Senators Leahy and Hatch on "This Week"

Senators Leahy and Hatch on "This Week"

By This Week - May 3, 2009

STEPHANOPOULOS: Which brings us to our headliners, Senator Patrick Leahy, the chairman of the Senate Judiciary Committee, and its former chairman, Republican Orrin Hatch.

Gentlemen, welcome to you both. And Senator Hatch, let me begin with you. What did you make of the criteria the president laid out?

HATCH: Well, it's a matter of great concern. If he's saying that he wants to pick people who will take sides -- he's also said that a judge has to be a person of empathy. What does that mean? Usually that's a code word for an activist judge.

But he also said that he's going to select judges on the basis of their personal politics, their personal feelings, their personal preferences. Now, you know, those are all code words for an activist judge, who is going to, you know, be partisan on the bench.

STEPHANOPOULOS: Now, he did also say he wants someone who respects the rule of law and the limits of the judicial role...

HATCH: He did say that.

STEPHANOPOULOS: So it sounds like you're saying that you think there's a tension between following the law and following your feelings when you're a judge.

HATCH: Well, I don't think there should be a litmus test or any set of litmus tests when you pick people for the high court, and I suspect that the president understands that. He's a very bright guy, charismatic, intelligent, likable, and I'm hoping that he'll pick somebody of great dimension.

We all know he's going to pick a more liberal justice. Their side will make sure that it's a pro-abortion justice. I don't think anybody has any illusions about that. The question is, are they qualified? Are they going to be people who will be fair to the rich, the poor, the weak, the strong, the sick, the disabled, and yet give justice to those who may not be...


STEPHANOPOULOS: Chairman Leahy, let me bring you in on this, because what Senator Hatch is saying there I've heard from a lot of other conservatives, this fear that the president's focus on empathy is a code for bringing a judicial activist to the court.

LEAHY: I've known President Obama long enough. He doesn't need to use code words. He speaks very plainly and very directly. I think that's why he won such a resounding victory in November.

I talked with President Obama shortly before he did that press conference, and I think I have a pretty good sense out of the meeting with him when I returned to Washington from Vermont -- I have a pretty good sense of what he has in mind for a justice. What I would argue...


LEAHY: What I would argue...

HATCH: I would like to know that, Pat.


STEPHANOPOULOS: What I would argue is you walk into the Supreme Court, over the doorway there is a great big piece of Vermont marble, and engraved on it, it says "equal justice under law." That's what you want to have.

We've had a very activist court. We had an activist court that made a decision that allowed employers to covertly discriminate against women so that women wouldn't get paid equally. We in the Congress reversed that with a law, in fact, the first law that President Obama signed into law. I think he wants to have somebody to treat people all the same, whether they're Republicans, or Democrat, men, women, or whatever they may be.

STEPHANOPOULOS: Let me press on that a little bit, Senator Leahy, because you have spoken with the president about it. I just want to know a couple of things about that. Number one, did you recommend any specific candidates to the president? And number two, because others have not been shy about recommending a potential candidate. Your colleague Senator Schumer has said the president should consider -- highly consider a Latino choice. I think there is a wide expectation throughout Washington that the president will pick a woman. Is that your understanding, and does President Obama risk a backlash if he doesn't pick a woman?

LEAHY: Well, I think one of the reasons why the president and I get along well is that we have conversations; you don't hear about them. You don't read about them afterward.

I will make recommendations, some specific recommendations to him. I've also recommended that he sit down with both the Republican and Democratic leadership and talk about this.

Now, ultimately he's the one that has to make the choice of who he wants to nominate. We in the Senate then have to decide whether we will consent to that nomination, but I think he's eager to seek the advice of senators of both parties. I think he has some very -- some people that he would like to see -- the type of people he'd like to see.

Remember, he was a constitutional law professor.

STEPHANOPOULOS: I do remember that. Should it be a woman, Senator?

LEAHY: I would like to see certainly more women on the court. Having only one woman on the Supreme Court does not reflect the makeup of the United States. I think we should have more women. We should have more minorities.

I would like to see more people from outside the judicial monastery, somebody who has had some real-life experience, not just as a judge (inaudible) insulated...

STEPHANOPOULOS: Let me bring Senator Hatch back in on this, because there are a lot of names that are being bandied about right now. Three of the most prominent names that are being mentioned are two appeals court judges. Sonia Sotomayor, she serves out of New York. Also, Judge Diane Wood, serving out of Chicago, another member of the appeals court. And the new solicitor general, Elena Kagan.

And some conservatives have already taken off on these choices. Let me show one. Wendy Long from the Judicial Confirmation Network says Obama could make it even more of a far-left judicial activist court for a long time to come if he appoints radicals like Diane Wood, Sonia Sotomayor and Elena Kagan. A new justice in this mold would just entrench a bad majority for a long time."

Do you share that view?

HATCH: Well, I share the view that he should not appoint radicals to the court and I share the view that he should appoint somebody who basically will obey the law...

STEPHANOPOULOS: But are those women radicals?

HATCH: ... and not put their own policy preferences into law. And that's what bothers me about some of the comments that the president has made. He's bright enough to know that those comments basically indicate that politics, preferences, personal preferences and feelings might take the place of being impartial and deciding cases based upon the law, not upon politics.

STEPHANOPOULOS: All three of those women were confirmed to their current positions with the support of many Republicans, including you. Are they radicals?

HATCH: I don't think they're radicals, but there's no question that they are on the far left of the spectrum. And to be honest with you, I don't expect the president to pick somebody in the center or on the far right. But, you know, it would be a slam dunk if he picked somebody who was center-left like Souter. Souter became very liberal, but he also stood for a lot of principles.

STEPHANOPOULOS: You famously said -- you suggested to President Clinton that he should pick Justices Breyer and Ginsburg. You wrote about that in your book.

HATCH: Right.

STEPHANOPOULOS: Do you have any recommendations for President Obama?

HATCH: No, I'm not going to make any recommendations unless he calls me. If he calls me, I'd be happy to sit down with him. We get along well. I've been out to the White House a number of times. I have a great admiration for him and his abilities. I hope that he will pick somebody who will, like I say, not put their own personal predilections into law, but follow the law and do what really is right.

STEPHANOPOULOS: Senator Leahy, let me bring you back in on this. You heard what Senator Hatch said there. Meanwhile, on the left of your party, you're hearing a lot of liberals say the president shouldn't pay any attention to the Republican Party on this pick. He should pick a full-throated liberal, someone who is really going to move the court. One example comes from Nan Aron of the president of the Alliance for Justice. She says, "Even before Senator Arlen Specter announced he was changing parties and Al Franken's Minnesota victory was clear, Republicans in Congress were losing strength as fewer voters identified with their agenda. They should not be allowed to stand in the way of a nominee who will uphold the Constitution."

Do you think the president should follow that course? Probably will have 60 votes soon. Pick someone who can get there on Democratic votes alone?

LEAHY: It takes 51 votes to confirm somebody, and I would assume that -- we never filibuster justices of the Supreme Court. We don't do it for...

STEPHANOPOULOS: You filibustered Justice Alito, didn't you?

LEAHY: No. We don't filibuster for either side, and so we have -- there's going to be a vote, up or down. I fully expect that. I think the last time there was a kind of a successful filibuster was Abe Fortas, and that was a Democratic...


STEPHANOPOULOS: Democrats did try to filibuster Justice Alito, if I remember correctly, sir.


LEAHY: There was a cursory vote that everybody knew would not succeed on the motion to proceed.

LEAHY: I mean, now we're getting down into the weeds. The fact is, Justice Alito, I did not vote for him. Senator Hatch did. He got both Democratic and Republican votes, just as Chief Justice Roberts, whom I did vote for, got both Democratic and Republican votes.

The fact of the matter is, we will have an up-or-down vote on whoever it's going to be, and I would hope that the president would go with his instincts.

Look what he's done with his Cabinet. He's had pretty darned good Cabinet choices, and I think he's going to make a very good choice here.

You will hear a lot on the far right or the far left who will say who he should or shouldn't go with. Remember, a lot of the left-wing groups picketed, actually picketed the Senate building that I'm in against me, because I was going to vote for David Souter. They said it would be terrible, the end of the world if we confirmed David Souter. Now those same groups think David Souter was a great justice.

The fact of the matter is that the president will make a good choice just as he has with his Cabinet.

STEPHANOPOULOS: He wants this in place by...

LEAHY: Then we have to vote for it.

STEPHANOPOULOS: He wants this in place by the first Monday in October, as you know, and that would mean that getting this done, he hopes, the White House hopes by the August recess. Is that possible?

LEAHY: Well, one, we certainly will have somebody in place. It would be irresponsible if we didn't have somebody in place by the beginning of the October session.

I'll decide when we'll have the hearing on the person after they have been named and after I consulted with whoever -- maybe Orrin could tell me who is going to be the ranking member...

STEPHANOPOULOS: You set me up there, Senator. I want to bring Senator Hatch back in on this.

LEAHY: On the Republican Party. But I will consult with the Republican leadership as well as the Democratic leadership. I will set a date for this, but I want to make sure everybody has a chance to see who the president's nominated and have a chance to see their background.

So, Orrin, tell me, who is going to be leading the Republicans?

STEPHANOPOULOS: Go for it, Senator.

HATCH: Let me just say one other thing. Yes, let me say one other thing...


LEAHY: It's a good question.

STEPHANOPOULOS: We're going to get an answer too.

HATCH: I'll try and answer that, but what is interesting here is that President Obama himself voted against both Roberts and Alito. Now, these are two of the best nominees I've seen in my whole time here, and I have had an influence on everybody except Stevens, and so has my friend Pat.

And that worries me a little bit. Pat voted for Roberts. He did vote against Alito, and they did want to filibuster Alito, no question about that, and it was along that vein.

Now, I suspect that Grassley has first choice to become the ranking member on Judiciary.

STEPHANOPOULOS: You actually have first choice if you seek the waiver. You're not going to seek the waiver?

HATCH: No, I do not -- well, no, of course not. But Grassley has first choice. Then Kyl if Grassley stays on Finance. And if Kyl stays in leadership, then Jeff Sessions . So any of those three could wind up being...

STEPHANOPOULOS: Are you expecting then Senator Sessions to be the ranking member?

HATCH: Well, I don't know. I know that he and Senator Grassley are trying to work out something, and we'll just have to see what happens. But I suspect any of those three will be just fine.

STEPHANOPOULOS: Terrific. Thank you both very much for your time this morning.

LEAHY: And I could work with -- I could work with any one of those -- any one of those senators. They're long-time friends. We'll work out things.

HATCH: Then why did you give me such a rough time, Pat, all those years?


STEPHANOPOULOS: You guys continue this off camera. We're out of time right now. LEAHY: You and I worked out (inaudible).


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