MSNBC - THE ABRAMS REPORT - Jay Sekulow Debates the Filibuster Issue With Barry Lynn of Americans United

April 22, 2005
MSNBC - THE ABRAMS REPORT
BYLINE: Dan Abrams, Noelle Walker

HOST:  DAN ABRAMS:  The big issue -- this heated issue. The majority leader is providing a taped statement for a 90-minute program produced by the Family Research Council called "Justice Sunday". Here is part of an ad the group is running on its Web site.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Filibustering people of faith needs to stop now. Join Dr. James Dobson, Tony Perkins and Dr. Al Mohler for a live simulcast on this station, "Justice Sunday". Together let's tell the Senate to stop filibustering people of faith.

(END VIDEO CLIP)

ABRAMS: Question: Should the Senate change its rules, put an end to judicial filibusters? "My Take" -- it's dangerous business for the Senate to be changing rules because they don't like the outcome. As they often say in court, tough cases make bad law. I think it's probably true here.

Jay Sekulow is chief council for the American Center for Law and Justice and Reverend Barry Lynn is executive director for Americans United for Separation of Church and State. I mean what bothers me -- and Jay, let's take this out of the judicial realm...

JAY SEKULOW, AMERICAN CENTER FOR LAW AND JUSTICE: Sure.

ABRAMS: ... for me. But when you're looking at the big picture, it seems to me either you get rid of filibusters altogether or you don't. But to sort of pick and choose a topic and say you know we're just going to get rid of it for this topic because we don't like the outcome, it seems to me a problem down the road.

SEKULOW: Well no -- but there is a constitutional reason why that's OK and that is when you're dealing with a judicial appointment, you're dealing not just with a legislative determination, which would be solely within the legislative branch, which would be the passing of a particulars bill, making it a law, but in the context of judges, you are dealing with the power of the executive as well. Under Article Two of the Constitution, the president has the authority to nominate and appoint. The role of the Senate is advice and consent. If you filibuster a judge -- a judicial nomination, what you effectively have done is amended the Constitution because there is no requirement in the Constitution for the super majority that's being imposed right now on this.

ABRAMS: But you could make that argument, right, for anything they are filibustering...

SEKULOW: The difference though, Dan, of course, would be that legislative bodies when they make these kind of determinations set their own rules for legislation. But they shouldn't be able to affect the portions of the Constitution -- I'm not -- I don't like filibusters generally by the way...

ABRAMS: Yes.

SEKULOW: Their history is terrible.

ABRAMS: Yes.

SEKULOW: Filibusters came to their notoriety in the 1950's when they were used to stop -- in the '60's to stop civil rights legislation...

ABRAMS: Yes.

SEKULOW: ... so I'm not a fan of filibusters, period.

ABRAMS: Reverend Lynn.

BARRY LYNN, AMERICANS UNITED FOR THE SEPARATION OF CHURCH AND STATE:  You know these are just rules of the Senate, Jay, and they can be changed and have been changed frequently. But let me explain what is really wrong here. The problem with Senator Frist, for example, going to this...

ABRAMS: We'll talk about that in a minute. Let's...

LYNN: OK.

ABRAMS: ... strictly though to the issue of filibusters...

LYNN: Yes, it absolutely makes perfectly good sense for there to be a check and balance in the United States Senate, so that even if you have a majority of people, a bare majority elected from one party that they will not simply be able to take every nominee that comes from the president and kind of pass them through like they were greased pigs in a greased pig contest.

SEKULOW: But Barry the Constitution doesn't say that...

LYNN: You want to have some way in which the minority has a legitimate role in saying there are some people -- very few, in a case...

ABRAMS: Yes.

LYNN: ... this president, 10 who are so far out of the judicial mainstream...

ABRAMS: Yes.

SEKULOW: Out of the judicial mainstream, of course, because their concern is they're out of the judicial mainstream because they might be pro-life...

(CROSSTALK)

ABRAMS: That's what we're going to talk about...

(CROSSTALK)

ABRAMS: Hang on.

(CROSSTALK)

ABRAMS: Hang on.

(CROSSTALK)

ABRAMS: That's going to be our big topic coming up.

UNIDENTIFIED MALE: Yes.

ABRAMS: Let me ask you both to stick around...

UNIDENTIFIED MALE: Yes.

ABRAMS: ... for a minute because when we come back, Senate majority leader Bill Frist says Democrats want to keep judges off the bench because of their religious beliefs. Is there any truth to it?

And neighbors in one Florida town -- excuse me -- put up flyers labeling a convicted sex offender a child rapist. Now he has apparently committed suicide. His parents say it is because of those flyers and get this -- now some of the neighbors could be arrested and face up to a year in jail, coming up.

ABRAMS: Coming up, Senate Democrats appear ready to filibuster to keep some of President Bush's judicial nominees off the bench. Are they doing it because of the prospective judges' religious beliefs? That is what one powerful Republican says. First the headlines.

(NEWS BREAK)

ABRAMS: We're back. A tape that Senator Bill Frist will be presented on Sunday, a videotaped statement on a program produced by the conservative Family Research Council accusing Senate Democrats of blocking some of President Bush's judicial nominees because they are opposed to judges who are -- quote -- "people of faith." Like many Christian conservatives, the Family Research Council wants to put an end to Democrats blocking some of the president's appointments by threatening a filibuster, but are the Democrats really holding up these judges because of their religious beliefs?

"My Take" -- look, I think the Democrats need to be intellectually honest here and concede that in part they are opposed to some of these judges because of their strong religious beliefs. There is no such thing as a judge who comes as a blank slate. But with that said, it's also entirely fair to scrutinize and possibly reject a candidate for the appellate courts who elevates his or her religious beliefs however sacred over the law of the land. If those religious beliefs come to define their legal rulings, that not an attack on their faith, as Frist and others claim, it just reflects an inability on the part of the judge to let man's law rather than God's law define their positions.

Jay, do you disagree with me?

SEKULOW: Well I'll tell you where I disagree with you, Dan. I think that -- first let me tell you where I agree. You can't ignore the fact that faith is playing a role in this. I mean it would be ridiculous to ignore that. I agree...

(CROSSTALK)

SEKULOW: But number two, what is it that is motivating these groups? If someone is going to follow the rule of law -- and some of these judges have already been on other courts, the California Supreme Court in Janice Rogers Brown situation, Texas Supreme Court for Priscilla Owen, Bill Pryor has already been on the 11th Circuit Court of Appeals. They are following the rule of law. They're not ignoring precedents because of their religious faith.

Why don't we all just be honest and say this is about one thing and that is abortion. That you read the Web sites and there were statements coming out from the National Abortion Rights Action League, the ACLU, Planned Parenthood -- and in fact the only one that's being honest about all of this I think is my friend Barry Lynn. He tells you what he thinks is going on here, but this is all about abortion.

(CROSSTALK)

SEKULOW: They don't want pro-life judges on the bench.

ABRAMS: Here is...

(CROSSTALK)

ABRAMS: Hang on one second. I'll let you respond. But here's what bothers me. For example, you mention William Pryor nominated the 11th Circuit. He told the Christian Coalition -- quote -- "we derive our rights from God and not from government."

(CROSSTALK)

SEKULOW: So did Thomas Jefferson, by the way...

(CROSSTALK)

SEKULOW: ... in the Declaration of Independence.

(CROSSTALK)

SEKULOW: ... truths are self-evidence. They come from the creator to God. That's (INAUDIBLE).

ABRAMS: Well that's different than saying not from government...

(CROSSTALK)

SEKULOW: Well no, government -- no, that's actually...

(CROSSTALK)

SEKULOW: ... exactly what John Locke said. And when you read...

(CROSSTALK)

ABRAMS: Sorry, I thought you were talking about Jefferson...

(CROSSTALK)

ABRAMS: OK, not about Jefferson...

(CROSSTALK)

ABRAMS: All right...

SEKULOW: No, Jefferson said that too.

(CROSSTALK)

SEKULOW: That's why you couldn't take the rights away. If they came from...

ABRAMS: Right.

SEKULOW: ... the government, government could remove them, so that's the distinction. Those are fine distinctions. To reject a judge because of that statement I think is pretty dangerous.

ABRAMS: Well...

(CROSSTALK)

ABRAMS: Go ahead.

LYNN: If can I jump in here and bring this down a little bit closer to contemporary times, the truth is if you look at the 204 judges that have already been approved, nominated by President Bush, approved by the Senate, under the standards set by the president, he said two and a half years ago he would not nominate anyone who did not believe in God. And in fact, believed that our rights come from God. So all of these people...

SEKULOW: That is not true.

LYNN: ... are people -- yes, he did. He said it in Canada. All of these people are people of faith...

(CROSSTALK)

LYNN: ... and so, why is it there are Roman Catholics...

SEKULOW: He couldn't see how you could be president without...

LYNN: ... there are -- excuse me -- there are evangelical Christians, Jay, in all of those 204 judges...

SEKULOW: Sure.

LYNN: Can you name a single atheist who...

(CROSSTALK)

ABRAMS: Let me ask you a question...

(CROSSTALK)

ABRAMS: ... though, Reverend Lynn...

(CROSSTALK)

ABRAMS: Isn't - but you would concede, would you not, that this is about how deeply people feel about their faith? Meaning -- what I said at the outset, meaning if they're going to put their faith over man's law, that's still about faith.

LYNN: No, it is and to that degree, you are right. That is to say I think the people who are filibustered are the people who many members of the United States Senate think cannot separate the intensity of their religious belief from their duty as a federal judge. Now most of the people, again, that have been nominated and selected are probably pro- choice in their attitudes. The difference is many of them, I believe, could in fact separate the intensity of their belief from the role that they have to play as judge...

(CROSSTALK)

LYNN: ... Jay, I'd be surprised if you disagreed with...

SEKULOW: Well let me tell you where I disagree and this is a -- it's a philosophical issue and that is this. The idea that if someone takes their religion so seriously that it's going to impact their decisions and that disqualifies them is pretty dangerous. None of these judges are going to disregard the law. That's why we have an appellate review process...

LYNN: Not in the Supreme Court you don't.

SEKULOW: ... United States -- no, of course not, but look, the most conservative justice of the Supreme Court of the United States was clearly one of them, Justice Scalia is a man that follows the rule of law. He takes his faith very seriously. The idea that this is now a disqualification or that we're having a national great...

LYNN: It's not...

SEKULOW: ... television program that says, gee, you know Senator Frist is giving a video in a church, is that a violation of separation and church and state...

LYNN: It's not...

(CROSSTALK)

SEKULOW: This is crazy.

(CROSSTALK)

LYNN: Wait a minute. I never said that. What I said that Bill Frist should not be associated with a movement...

SEKULOW: Why?

LYNN: ... that argue -- wait a minute -- that argues that the filibuster is in fact against people of faith. That is empirically wrong. If you add up the numbers, it's a completely false statement. I don't think Senator Frist is doing himself any good or the argument about the qualifications...

ABRAMS: Yes.

LYNN: ... of judges by appearing in what is not really a religious service, is may be on a Sunday night and it's going to be in a lot of...

ABRAMS: Yes.

LYNN: ... Baptist churches, but it's really a political pep rally...

(CROSSTALK)

UNIDENTIFIED MALE: ... perfectly legal of course.

(CROSSTALK)

ABRAMS: Yes...

(CROSSTALK)

ABRAMS: I don't even think Jay would dispute it's a political pep rally...

SEKULOW: Oh sure, but look...

ABRAMS: Yes. Yes. All right...

SEKULOW: ... churches don't have to divorce themselves...

ABRAMS: I got to...

(CROSSTALK)

SEKULOW: ... from the political issues of the day.

ABRAMS: I don't want -- I got to wrap it up.

SEKULOW: Yes.

ABRAMS: That's a separate issue for another day on the question of you know...

UNIDENTIFIED MALE: Yes.

ABRAMS: ... politicking, et cetera, at churches. Two great guests, Jay Sekulow and Barry Lynn...

SEKULOW: Thanks a lot.

LYNN: Thank you.