FOX NEWS: Hannity & Colmes - Jay Sekulow on the Vacancy at the Supreme Court

FOX NEWS: Hannity & Colmes
July 1, 2005

SEAN HANNITY, CO-HOST: And welcome to "Hannity & Colmes." Thank you for being with us. I'm Sean Hannity.

There were conflicting reports today about the status of the three boys being held in Aruba in connection with the disappearance of Natalee Holloway. Joining us now with the very latest details is our own David Lee Miller -- David?

DAVID LEE MILLER, FOX NEWS CORRESPONDENT: Sean, well, this afternoon the Associated Press ran a story that was picked up pretty much around the world. They said the prosecutor in the case said that the three boys had, in fact, been charged with murder, all three suspects.

Now, this story was not accurate, and it has now been corrected. A government spokesman says the problem here was not a legal one but one of semantics. To date, Joran Van Der Sloot, Deepak Kalpoe and Satish Kalpoe are all accused of murder. They are not charged with murder. Legal experts here say the differences in U.S. and Aruban legal terminology led to all the confusion.

(BEGIN VIDEO CLIP)

CHRIS LEJEUZ, ARUBAN ATTORNEY: We don't know the term formally charged. We try to explain sometimes to the American people that we try to use the term formally charged for procedures within our system that are not truly exactly the same as the ones in the United States.

(END VIDEO CLIP)

MILLER: At a later stage, shortly before trial, legal experts say the suspects and their attorneys will have the right to review the evidence that will be used against them. And that, we are told, is the Aruban equivalent to a suspect being charged.

Now, all three suspects are expected to be in court by Monday for a detention hearing that could keep them behind bars for an additional 60 days. And unlike the previous legal proceedings, this time they will have the right to appeal the judge's ruling.

The prosecutor, meanwhile, is telling FOX News that there is physical evidence in the case, but she would not elaborate. In the last few days, the chief prosecutor, Karin Janssen, had said that, even without finding a body there could still be a successful prosecution.

Some legal observers here say officials are now conducting what amounts to a public relations campaign to show the American public that authorities here are actively trying to bring to justice those responsible for Natalee's disappearance. And towards that end, the authorities are now saying that the conviction rate here for prosecutors is as high as 89 percent.

And meanwhile, the search for Natalee Holloway will be continuing this July Fourth weekend. Expected to join the volunteer searchers now will be Dutch Royal Marines -- Sean?

HANNITY: All right, thanks, David. We'll go back to Aruba a little bit later in the show, and we'll get reaction from Natalee Holloway's family coming up tonight.

But first, earlier today, the political and legal landscape of the country, it changed dramatically with the retirement of Supreme Court Justice Sandra Day O'Connor. And coming up tonight, the great one, Mark Levine will be here. And he'll join us and help us survey the political landscape and the threats that are already coming from left-wing groups and some Democratic members of Congress.

We'll also tell you who could be on the short list for replacing Sandra Day O'Connor. Does the Justice O'Connor's replacement need to be a woman? And is the woman on your screen the likely choice? We'll tell you who she is and who else could be in the running.

But first, we begin tonight with the impact of Justice O'Connor's resignation. We're joined now by the author of "Courting Justice: From New York Yankees v. Major League Baseball to Bush v. Gore," constitutional attorney David Boies, and the American Institute for Law and Justice, an attorney who has also argued several cases before the Supreme Court, Jay Sekulow.

And we remember you, David. You were on earlier today -- and I was listening to you -- and you thought -- you sort of were saying, well, the president needs to go consensus. Am I wrong in your...

DAVID BOIES, CONSTITUTIONAL ATTORNEY: Well, I don't know about consensus. But I think that, obviously, the president's going to appoint somebody who's conservative. What he also needs to do, I think, is appoint somebody who has a breadth, who has a breadth of judicial knowledge.

It doesn't have to be a judge, but somebody who has got some experience and somebody who, I think, the country will have confidence in. And that's what he said when he was talking about the retirement of Justice O'Connor. He said the American people deserve the best. And I'm hopeful he'll do that.

HANNITY: You know, it's funny, because a lot of Democrats are saying, "This is going to be the real test to see if he's going to be a uniter, not a divider." And I'm thinking, we just had an election. While running, this president said that he looks to and admires justices like Clarence Thomas and Antonin Scalia. And why would we expect anybody else that didn't have that originalist thought process or that philosophy?

BOIES: Well, remember, he's got to get it through the Senate, too. I mean, the Constitution sets up two processes. The president appoints; the Senate has to agree.

And so it's a consensus-building process. Since the Democrats have enough to -- you know, more than 40 votes in the Senate, there's got to be some kind of consensus. Now, I don't think that means that he's got to appoint somebody who the Democrats would have appointed. But what he's got to do is he's got to find somebody who is not off the spectrum.

HANNITY: You know, Jay Sekulow, it's funny. I went back, and I looked up, for example, the comments about Judge Bork by Ted Kennedy. "Robert Bork's America is a land in which women would be forced into back- alley abortions, blacks would sit at segregated lunch counters."

And I couple that today with the comments and the rhetoric of Harry Reid who called the president a loser, Dick Durbin, who we just debated in the last few days, Howard Dean who says he hates Republicans, Republicans are evil and dead.

And I'm wondering, unless the president appoints Ted Kennedy, is there anybody that these Democrats are going to be happy with?

(LAUGHTER)

JAY SEKULOW, AMERICAN INSTITUTE FOR LAW AND JUSTICE: You know, here is what I think. First of all, Sean, what happened to Judge Bork was absolutely outrageous. But I will tell you this, as someone that's involved in the process, that is never going to happen again.

This time, there's organization on our side. And when the president nominates someone in the mold of the kind of nominees he's put forward for the court of appeals, I believe you are going to see a reaction from Senator Kennedy and others that's going to oppose the nomination.

And I don't think the president's under an obligation...

HANNITY: No matter what?

SEKULOW: ... to appoint -- I do. I think whoever the president nominates is going to get a reaction.

HANNITY: I agree with you, actually.

SEKULOW: My friend Ralph Neas from People for the American Way, they've been waiting for this moment. What they don't have -- what they didn't have previously they're going to have this time is they're going to have engagement from our side.

And they did not have that before. And Ralph knows they've got to be ready. We are as organized as we've ever been at the American Center for Law and Justice. We sent out 850,000 e-mails today. We were on radio all day, been TV all day. Our side is motivated.

ALAN COLMES, CO-HOST: Well, let me ask you about that. Jay and David, good to have you with us.

David, apparently $18 million from the right is going toward lobbying for a justice they want. Does that have any effect? Is that going to make any difference, in terms of who becomes the next Supreme Court justice?

BOIES: I think it will make some difference. But I think that, fundamentally, this is going to be decided in the Senate. The president's going to appoint somebody who he respects, admires. And then the Senate's going to make a judgment.

Now, the spending of all of this money is going to affect the polls to some extent, but I don't think that's where the ultimate decision's going to be made.

COLMES: So, Jay, you've got all this money behind you. You said you're mobilizing, you're calling, you're e-mailing, you're lobbying. But don't you want a president who's impervious to polls, to lobbying? Don't you want a decision that's going to be made in a fair and balanced manner?

SEKULOW: This isn't for the president. Remember this, Alan. This is not -- and it's really not lobbying. I mean, this is public opinion.

(CROSSTALK)

SEKULOW: You're allowed to speak. That's what the First Amendment is.

But look, you want the president to get his nominee through. That's what our job is here. And we're not lobbying the president. We're not asking -- we trust the president's selection for judges. When you think about, just in the last few days, who we have seen confirmed, Priscilla Owen, Janice Rogers Brown, Bill Pryor, these are great nominees on the court of appeals. I believe the president is going to select a nominee in that kind of caliber.

And David and I both practice before the Supreme Court of the United States. So we know what's at stake here. This shift, with Justice O'Connor's resignation, is more significant than it would have been if the chief justice would have resigned.

COLMES: Sure.

(CROSSTALK)

COLMES: Can the president get anybody, David, he wants to, at this point? Does he have enough political clout, enough political capital, or where should he not go?

(CROSSTALK)

BOIES: No, he can't get anybody he wants. I think that there will be a tendency in the Senate to give the president's choice a benefit of the doubt.

On the other hand, I don't think he can get through anybody he wants. I think that this is an instance in which the president can reach for somebody based on ability, based on stature.

COLMES: Where should he not go?

BOIES: He should not go for somebody who is viewed by both the left and the right as somebody on the extreme. One of the issues is that the right...

(CROSSTALK)

SEKULOW: ... Janice Rogers Brown, David? How would you react to the appointment of Janice Rogers Brown? She served on the California Supreme Court for years.

HANNITY: Jay, we've got to run.

Guys, we will have you both back.

SEKULOW: All right.

COLMES: And he'll answer that question then.

HANNITY: The debate has just begun, and I predict it will be fierce. David, good to see you.

BOIES: Good to see you.

HANNITY: Do you agree with that?

BOIES: It will be fierce.

SEKULOW: Absolutely fierce.

HANNITY: I think it will be, too.