: I would like more decent questioning on the issues that are of grave importance, particularly the executive privilege.

(CROSSTALK)

HANNITY: Hang on, because property rights, religious freedom, executive questions, all of these things.

CRIER: That's what I want to hear about, and not just the...

(CROSSTALK)

HANNITY: Well, it's interesting, because you know what? They missed the opportunity to ask him questions. And I think the reason is political, because they came in there with a pre-drawn conclusion.

SEKULOW: Exactly.

HANNITY: They're not going to vote for him anyway, so they want to present themselves as looking so smart and sophisticated.

(CROSSTALK)

CRIER: I think we ought to have a new rule.

SEKULOW: This was a situation where they were trying to -- I think what Catherine says is actually correct and, Sean, what you're saying, and that is you had, not so much an inquiry today as to where this judge stands on a particular issue, but rather a lot of political grandstanding.

CRIER: On both sides. On both sides.

SEKULOW: That may be part of the process now...

(CROSSTALK)

HANNITY: All right. Let me ask Catherine, and then I'll get you a chance to -- did they score any points, in terms of hurting his nomination? Are we just going to look at party-line votes in committee and on the Senate floor?

CRIER: I think his vote is going to be narrower than that for John Roberts, but I think he's going to get confirmed.

HANNITY: Yes.

CRIER: You're going to have some very strong, you know, political statements with a no vote. But I didn't see them score many points, but I didn't see them effectively questioning to obtain the information that might give them points.

HANNITY: But when given an opportunity, Jay, he did come off as smart, well-informed, with a consistent philosophy. Clearly...

CRIER: I don't think anybody argues that he has all of those qualities.

SEKULOW: He certainly -- let me say this. This man performed, as Lindsey Graham just said, it was a Roberts-esque kind of performance. He did magnificent.

HANNITY: Yes.

SEKULOW: This is someone that knows the law. So when he was given the chance to answer a question, which was not all that frequent, he did fantastic.

HANNITY: I think, clearly, sitting there...

SEKULOW: And he's going to be the 108th associate justice of the Supreme Court.

HANNITY: ... being lectured by Ted Kennedy and Joe Biden, he certainly showed he had the judicial temperament.

CRIER: I want a one-minute rule. You can only jabber for one minute before you have to ask a question or the duck comes down.

HANNITY: Could we have that on "Hannity & Colmes"?

CRIER: Oh...

(LAUGHTER)

COLMES: What's that about asking long questions?

HANNITY: I never asked a 12-minute question, let the record show.

COLMES: We don't have that much time. Catherine, Jay, thank you both very much.

SEKULOW: Thanks for having me.