FOX News - Hannity - The Confirmation Hearings of Judge Sonia Sotomayor
On Hannity, ACLJ Chief Counsel Jay Sekulow discussed the issues surrounding the confirmation hearings of Judge Sonia Sotomayor with Attorney David Boies.
You can watch the interview here.
You can read a transcript of the interview below.
Hannity - FOX News
SEAN HANNITY: Supreme Court nominee Sonia Sotomayor took the stage today as her confirmation hearings began on Capitol Hill. Now she tried her best to be uncontroversial going so far as to directly contradict statements that she's made in the past.
(BEGIN VIDEO CLIP)
JUDGE SONIA SOTOMAYOR, SUPREME COURT NOMINEE: The task of a judge is not to make law. It is to apply the law. Court of Appeals is where policy is made. And I know, and I know this is on tape, and I should never say that because we don't make law, I know.
(END VIDEO CLIP)
HANNITY: Nonetheless, the Democrats on the Senate Judicial Committee could hardly control themselves, each of them eager to express their love and admiration for this nominee.
(BEGIN VIDEO CLIP)
CHUCK SCHUMER (D), NEW YORK SENATOR: When Sonia Sotomayor was growing up, the Nancy Drew stories inspired her sense of adventure, developed her sense of justice, and showed her that women could and should be outspoken and bold.
DIANE FEINSTEIN (D), CALIFORNIA SENATOR: You are indeed a very special woman. I believe you are a warm and intelligent woman.
RUSS FEINGOLD (D), WISCONSIN SENATOR: I think that the judge's nomination will inspire countless children to study harder and dream higher, and that is something we should all celebrate.
(END VIDEO CLIP)
HANNITY: Now that doesn't exactly look like a prelude to a rigorous confirmation hearing, so will the Republicans step up to the plate and challenge Judge Sotomayor on her many, many controversial rulings or will they allow the Democrats to roll out that red carpet?
And joining me now to discuss this and more, David Boies is the former attorney for Al Gore, and Jay Sekulow, chief counsel at the American Center for Law and Justice.
Guys, good to see you.
(CROSSTALK)
HANNITY: Both have argued before the Supreme Court on numerous occasions. First of all, so she comes in with a prepared statement. Totally contradicting what she had said earlier when she was.
DAVID BOIES, FORMER ATTORNEY FOR AL GORE: Oh no.
HANNITY: No, no, noh?
(CROSSTALK)
HANNITY: Oh, yes, she did.
BOIES: That's not so at all. Listen, everybody knows courts make policy. That's in applying the law. That's -- you can't not apply the law without looking at policy. The Supreme Court does it, and because Court of Appeals are in most cases the last place you go because the Supreme Court takes such few cases, they have to do it as well.
If you tell me that John Roberts is not making policy on the Supreme Court, I don't think you're being serious.
JAY SEKULOW, AMERICAN CENTER FOR LAW AND JUSTICE: I will tell you he's not because John Roberts understands that the role of a judge is to be a exactly that, a judge.
Here's the problem, David. She makes the statement today that Sean was talking about earlier. She makes the statement today that she's not going to be making policy from the bench. That's basically what she just said.
BOIES: She did not say that.
SEKULOW: That's what she said, sure.
BOIES: No, you've got -- don't distort the record. She didn't say that. She said she was going to apply the law. That's what judges do, but in applying the law.
SEKULOW: You think a judge should make policy decisions?
BOIES: But you know they do.
(CROSSTALK)
BOIES: You're not serious. You're not serious.
SEKULOW: But of course I am.
BOIES: If you're telling me that John Roberts and the Supreme Court doesn't make policy.
SEKULOW: I am telling you that he applies the law as a judge is supposed to do.
BOIES: Oh come on.
SEKULOW: He understands -- David, he understands the difference between his role as a judge.
HANNITY: Let me ask this.
SEKULOW: . and his role as a legislator.
HANNITY: In American legal system courts aren't supposed to make law or set policy. Don't we have coequal branches of government?
BOIES: You do. But what happens when you're tying to do interpret the Constitution? What happens when you're trying to interpret the law?
SEKULOW: You make a ruling.
BOIES: You make a ruling but how do you make that ruling?
SEKULOW: Based on the precedent and based on the law. You don't say I don't like the policy, the decision of the Congress, I'm going to overturn it.
BOIES: If you did -- if you did it just on precedence, you wouldn't have the current majority of the Supreme Court overruling past decisions.
SEKULOW: Of course they do.
BOIES: That's policy.
SEKULOW: No, it's not. No, it's not. It's a..
BOIES: What is it then?
SEKULOW: It's a constitutional analysis.
(CROSSTALK)
SEKULOW: Sean, here's the problem. Judge Sotomayor, who is -- I'm not questioning her intelligence, I'm not questioning her integrity, I'm going to question judicial philosophy. Here's what she said in a meeting of the American Constitutional Society. She makes the statement, you've played it many times, which I think is good for people to hear.
I know, I know, we don't make policy and laughs about it and then says we do make policy.
(CROSSTALK)
SEKULOW: Then she said she doesn't.
BOIES: Because it's a joke.
SEKULOW: You don't get to do it both ways.
BOIES: Absolutely, she does because it's a joke. And you.
SEKULOW: I don't think that's.
BOIES: Everybody knows it.
SEKULOW: I don't think it's a funny joke.
(CROSSTALK)
HANNITY: I don't think it was a joke as much as I think it was a revealing insight into her real philosophy, but I know I'm not allowed to say it, I've got to play this game. And then she goes up.
(CROSSTALK)
SEKULOW: David, if a judge's job, if she really believes it's to set policy, then why does she say oh, I know I'm not supposed to say it but I'm going to say it.
BOIES: Because there are people like you who are going to make things of it.
SEKULOW: Oh come on.
BOIES: And you know better. You absolutely know better.
SEKULOW: Yes, I know better. I know better the role of a judge and the role of a legislator.
BOIES: You really know better than that. And it really is not responsible to do this in this kind of important session.
HANNITY: Let me ask this. Is empathy supposed to be the criteria? In other words, if she talks about a wise Latina woman that can make better decisions than a white male, is that troublesome to you?
BOIES: What she said, what she said, and you've got to listen to the context.
HANNITY: She said it seven times.
BOIES: No, five. But who's counting?
(LAUGHTER)
(CROSSTALK)
BOIES: You didn't hear her say she misspoke.
HANNITY: No, no. But the administration said that.
BOIES: You didn't hear her say she misspoke. And look, first, you've got to look at the context. The context is civil rights cases, and second, what she's talking about is you need more diversity inside in those cases, and what she said is I hope. She didn't say people can't. What she said is, I hope my experience allows me to make the best.
HANNITY: She said as a wise Latina woman would come to a better conclusion than..
BOIES: I would hope. Don't leave out the beginning, though.
HANNITY: OK.
BOIES: What she's saying there is, what I hope is a wise Latina woman with.
HANNITY: All right.
(CROSSTALK)
SEKULOW: Yes, but there's a whole group of non-minority Supreme Court justices that have been very protective of civil rights, so to make a statement about -- and I'm not -- again, I'm not impugning her intelligence, I'm not impugning her as a judge. I think it's misconstruing her role as judge when you make those statements. That's the problem.
HANNITY: Let me ask you this. Let's reverse it. What if it was a white male that said that?
BOIES: I think it is always more troubling when the people who have not been discriminated against take that position, and look, we're three white males sitting around here saying oh, we've got to be careful about people saying this kind of things.
I think it is exactly right that everybody is a product of their experience, of their background, and I think it's good that people recognize that and she speaks out on that.
SEKULOW: Here's the difficulty, and I don't disagree that, by the way, diversity. I think diversity of thought is fine on the Supreme Court. Look, there's consequences to an election. The president of the United States is Barack Obama. He then has the authority under the Constitution to nominate judges to become justices of the Supreme Court. He's done that.
Now the role of the Republicans in the Senate, the judiciary committee, and I hope what Jeff Sessions said today at least sparks the interest of some of the other Republican senators, is that they ask real questions. This judge deserves, by the way, in my view, a fair up or down vote and fair questions.
HANNITY: All right.
SEKULOW: But real questioning.
HANNITY: But there's a lot at stake here. I mean -- you know, are we going to give -- Mirandized terrorists on the battle field, private property right is at stake, freedom of speech rights are at stake. There's a lot here with -- this is a lifetime appointment. I guess when I..
SEKULOW: Presidential election.
HANNITY: When I look at the New Haven firefighter case, and I've interviewed the firefighters in that case, and I'm thinking, you know, even though it was a 5-4 Supreme Court again overturning her Circuit Court decision which wasn't even a decision, you know, 9-0, they basically said that she didn't handle the case properly, that it deserved more attention than that.
Is that troublesome to you that -- for example, here's a guy with dyslexia that spent $1,000 on materials, that hired people to read to him, that actually got to the point where he made the promotion.
Why should he be discriminated against and why should she dismiss that? Isn't that troublesome?
BOIES: Just remember 8 out of the 13 judges, federal judges, who looked at this case decided the same way she did. This is not something where she's an outlier. The Supreme Court in my view and in the view of a lot of people including a unanimous second circuit panel changed the law. Now.
SEKULOW: But nine justices of the Supreme Court disagree with her analysis.
BOIES: No. That's.
SEKULOW: No, they did.
(CROSSTALK)
SEKULOW: She should not have gone for summary judgment.
BOIES: It's a 5-4.
SEKULOW: 9-0 on her analysis.
BOIES: 5-4.
SEKULOW: 9-0.
BOIES: 5-4.
SEKULOW: It doesn't matter, she got overturned.
(CROSSTALK)
BOIES: You're probably going to tell me that Bush-Gore was 7-2 as supposed to 5-4.
SEKULOW: No, it was 5-4. You did a good job.
HANNITY: By the way, you did do a good job on that. I'm not.
SEKULOW: No, I said he did a great job.
HANNITY: You both have argued before the Supreme Court many, many times, and I can see why.
(LAUGHTER)
HANNITY: All right.
SEKULOW: We're friends. We're friends.
HANNITY: Thank you. Thank you both for being with us.
SEKULOW: Thanks, Sean.