FOX News - Hannity - President Obama Faces Judicial Test: Replacing Justice Souter

ACLJ Chief Counsel Jay Sekulow discussed the retirement of Justice David Souter with Sean Hannity on FOX News.

You can watch the interview here.

You can read a transcript of the interview below:

Souter Replacement; Taking Stock of Obamanomics
FOX News - Hannity
 
SEAN HANNITY, FOX NEWS  HOST: Tonight .
 
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BARACK OBAMA, U.S. PRESIDENT: I just got off the telephone with Justice Souter.
 
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HANNITY: Washington is rocked with news of a vacancy on the highest court of the land. Justice Souter plans to step aside, sending the White House searching for a replacement.
 
There is big news in the political world today, and that is our headline this Friday night, vacancy. Now after serving on the Supreme court for nearly 19 years, Associate Justice David Souter, the youngest of the court's four liberal members, has announced his retirement. Now, the surprising decision that came late last night is being greeted by liberals as an opportunity to solidify the left wing of the court, and, of course, conservatives are unlikely to miss the justice from New Hampshire, who turned out to be far more liberal than the first President Bush bargained for.
 
Meanwhile, President Obama in only his 102nd day in office, has the opportunity to put his mark on the highest court in all the land, and by all accounts, this president is likely to nominate someone even further to the left than Souter.
 
Now we know that because the president has given us clues about the direction he would like to take the court. Here is what then Senator Obama said at Planned Parenthood's national conference back in 2007.
 
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OBAMA: We need somebody who's got the heart to recognize -- the empathy to recognize what it's like to be a young teenage mom, the empathy to understand what it's like to be poor or African-American or gay or disabled or old.
 
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HANNITY: Now one thing is crystal clear that when it comes to the interview process, candidates can expect to endure a Roe v. Wade litmus test.
 
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OBAMA: Change means a president who will stand up for choice. Who understands that five men on the court don't know better than women and families and their doctors about what's best for their health.
 
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HANNITY: Now, for a White House whose record on vetting appointees is arguably the worst in our nation's history, the task before them is formidable. They better check those tax returns.
 
And I'm joined by two experts on the court, Jay Sekulow from the Center for Law and Justice and Ben Ginsberg is the former counsel to the Bush-Cheney campaign. Guys, good to see you.
 
JAY SEKULOW, CENTER FOR LAW AND JUSTICE: Good to see you, Sean.
 
HANNITY: Obviously a surprise, but not a disappointment to conservatives, who were very disappointed in David Souter.
 
SEKULOW: Well, Justice Souter became clearly one of the most liberal members of the Supreme Court. But Sean, I want to go back to something you said. I think you're looking at the next appointment by now of President Obama, just 102 days into his administration, and that appointment will probably make Justice Souter look like a conservative or certainly a moderate or a centrist. The names you hear are beyond activists. They're impositionists. They are going to impose their worldview on the Congress and they're going to use the courts to do it.
 
So I think we're looking at a very, very dramatic step. It may not mean much in the voting, but it's going to be the first of the steps to a very different Supreme Court.
 
HANNITY: Let me pick up on that, Ben. It is not going to mean much in terms of voting, but the actual opinions that set precedent, that's where it's going to have a long-lasting impact, isn't it?
 
BEN GINSBERG, Well, certainly in the dicta, which is what all lawyers look at for sort of guidance of where the court's going in the future. I think this is more of a situation where they're doing this sort of doing an exchange for a newer model. This is not going to be moving from a Smart Car to a Cadillac in terms of the brand of justice that you get, but, boy, it certainly is going to have a long-term impact on this court. And you get the feeling that this is Barack Obama looking in the mirror and saying, "If I could be on the supreme court, too, who would I pick that's most like me?"
 
HANNITY: And Jay, look, why would we expect anything but someone extremely radical, considering he's gone so radically left in the economy, a socialist economy, and we'll get into that in the next segment, so radical on national security, embracing world dictators, cutting back on our defenses. So I would think the Republicans on principle here have got to follow the Democrats' model, and that is, they ought to be scrutinizing and informing the American people exactly the type of justice they can expect.
 
SEKULOW: And they'd better be asking the hard questions here, too, Sean. The thing we need to see happen in the Senate Judiciary Committee is that the Republican leadership within the Republicans on the Judiciary Committee, they'd better ask the hard questions, because, you're right. You're looking at judges that will probably be nominated, that are transnationalists, that believe that international law should be superior to domestic law in the United States. They're going to impose their view as to how they would like to see the Constitution interpreted. And the Republicans on the Senate Judiciary Committee need to puss these nominees through the paces. Remember, Senator Obama when he was the senator from Illinois voted to - he wanted to have a filibuster against Sam Alito, Justice Alito. So I think what has to happen here is real questions have to be asked. At the end of the day the president gets to nominate and appoint. There is no doubt about it. The Senate's role is advise and consent. But real questions need to be asked.
 
HANNITY: Let's go back to this quote that we played earlier, Ben, if we can. "We need somebody who has the empathy to recognize what it's like to be a young teenage mom, the empathy to understand what it's like to be poor, African American, gay, disabled and old."
 
While on the surface, people maybe don't understand the court, but it's not the job of a Supreme Court justice or any judge to do anything other than interpret the Constitution and apply the law, not to legislate from the bench. Doesn't that sound like he is advocating judicial activism in that statement?
 
GINSBERG: It sure isn't strict constructionism and it sure isn't letting the law speak. It is going to be the Obama brand of judicial activism that's going to be -- that's going to be enforced. And when you look at the list of people who's being talked about, it's clear that there's been a lot of pent-up Democratic bench strength sitting there for the last 15 years waiting to get on the court. And what's important for Republican senators is to remember the confirmation hearings and the questions that were given to Alito and to Bork and to not repeat sort of what they did with Ruth Bader Ginsburg.
 
HANNITY: I'll never forget what Julianne Malveaux (ph) said about Clarence Thomas. That she hoped that his wife would feed him more eggs and butter and that he'd die at a young age as an African American. Some despicable things. What they did to Robert Bork was despicable as well here. But in the case of Roberts and Alito, in the case of Roberts in particular, the Democrats did set up, Jay, a litmus test. And Barbara Boxer wasn't shy to say there is a litmus test on abortion, same with Mikulski and Clinton and Cantwell and Leahy and Joe Biden. They all supported a litmus test. So would Republicans be justified in having a litmus test in reverse?
 
SEKULOW: You know, here's what I think the Republicans need to do, Sean. They need to ask the real questions about do you understand your role as judge. And the problem with this litmus test -- and you're absolutely right. You're going to see -- there is no doubt - I mean, I cannot imagine anyone watching this broadcast or that's familiar with the court at all -- and I do a lot of work before the Supreme Court in the United States -- is thinking for a moment that President Obama is going to appoint somebody that might be pro life. But I think what you've got to realize is if you take the partial birth decision, a 5-4 decision, one justice -- although in this particular case, because Justice Souter dissented, wouldn't make a difference, but the next one sure could. And the fact of the matter is when you look at this quote, "litmus test" that they're going to apply, we know what they're going to apply. As Ben just said, you look at the names that are being at least floated, and these are people that have an impositionist world view on their judicial philosophy and that's going to take the court slowly into a different direction.
 
HANNITY: Ben, let's inform our audience. Who are some of the names that you hear being bantered about? And what do you think of them?
 
GINSBERG: Judge Sotomayer is certainly one .
 
HANNITY: From New York.
 
GINSBERG: Who's been talked about a great deal from New York. You hear a number of people, both district court and appellate judges, that Obama knows from Illinois whose names are being floated a great deal. You hear people who he knew from Harvard Law School, Elena Kagan who is the dean of Harvard and is now the solicitor general is being named prominently on the list. What this list reflects, though, is, again, sort of the cream of the liberal crop. And there are tactical issues that Republicans need to be aware of, and the main tactical issues are the number of votes that you have in the Senate. So while it makes absolute sense to question this whole list of judges that we're talking about very, very hard on what they believe, there are going to be some realities in the vote counts that Republicans are going to have to keep in mind, too.
 
HANNITY: Jay, your thoughts on the names that you're hearing being bantered about.
 
SEKULOW: Well, Sonia Sotomayer is certainly one of the ones being talked about the most. A very liberal member of the second Circuit Court of Appeals. Elena Kagan as Ben said is being mentioned also. She never argued an appeal. She's the solicitor general for less than a month. But he does know her from Harvard and knows her reputation. A bright woman, but has no judicial experience and no real appellate court experience of significance, at least before the Supreme Court of the United States. You hear others, as Ben said, you've got some of these district court judges from Illinois, and there could be some prices on the list as well. People we're not that familiar with. But you can rest assured of this, they're going to have a consistent judicial philosophy and it is going to mirror the president's.
 
HANNITY: I don't think there's any doubt of that. So he may get as many as three Supreme Court appointees, and although I don't see any .
 
SEKULOW: In his first presidential term, absolutely.
 
HANNITY: In his first presidential term, which is amazing. Really quickly, just for people that maybe don't understand the difference between judicial activism and originalists, in 20 seconds, Jay.
 
SEKULOW: What it is is an originalists looks at the four corners of the document and understands that they're interpreting a Constitution. Those that are judicial activists or impositionists, as I like to call them, they take the view that they're going to be the legislature and they're going to impose on the Constitution their view of how the law should be, not how the law is, and that's a dangerous move.
 
HANNITY: Ben, final thoughts?
 
GINSBERG: The final thoughts are this is a big moment for the Republicans and conservatives to show their mettle in putting the judges through their paces and being sure that the definitions that Jay just talked about are kept in mind and remembering that the role of justices, the role of judges and the role of the courts is to be strict constructionists.
 
HANNITY: Ben, Jay. Thank you both for being with us. Appreciate it.
 
GINSBERG: Thanks, Sean.
 
SEKULOW: Thank you, Sean.