THE CHARLIE ROSE SHOW
July 1, 2005
CHARLIE ROSE, HOST: Welcome to the broadcast. Tonight, a consideration of the retirement of Associate Justice Sandra Day O'Connor from the Supreme Court. We'll talk to a famed litigator David Boies, two men who'll be involved in a confrontation over a confirmation, Jay Sekulow and Ralph Neas, and three journalists who'll be covering this story, Nina Totenberg, Charles Lane and Jeffrey Rosen. All of that, Sandra Day O'Connor and changes in the Supreme Court, next.
Joining me now from Washington is Ralph Neas. He is president and CEO of the liberal group People for the American Way. Joining me now from Atlanta is Jay Sekulow. He is chief counsel for the American Center for Law and Justice. He's also advising President Bush on potential Supreme Court nominees. I'm especially pleased to have both of them here.
Jay, I begin with you in Atlanta. Tell me what -- what is the choice that the president faces? What is going through the president's mind?
JAY SEKULOW, CHIEF COUNSEL, AMERICAN CENTER FOR LAW AND JUSTICE: Well, you know, there was so much anticipation that the chief justice was going to be the first to announce his resignation, but with Justice O'Connor now tendering her resignation today, what the president is looking at is a shift on the court, because you've got a very closely divided court on so many issues -- not just the cultural issues, but some of the economic issues and the federalism issues. I mean, a very closely divided court. And who is usually the pivotal justice is Justice O'Connor. So, the president is looking at a direction shift possibly in the court. So, this selection is very, very important.
CHARLIE ROSE: He is not going to nominate, as I hear you, someone like Justice O'Connor, except perhaps gender?
JAY SEKULOW: I think what we are going to see is the president nominating someone with the judicial philosophy that mirrors what he has talked about and who he's nominated for the court of appeals. And that's the kind of nominee you're going to see coming forward from the president.
I don't expect any difference as far as judicial philosophy. He wants someone that's going to be conservative in their judicial philosophy, that understands the role of the judge, and the role of the judge is not to legislate from the bench. So, that's what I think it's going to be.
CHARLIE ROSE: If the president appoints someone that is akin to the kind of justices he has appointed to the court of appeals or the district courts, Ralph, will he likely get his way in the Senate?
RALPH NEAS, PRESIDENT & CEO, PEOPLE FOR THE AMERICAN WAY: Charlie, I hope and pray that he is going to put a mainstream conservative on the Supreme Court. But he has said on many occasions that his favorite justices are Thomas and Scalia. And he has been naming judges to the circuit courts of appeals that mirror the judicial philosophy of Scalia and Thomas.
If such a nominee comes before the Senate, there is going to be a huge confrontation. It will be a titanic clash between those who want to protect the legal and social justice achievements of the last 70 years, and those who want to reverse those achievements.
CHARLIE ROSE: Jay, I mean I assume that - that .
JAY SEKULOW: Well, I mean I -- I disagree with Ralph's analysis here on two fold. Number one, I don't think conservative judges necessarily undo social achievement. I think that -- that's a number one, an oversimplification, and two, not historically accurate.
You mentioned previously when you had David Boies on as a guest, that in the Miranda decision that was up, it was the chief justice after all who said Miranda needed to stay in place. So, to say that a conservative is going to turn back the clock in a social context I think is wrong.
Now, you take a look at some of the issues the court just decided -- the issue, for instance, in the Ten Commandments cases. It was a 5-4 decision. No doubt that if you had a justice that was more akin to this judicial philosophy of Justice Scalia or the chief justice or Justice Thomas, that the decision in Kentucky goes for the Ten Commandments staying.
So, I think, sure, it's going to be - I think you are looking at a significant shift here, but to say that the president is going to readjust his view of conservatism because it's a Supreme Court nominee, I just don't accept it.
CHARLIE ROSE: Do you think, Jay, that Justice Scalia could be confirmed by the Senate if he was coming up now?
JAY SEKULOW: I think he would. I mean, Harry Reid said that, and I think that you may disagree-- some people may disagree with Justice Scalia. I have a good record with Justice Scalia. I've had about - I've argued 12 cases up there, have been involved in about another six. So, I think he's been with me 17 times. So, I'm a big fan of Justice Scalia.
But I do think he'd be confirmed. He is -- no one can question his intelligence, his insight and his capabilities. And you may see in the future, because, you know, we've all been focusing on the chief justice's possible resignation; now we have Justice O'Connor - but if the chief justice were to resign before the beginning of the term, I wouldn't be surprised to see someone like Justice Scalia elevated to chief.
CHARLIE ROSE: Although, the rumor has been that they would not elevate from the court.
JAY SEKULOW: Yes, there has been a rumor, but the rumor also was we're expecting the chief justice's resignation today, so ...
CHARLIE ROSE: Yes.
JAY SEKULOW: . so much for rumors.
CHARLIE ROSE: Scalia, Ralph, would he be, because he is a conservative, because he has voted the way he has, and because people do respect his intellect -- would he be confirmed today or would you mount a huge battle with other people who feel about these issues as you do?
RALPH NEAS: Charlie, I think there would be a huge battle in the Senate, and there would be tremendous opposition across the country against a Scalia elevation. They would be on grounds of judicial philosophy. They would be on grounds of temperament and on ethics.
If the president decides to consult, as Republicans and Democratic senators have asked him to, if there's real consultation and there's a bipartisan consensus, a bipartisan choice, there will be not a fight. If he does name someone in the mode of Thomas and Scalia -- what we did was a study of all the Thomas and Scalia concurring dissents going back to 1992, 1991 and 1986 respectively. If Scalia and Thomas get one or two more justices who think the way they do, in terms of judicial philosophy, Charlie, more than 100 Supreme Court precedents are going to be overturned, affecting privacy, affecting equal opportunity, affecting the environment, consumer issues, reproductive rights. These are justices who, like Robert Bork, feel that they have an obligation, as Robert Bork said, the Supreme Court justice settle -- sets precedents. If there are precedents we disagree with and Justice Bork - excuse me, Judge Bork said there were dozens of precedents that he disagreed with, and it was his obligation if promoted to overturn them.
That's the way Scalia and Thomas think. That's what would happen. It would be a constitutional catastrophe.
JAY SEKULOW: You know, but, of course, history shows that in the Supreme Court, they do overturn precedents. I mean, you have cases where the court, for instance, said that black citizens were not citizens at all, were not even considered full voting members and had three-fifths authority in the Dred Scott case. It took a long time for the Supreme Court to overturn that, but the Supreme Court has a history of overturning something where they think they got it wrong in a particular case. So, that's not unusual. That's part of the Supreme Court practice.
I think what is critical here, Charlie, and what everybody needs to consider is who gets the authority to make the nomination? I understand what Ralph is talking about the consultation with the Senate, but the Constitution says President Bush, because he was elected by the people, gets to nominate a particular person for a justice. And the role of the Senate is advise and consent -- and Ralph knows this better than anybody.
Advise and consent does not mean a co-equal share of the process. The president gets to nominate, the Senate can say no, but they're supposed to debate the issue and vote - and hopefully, we will not see a filibuster in this kind of process that President Bush spoke of today, a decent process needs to go forward here.
CHARLIE ROSE: Will - will we see a decent process, Ralph?
RALPH NEAS: Charlie, Jay has the history a little bit wrong. The president being involved in the appointment of Supreme Court nominations was a last-minute compromise. Originally, it was only the Senate. The president was added in a compromise. It's a co-equal constitutional responsibility.
The Senate has rejected more than 20 percent of the Supreme Court nominees put before it. Fourteen of those 24 rejected did not get a vote. There is no constitutional obligation to have a vote.
I don't think there will be a filibuster, because I think - number one, I hope there is a consensus choice. If there is not, if it's a right- winger, I think a bipartisan majority of the senators will defeat that nomination.
If there is not a bipartisan majority, what I recommend, as has been done in the past -- there were two filibusters against Justice Rehnquist, one in 1971, one in 1986. There was a successful filibuster against Abe Fortas in 1968. If the Constitution's at stake, if more than 100 Supreme Court precedents are going to be overturned, yes, I would advise that any senator uphold his oath to the Constitution and use any parliamentary option at his disposal.
CHARLIE ROSE: Let me .
(CROSSTALK)
JAY SEKULOW: Janice Rogers Brown may not meet the test that you're talking about, Ralph, would Janice Roger Brown, who's now been appointed to the D.C. Court of Appeals, part of the compromise, would she meet the standard?
RALPH NEAS: Janice Rogers Brown and four others were part of a political compromise.
JAY SEKULOW: But would you accept her or no?
RALPH NEAS: Janice Rogers Brown - Janice Rogers Brown is to the right of Thomas and Scalia. We would definitely oppose her strongly.
JAY SEKULOW: OK. So much for the compromise.
CHARLIE ROSE: Let me just ask you .
RALPH NEAS: The compromise - the compromise took the nuclear option off the table. It allowed five people, three to go through, two probably not. There was no difference among the five. It was a political compromise. These 14 senators want consultation and a consensus choice. They don't want a confrontation and a real battle.
CHARLIE ROSE: On the question of overturning Supreme Court precedent - that's not by definition wrong, is it, Ralph? I mean, there are -- it has been the history of the evolution of the court.
RALPH NEAS: Yeah, you're absolutely .
CHARLIE ROSE: Go ahead.
RALPH NEAS: I'm sorry, Charlie, go ahead.
CHARLIE ROSE: No, you go ahead.
RALPH NEAS: No, please.
CHARLIE ROSE: No, that's .
RALPH NEAS: There is - there is - there is no question that on occasion, not very often, on occasion, Supreme Court precedents have been overturned. And Plessy versus Ferguson .
CHARLIE ROSE: Right.
RALPH NEAS: . is certainly a great example. What I'm talking about is a wholesale counterrevolution. Those who have the philosophy of Scalia and Thomas believe the Constitution has been in exile since 1937; that the commerce clause, the spending clause, privacy, the 14th Amendment, have all been defined erroneously, have been interpreted erroneously, and they -- if they have the votes, if there's a Thomas-Scalia majority, will overturn not one or two or 20 or 30, but more than 100 Supreme Court precedents based on their votes over the last 15 to 20 years.
CHARLIE ROSE: Do evangelical Christians have a candidate in this?
JAY SEKULOW: I don't know so much if it's a candidate, but I will tell you what they do have. I think they have a real sense of accomplishment, in the sense that the evangelical Christian community came out for the president, voted for the president and have been very pleased with the judicial nominations that he has made, and have been very pleased that the president has stuck with these nominees over very long periods of time for confirmation.
So what we're hoping, in talking with the evangelical community -- and I do that regularly -- the fact is, I think they're looking for a nominee in the mold of what the president has been putting forward in the court of appeals. And if they see that, they will be very pleased.
CHARLIE ROSE: Alberto Gonzales is somebody the president feels very strongly about. He has been his legal counsel. He has been on the Supreme Court of Texas. He's been legal counsel, as I said, at the White House, and - and now he is attorney general. You don't think he is going to be the nominee this time, because he's been too short in his tenure at the attorney general job?
JAY SEKULOW: Well, I think two reasons. One, he's just been the attorney general for five months, and we're in the middle of a war on terror, and the role of the Department of Justice is unprecedented as far as their involvement in a war. They've never had that before. They are now very involved in that.
So I think that's number one. He has only been there five months.
Number two, I think that as the president is looking for a nominee, you do have an historic situation. I don't think the president is bound or required -- I don't think Ralph would say this either -- you are not bound or required to select a woman as a nominee, but I think that is a factor here. I mean, Justice O'Connor was the first woman ever appointed to the Supreme Court of the United States. So that kind of -- I don't know if it is political pressure, but maybe just reality is setting in. So I tend to think -- and I may be proven wrong on this -- I tend to think that the president is looking at a whole host of nominees, and I'm not so sure that General Gonzales, at this particular point in it, is on that list. But look, only the president knows.
CHARLIE ROSE: How about Edith Jones? Is she on that list?
JAY SEKULOW: I would think that Edith Jones, Edith Clement -- both are on the Fifth Circuit -- are on that list. I would not be surprised if Janice Rogers Brown and Priscilla Owen -- they both have had previous judicial experience. You know, people are talking about that Edith Jones, well, she has been on the Fifth Circuit for a while, but when it comes to Priscilla Owen or Janice Roger Brown, they've only been on the court of appeals for the month, but both of them have served on the state supreme courts of Texas and California. These are big supreme courts with big influence, and they have been there for years. So they are not novices when it comes to judicial situations.
And also, Justice Rehnquist, now Chief Justice Rehnquist, was appointed to the Supreme Court from a slot at the Justice Department. He hadn't even served on the bench. So it's not a requirement that you be a judge.
CHARLIE ROSE: Ralph, your best judgment is we are going to have a battle royale here, aren't we?
RALPH NEAS: I certainly hope that the president does consult with the senators, Democrat and Republican. I hope they get a bipartisan nominee. I think it would be in the best interests of the country, especially when we're at war...
CHARLIE ROSE: Tell me who fits that...
(CROSSTALK)
CHARLIE ROSE: Does Mitch McConnell fit that definition? Who would fit that definition for you? A conservative?
RALPH NEAS: Arlen Specter. But to tell you the truth, Charlie, I am not going to give you a serious answer. Anybody that I would suggest, it really would be the political equivalent of the kiss of death.
Charlie, just a couple of points. Abe Fortas was successfully filibustered. If you go to the Web site of the United States Senate, there were 51 votes in his favor. Fourteen of the 24 Senate -- 14 of the 24 Supreme Court nominees that were rejected during our 217 years never got a vote.
There are plenty of precedents.
With respect to the right wing -- unfortunately, our president has promised Pat Robertson, Jerry Falwell, James Dobson and others that he would put someone on the court in the mode of Thomas and Scalia. That is why they supported him in 1999 and 2000. There is a promise.
I hope he breaks their pledge. I hope he takes the country's unity more seriously than his pact with the radical religious right, and that we come up with a consensus candidate that all Americans -- Democrats, Republicans and independents -- can support.
CHARLIE ROSE: My thanks to Ralph Neas and Jay Sekulow. Thank you both very much.
JAY SEKULOW: Thank you very much for having me.
RALPH NEAS: Thank you so much, Charlie. See you later, Jay. |