Guest: David Boies, Pat Buchanan, Kim Gandy, Wendy Long, Jeff Lamkin, Peter Rubin, Daniel Horowitz
DAN ABRAMS, HOST: Coming up, Justice Sandra Day O'Connor retires from the Supreme Court. Now for the first time, President Bush gets to appoint a justice—what could be the biggest political fight of his presidency.
ABRAMS (voice-over): She was the key swing vote on many controversial issues on everything from abortion to affirmative action. So how much will the court and this country really change? Will Roe v. Wade be overturned? Who will be her replacement? The future of the court and the country hangs in the balance.
Plus, breaking news in Aruba. Three men held in connection with the disappearance of Natalee Holloway have been charged with murder.
The program about justice starts now.
ABRAMS: Hi everyone. There are major developments in the Natalee Holloway investigation. We'll get a live from Aruba later in the show.
But first, President Bush says he will move quickly to replace Supreme Court Justice Sandra Day O'Connor. A nominee will be named in a matter of weeks. While many believe the more conservative chief justice, William Rehnquist, would leave the bench first, no, Sandra Day O'Connor became the first justice to retire in over 11 years. And the loss of a—quote—
“swing vote” on issues like abortion and affirmative action could mean more controversy over a possible replacement.
In a letter to President Bush, O'Connor wrote, this is to inform of you my decision to retire from my position as an associate justice of the Supreme Court of the United States effective upon the nomination and confirmation of my successor. It's been a great privilege indeed to have served as a member of the court for 24 terms. I will leave it with enormous respect for the integrity of the court and its role under our Constitution's structure.
She was the first woman to be appointed to the nation's highest court. President Bush praised O'Connor for her service, said he would move fast to nominate her replacement.
(BEGIN VIDEO CLIP)
GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: The nation deserves, and I will select a Supreme Court justice that Americans can be proud of. The nation also deserves a dignified process of confirmation in the United States Senate characterized by fair treatment, a fair hearing and a fair vote.
(END VIDEO CLIP)
ABRAMS: Already the battle lines are being drawn on Capitol Hill.
(BEGIN VIDEO CLIP)
SEN. TED KENNEDY (D), MASSACHUSETTS: If the president abuses his power and nominates someone who threatens to roll back the rights and freedoms of the American people, then the American people will insist that we oppose that nominee and we intend to do so.
SEN. JOHN CORNYN ®, TEXAS: Whoever the nominee is, the Senate should focus our attention on judicial qualifications not on personal political beliefs. We should engage in a respectful and honest inquiry not partisan political attacks.
(END VIDEO CLIP)
ABRAMS: That is before the president has even come up with a name. Joining me now with a look at what is about to come and what is already in this political battle, MSNBC's chief Washington correspondent, Norah O'Donnell.
NORAH O'DONNELL, MSNBC CHIEF WASHINGTON CORRESPONDENT: Hey. Well that is right. They are getting ready for the Senate slugfest and liberal and conservative activists sprung into action today. Any vacancy on the Supreme Court would have created a mega battle, but as one conservative activist told me because it is Justice Sandra Day O'Connor, a moderate, a swing voter, this is going to be in his words, World War III. We went behind the scenes with some of the activists who are going to be key in this upcoming nomination battle, which many people say might be the biggest battle yet of the Bush presidency.
UNIDENTIFIED MALE: (UNINTELLIGIBLE)
O'DONNELL (voice-over): Meet C. Borden Gray (ph), the man leading an unprecedented coalition of conservative groups.
UNIDENTIFIED MALE: ... I don't know if I am the godfather, but I am probably the senior member of this group.
O'DONNELL: Gray (ph) calls himself the air traffic controller...
UNIDENTIFIED MALE: The RNC has a call on Tuesday.
O'DONNELL: ... coordinating a network of conservatives prepared to spend tens of millions of dollars.
UNIDENTIFIED MALE: It's because we know the other side is well organized, extremely well organized and extremely well financed.
O'DONNELL: Gray (ph) is a battle-hardened veteran of the nomination wars. As White House counsel to President George H.W. Bush, he shepherded Justice David Souter and Justice Clarence Thomas through confirmation hearings. He now advises current White House counsel Harriet Meirs and was just at the White House last Friday advising Karl Rove. This year conservatives are so well prepared they have already launched this television ad.
UNIDENTIFIED MALE: Democrats will attack anyone the president nominates, but a Supreme Court nominees deserves real consideration.
O'DONNELL: Conservatives believe it was an instant attack that scuttled the nomination of Robert Bork. Less than an hour after President Ronald Reagan nominated him, the reaction was immediate.
UNIDENTIFIED MALE: Robert Bork's America is a land in which women would be forced into back alley abortions.
O'DONNELL: Leading the successful fight against Bork was Ralph Neas, who today leads a legion of liberals as head of People for the American Way.
UNIDENTIFIED MALE: You have a team of battle-tested veterans.
O'DONNELL: Neas' war room of 45 computers is already up and running.
UNIDENTIFIED MALE: It's our obligation to make sure that the American people know what's at stake and that we've got to be very careful that the right wing doesn't take over the Supreme Court and turn back the clock seven decades on the issues that they care about the most.
O'DONNELL: Today part of the liberal coalition, “Move on Pack” (ph), launched its first ad.
UNIDENTIFIED MALE: Now there is a vacancy on the Supreme Court. Will George Bush choose an extremist?
O'DONNELL: Now of course, all of this battling between the left and the right, if you will, is because they are all concerned about whether President Bush can create a conservative court or want Bush to create a conservative court. But it's very interesting because, as you may know, Dan, in circles there is a lot of talk about whether Bush could actually achieve this in his second term.
In the last 36 years, four Republican presidents have appointed seven of the nine justices, and yet this court, when it comes to social issues like school prayer, gay rights, abortion and affirmative action, has largely sided with liberals. And so that's why many believe there is so much at stake, especially since O'Connor, the swing voter, announced that she is retiring today—Dan.
ABRAMS: Norah, thanks a lot. Appreciate it. Have a good weekend.
Joining me now for a look at who the front-runners may be and how it may change the country. David Boies, attorney for Al Gore during his run for president in 2000, MSNBC political analyst and former presidential candidate Pat Buchanan, Kim Gandy, president of the National Organization for Women, former Supreme Court clerk to Clarence Thomas and counsel for the Judicial Confirmation Network, Wendy Long, and former clerk for Sandra Day O'Connor Jeff Lamkin.
All right, so let me start by asking each of you, how conservative will, should his first appointment be? Will the president look to his conservative constituency over everything else, David Boise?
DAVID BOIES, AL GORE'S FORMER ATTORNEY: I think I'm probably the least qualified to answer that question...
ABRAMS: Pat Buchanan—I will come back to you. Pat Buchanan.
PAT BUCHANAN, MSNBC POLITICAL ANALYST: The president of the United States said he had the greatest admiration for justices like Rehnquist, Scalia and Thomas. He gave every indication to his constituency and the American people he would appoint justices like that. I think if he failed to do that I think he would not only be betraying the voters, but he would be breaking the hearts of his coalition, the party and the conservative movement. I think he's going to appoint a strong conservative. If I had to pick one right now, I would pick Michael Luttig of the Fourth Circuit.
ABRAMS: Fourth Circuit Court of Appeals argued that doctors and clinics receiving federal funds may not talk to patients about abortion, among other things, but we'll talk about that in the next block.
Kim Gandy, do you think you have any hope of having an influence on how this president picks?
KIM GANDY, NATIONAL ORGANIZATION FOR WOMEN: You know nobody thought that Ronald Reagan would choose a moderate as he did in Sandra Day O'Connor and we sported Sandra Day O'Connor. We testified in favor of her, which surprised a lot of people. But we knew that we weren't going to get a liberal at that time and the best we could do was a good, strong, fair woman who would not turn her back on women's rights and that's what we are looking for this time.
ABRAMS: Who do you think that the president will appoint if you had to pick one?
GANDY: I hope he will look at somebody like Gladys Kessler of the D.C. circuit, someone like Sissy Daughtry (ph) from the Sixth Circuit here in Tennessee.
ABRAMS: Two names not being exactly discussed on the front burner...
GANDY: I can...
ABRAMS: ... but nevertheless...
GANDY: I can have my wish list.
ABRAMS: You can have your wish list. Wendy Long, all right, so do you think that this president is going to reach out to Democrats and say look, I am going to appoint someone conservative but I won't go for Pat Buchanan's pick because maybe he's too conservative. Do you think that they will—that he will actually listen to what Democrats have to say or is this going to be talking to the conservative constituents?
WENDY LONG, FORMER SUPREME COURT CLERK: The president is not going to appoint a conservative or a liberal. Political labels don't apply to judges. What he's going to do is keep his promise that he made in two campaigns to the American people to appoint someone of outstanding intellect and legal experience...
ABRAMS: Oh come on, Wendy...
LONG: ... who will faithfully apply the law...
ABRAMS: Come on...
ABRAMS: ... don't give me the cliche...
LONG: No, no, no...
ABRAMS: Bottom line is he's going to appoint—you can say the labels don't apply, but judicial conservatives there is such a thing, I'm sorry. It's not the same thing as political conservative...
LONG: But Dan, let me explain something to you. A judicial conservative, as you're calling it, is someone who applies the Constitution (UNINTELLIGIBLE). If we take past picks, Mike Luttig...
LONG: ...of the Fourth Circuit, he has come out many times on what you would call the quote—unquote—“liberal side of a case” in favor of criminal defendants or in favor of the little guy who wants to sue big banks. It just—it doesn't apply and if somebody is truly judicially independent that's what you're going to have. You can't predict the outcome...
ABRAMS: Do you think Robert Bork is judicially independent?
LONG: I think he is and was judicially...
ABRAMS: Come on...
ABRAMS: Come on. All right. I mean look I expect and I hope—I think this president is going to appoint a conservative. I think that's to be expected. I think...
LONG: Sandra Day O'Connor is a conservative.
LONG: She was a very conservative state legislator.
ABRAMS: Yes, she wasn't a very conservative state legislator. There were concerns about Sandra Day O'Connor from the day that she was selected that she not conservative enough. I mean that's a fact.
All right. Let me ask Jeff Lamkin a somewhat peripheral question and that is do you think that if John Kerry had been the president of the United States today that the woman that you clerked for, Sandra Day O'Connor, still would have stepped down today?
JEFF LAMKIN, FORMER CLERK TO JUSTICE O'CONNOR: Oh, I would just have
· that would be pure speculation.
LAMKIN: I have no idea whatsoever. Justice O'Connor is an immensely private person. She stepped down now for whatever reasons she had. I don't—I would have to be—I'd be guessing. I don't know more than you do about that.
ABRAMS: Do you think that—I mean how important - and again putting aside judicial philosophy, how important was politics to her in general?
LAMKIN: I don't think politics was immensely important to her when she was on the court. She was dedicated to the court and dedicated to the court as an institution and judicial philosophy (UNINTELLIGIBLE) aside, she had her judicial philosophy, but I have to agree with Wendy on this that all of them call it as they see it in each individual case. And there is just no way to (UNINTELLIGIBLE) somebody to say oh one is conservative, one's liberal.
That hides a significant complexity. You look at the lineups of how the justices vote and very often you'll see line ups like Scalia leading the charge with Thomas, Ginsburg, Souter, Stevens on sentencing guidelines issues.
ABRAMS: Hang on a sec. David Boies, am I crazy? I mean am I the only her who thinks...
ABRAMS: ... who thinks that the conservatives and liberals generally line up?
ABRAMS: I am going to keep calling them that.
UNIDENTIFIED FEMALE: You're not the only one.
BOIES: There are certainly times when people on the court do things that are unexpected, but you can generally predict where Justices Scalia and Thomas and Rehnquist are going to be. And you can generally predict where Justices Ginsburg and Stevens are going to be. It is a little harder to predict the other four.
BOIES: It is particularly hard to predict Justice O'Connor...
BOIES: ... which is one of the reasons that it made her such a swing vote. But in general, we know that—everybody really knows, regardless of what you want to say for political purposes—everybody knows that Scalia, Thomas and Rehnquist are on one side of the court and Ginsburg and Stevens are on the other...
ABRAMS: Yes, Pat Buchanan...
BUCHANAN: Look, there is a 4-3 split right now. We know who the four are. The other three are Scalia, Thomas and Rehnquist.
BUCHANAN: But let's take at issue what is most important to conservatives is that judges have too much power, they're making decisions on issues that belong with legislators whether they're from Massachusetts or Mississippi. Let me give you an example. Thirteen states voted last year we don't want gay marriage, we don't believe in it. It was in landslides.
But if O'Connor and Kennedy tomorrow morning decided the Constitution says gay marriages have to be treated the same as regular marriage that becomes the law of the land. This is what outrages conservatives. We want those decisions taken by legislators at the state level so there is a clear conservative-liberal split. Conservatives do not believe in judicial activism. We don't believe in powerful judges making decisions for the American people. We believe in a democratic republic and we believe we've lost it...
ABRAMS: Pat, you have to be fair. You are one of the few intellectually consistent conservatives, because a lot of times you see people who claim to say oh, you know, judicial activism this and that, and then you see a ruling from the people who are supposed to be the most conservatives on the court, which sure seems to be judicial activists.
BUCHANAN: Well let me say this—I think Scalia was not on my side on medical marijuana. It seems to me that was a state issue. I may not have voted for it...
BUCHANAN: ... in California...
BUCHANAN: ... but California makes the decision.
ABRAMS: ... quick break here. I'm going to come -- we're going to talk about the issue everyone is asking about up next and that is the future of abortion rights in this country. With Justice O'Connor's retirement, will Roe v. Wade be overturned?
Plus breaking news in Aruba, prosecutors charge three suspects with murder in the murder of the disappearance of Natalee Holloway. A live report from Aruba is coming up.
ABRAMS: In perhaps their most controversial decision during 24 years on the bench, Justice Sandra Day O'Connor voted in 1992 to uphold the woman's right to have an abortion. Surprisingly many conservatives after she had voiced her own personal opposition to abortion early on in her time on the court had joined with conservative justices in supporting restrictions on abortion. Now that she's stepped down a lot of questions.
In the 1992 case, Planned Parenthood v. Casey, O'Connor strengthened her abortion rights position co-authoring a joint opinion that said the court's opinion in Roe v. Wade should be upheld, but that restrictions were permissible. Ten years later she told NBC's Katie Couric she considered the public's feelings about abortion while making the decision.
(BEGIN VIDEO CLIP)
UNIDENTIFIED FEMALE: It is an issue on which people in the nation are deeply divided. They have been ever since I've been on this court, and I think still are. And it's an issue about which people feel passionately. And I am very much aware of that when we have a case in that area.
(END VIDEO CLIP)
ABRAMS: Kim Gandy, president of National Organization for Women, I have to tell you, I think that those who are saying that O'Connor stepping down is going to lead to Roe v. Wade getting overturned are vastly overstating the situation. If you read the opinions, you read the '92 case, the opinion, even if you read the 2000 opinion in Nebraska, the bottom line is it still seems to me Justice Kennedy is not going to say it is time to overturn Roe v. Wade and if he doesn't say it, it's not going to happen.
GANDY: The most recent case, the one that you referred to from Colorado, was a 5-4 decision and Justice O'Connor was the swing vote in that case. Without Justice O'Connor's vote in that case, if there is a justice who replaces her, who votes the other way and flips the decision in that case, it could ban abortion...
ABRAMS: But the question there was not is it time to overturn abortion—overturn Roe v. Wade. These other cases have been various cases that have dealt with restrictions on abortion.
GANDY: You are misinterpreting it. I think everyone who's looked at it, certainly the law professors who study in that area, made it very clear that this would ban one of the most common abortion procedures. It was not as it was represented to be. And that's what the majority of the court, the five-person majority said. This law says it's one thing, but it is really not. It would ban the most common abortion procedures...
GANDY: ... at about the 12th week. And that was a swing decision that she was the fifth vote for, as she was the fifth vote on affirmative action...
ABRAMS: Well affirmative action, no question.
GANDY: ... medical leave...
ABRAMS: No question on the other ones...
GANDY: ... on the American's Disabilities Act.
ABRAMS: Hang on. Let me stick to abortion. But Wendy Long...
ABRAMS: ... let's stick with abortion for a minute. Let me bring Wendy Long into this, Judicial Action Network. Bottom line, I mean it seems to me that you can make arguments and there is no question, there will be more restrictions on abortion that will be upheld in various states, I would think no matter which of the various candidates that President Bush is considering. But I do not think it will mean Roe v. Wade is overturned.
LONG: That is exactly right Dan. Right now there is a 6-3 vote if you counted it now on the court in favor of leaving Roe in place. Roe isn't at issue. What is at issue are procedures like partial birth abortion, like requiring minors when they get abortions just to notify, not even get the permission of one of their parents, very, very mild and moderate and reasonable regulations on abortion that are supported by a great majority of Americans. That's what's really at issue now and to suggest to the contrary is simply not looking at the facts.
ABRAMS: Pat, go ahead.
GANDY: And that's just not correct.
BUCHANAN: Dan, you are exactly right. It is a 6-3 on Roe v. Wade and even if O'Connor were replaced by a conservative, it's a 5-4 decision. But Justice O'Connor made a very important point. She said people are deeply divided on this, people—on various issues.
BUCHANAN: That is why the people ought to decide. Even if Roe v. Wade were overturned, that doesn't mean abortions are banned automatically everywhere...
ABRAMS: Yes. Right.
BUCHANAN: It means the people decide state by state by state, which is as it should be.
ABRAMS: David Boies, it seems to me that what is going to happen now is going to be that the states are going to be permitted in the end, no matter who it is here, to impose just about every restriction they want, apart from banning abortions.
BOIES: If that happens, you have essentially banned abortions. I mean let's stop playing word games. Whether you overturn Roe v. Wade directly or not, if you impose such restrictions on abortion and it becomes as a practice matter unavailable, at least for the majority of people who may not lack the economic means to travel to various states...
BOIES: ... then what you have done...
ABRAMS: Hang on. Let him finish...
BOIES: ... is you have eliminated a woman's right to chose.
BOIES: Now people may believe in that as Pat does, and I respect those kind of views, but let's not play games about what is going on here.
ABRAMS: But—well let me ask Jeff Lamkin, because you know you clerked for Sandra Day O'Connor. It doesn't mean that your views necessarily reflect hers. But...
LAMKIN: They probably won't.
LAMKIN: They probably won't.
ABRAMS: Right. Right. But what do you make—I mean it seems to me that it is fair to say that Roe v. Wade will not be overturned but that there will be additional restrictions and I guess it depends on if you look at additional restrictions as making it effectively a ban.
LAMKIN: That sounds like a reasonable prediction. No matter what happens, we're going to see more restrictions on abortion. I don't think Roe or Casey are going to be outright overturned. It looked like it's a 6-3 lineup right now. But like I said, each of the Justices take the cases as they come, they tend to be incremental decision makers, and bit by bit you may see some erosion about how far it goes...
ABRAMS: Is it a copout? Jeff, you think it's a copout for the court to not just say look, we want to overturn it. If we're going to effectively allow, as David Boies points out, all of these restrictions on abortion, we're effectively saying Roe v. Wade is overturned. But maybe the reason the court doesn't want to do it is because they don't want to sort of deal with the political and public repercussions.
ABRAMS: Let me let Jeff respond...
UNIDENTIFIED FEMALE: In fact, that's why the right wing is being so...
ABRAMS: Let me let Jeff respond.
LAMKIN: I think that attaches way too much real polity to the way the court works. Basically, when they make decisions they are attaching their judgment. They don't know—they don't have—they're not omniscient. They don't know that how far any particular decision...
ABRAMS: Oh come on...
LAMKIN: ... and they tend to be incrementalists.
ABRAMS: You're going to tell me...
LAMKIN: They can't see every case...
ABRAMS: ... that the justices don't realize when they rule on an abortion case that the public is going to react a particular way.
LAMKIN: Yes, they do know that, but I don't think that strongly influences them or even influences them whatsoever. I think what happens is they tend to be just like the old common law judges, incremental decision makers. They take each case as it comes and they decide it.
And once they end up with a bunch of decisions in the area, they'll see a pattern and they'll draw a circle around it and say (UNINTELLIGIBLE) we've discerned the principle. But I don't think that they go ahead and they say bright line, we're going to wipe out this area of law and redo it without really, really thinking hard about it, and I don't think they are ready to do it.
LAMKIN: And I think what you'll see now is incrementalism as a result.
ABRAMS: Let me give Kim one more shot at this, then I'm going to switch topics.
GANDY: I think it's very important to recognize that this is part of the right wring strategy. They know that there would be a human cry if Roe was overturned and so they are playing it down. They are saying oh, no, no, they're not going to reverse Roe, no problem there, don't worry about it.
GANDY: Well we are worried about it. It is a 5-4...
UNIDENTIFIED FEMALE: Dan...
GANDY: If Roe is overturned...
ABRAMS: The bottom line is...
ABRAMS: The bottom line is...
GANDY: ... absolute revolution in this country...
GANDY: ... from the women.
ABRAMS: And the bottom line is Roe will not be overturned but you can still make the argument, as David does, that it effectively will make abortions in certain states difficult to get. David Boies has to go. Everyone else is going to stick around. We'll keep talking about this.
David, good to see you.
BOIES: Thank you.
ABRAMS: Justice O'Connor's legacy, we're going to keep going on this. She was the key vote in many of the Supreme Court's most important decisions. Gay rights, affirmative action, abortion. We're going to keep talking about what happens now that she stepped down.
And three suspects still being held in the case of missing teen, Natalee Holloway. They could be set free as soon as Monday if a prosecutor can't show enough evidence to hold them.
ABRAMS: Coming up, more on the big announcement from the U.S. Supreme Court. We're going to take a look at the legacy of Sandra Day O'Connor and what happens with a lot of the issues where she was that key swing vote. First the headlines.
(BEGIN VIDEO CLIP)
BUSH: This great lady born in El Paso, Texas, rose above the obstacles of an earlier time and became one of the most admired Americans of our time. She leaves an outstanding record of service to the United States and our nation is deeply grateful.
(END VIDEO CLIP)
ABRAMS: We're continuing our coverage as Sandra Day O'Connor, known as that swing vote on the United States Supreme Court, stepping down, retiring. She was also very often that one decision, that one vote that ultimately threw a case one way or the other. Her swing vote worked both for conservatives and liberals. Republicans could count on her views on state's rights and property cases.
Democrats often counted on her to uphold issues related to women's rights. She turned the coin on some major cases recently. 2003, issue of affirmative action. Her vote swung a ruling that upheld the limited use of race as a factor for law school admissions.
On the issue of discrimination against homosexuals, her vote was the key in the decision to eliminate anti-sodomy laws and as we just discussed, her vote forced a ruling that eliminated a state ban on what opponents call partial birth abortions. Back with me the panel—start with the affirmative action issue.
Jeff Lamkin, do you think it's pretty clear, now, that now that your former boss has stepped down, that a new court will rule that affirmative action is not OK? You can't use race as a factor in college or law school admissions?
LAMKIN: That depends entirely on who the president appoints and even then it is not guaranteed because people have—the justices have a life tenure. Life tenure means never having to say you are sorry. So their views can change overtime or they can walk in with one set of views and no one knows exactly what they are.
ABRAMS: Adding to the panel Georgetown University law professor, Peter Rubin. Professor Rubin, what do you think, affirmative action decision going to be bye-bye regardless of who President Bush's nominee is?
PETER RUBIN, LAW PROFESSOR, GEORGETOWN UNIVERSITY: Not regardless of who his nominee is, Dan. This is of course a seismic event in American law and the life of a nation, and one of the reasons is race, the most important issue that faces the nation over its history. And Justice O'Connor was the fifth vote two years ago, as you noted at the outset, to uphold the use of affirmative action in limited circumstances, particularly in higher education admissions. That and a number of other areas of law are now in line for a dramatic makeover if the president picks someone from the extreme conservative camp that he has said he prefers.
ABRAMS: Wendy Long, there is something, though, in the law which basically says we respect previous opinions of the court...
ABRAMS: ... and trying not to use the legal terms, but bottom line is do you think that whoever is chosen, there will be a sense that you know what, we've got to be careful about going back and changing all of the old opinions?
LONG: Yes, definitely. That's always the case, and the court does move slowly and very carefully, particularly when it is reexamining constitutional precedence. Look, the infamous Plessy v. Ferguson decision of separate but equal in the race area stood for 60 years before finally it was overturned in Brown v. Board of Education.
But I think what we're seeing is a steady march toward the principle of great—fulfilling in a greater way the color-blind mandate and aspirations of the Constitution. And Justice O'Connor herself, remember Dan, is the one who wrote the important opinion applying the strict scrutiny test in the federal area to the federal government as well as the state, so that's been a steady theme of steadily increasing color blindness.
ABRAMS: But the bottom line is it seems to me, Kim Gandy, if the court, if a new justice comes on the court, would you expect that almost immediately there would be someone would say all right, you know what, time to challenge the opinion from two or three years ago on using race as a factor?
GANDY: You know, the right wing think tanks, the legal organizations have cases headed to the court already in many, many of these areas, including Roe v. Wade where they have got cases working their way up through the system with the expectation that there will be appointments of one, two or possibly three justice who would then overturn those decisions.
ABRAMS: Pat, true?
GANDY: My guess is that that's who President Bush would like to appoint, but it doesn't mean he can get it confirmed by the Senate...
ABRAMS: Let me ask Pat...
ABRAMS: Pat, is it true you've got cases in the pipeline that are—you are already ready to try...
BUCHANAN: No, you know, this is again—this is the power the court decides. It picks and chooses some 80 cases out of the thousands that are offered to it so it can make the law of the land. But clearly what is the kind of conservative we want? Is he going to go back to Earl Warren's precedence and say gee that binds us or is he going to back to the Constitution, which says, for example, that discrimination and the law says discrimination against white folks is wrong as well as discrimination against black folks.
This is the kind of courageous conservative we have in Scalia and Thomas right now. And clearly, this is the type of justice we are going to be looking for and I believe the president almost has to support given what he promised the American people.
UNIDENTIFIED FEMALE: He didn't answer your question, did he Dan?
BUCHANAN: I think I did. I think that's the kind of conservative he's going to name and I do believe that affirmative action, if you have a conservative of the kind I am talking about, given the fact that Dan pointed out it was a 5-4 decision, they will throw out discrimination against white folks...
ABRAMS: You know...
BUCHANAN: ... and why shouldn't they?
ABRAMS: You know Professor Rubin, what's interesting, let's move on
to the death penalty, is that everyone is saying oh Justice O'Connor on the
death penalty—bottom line though is if you read what Justice O'Connor
says on the death penalty, bottom line is she's not going to have much of -
· it's not going to have much of an impact one way or the other because Justice O'Connor voted in one case to say that she joined the majority—here it is—in Atkins v. Virginia—in deciding that the executions of mentally retarded criminals is cruel and unusual. And yet she disagreed with the majority that said that those under the age of 18 shouldn't be executed. So her decision doesn't become make or break on either of those cases.
RUBIN: Well it is make or break on the first case of mental retardation, Dan, but I guess...
ABRAMS: Wait, how does that happen?
RUBIN: Because she was with the majority in that case.
ABRAMS: It was 6-3.
RUBIN: OK. Well in that case it's 6-3. The death penalty, her jurisprudence has been extraordinarily influential in assuring that mitigating evidence comes before sentencing juries in death penalty cases and there are a number of 5-4 cases. Henry v. Linear (ph) is a very important one from 1989 where her vote will make a difference.
But I think what is really important here, are the central issues in American law which aren't really the death penalty right now, but affirmative action—I think Pat's answer was very, very telling. He said yes, we are looking to advance this revolution that talks about discrimination against white folks, which is what he was talking about. And that is what is at stake here and I think the American people, he says that the Constitution says there can't be any affirmative action.
Of course, it doesn't say that. It guarantees equal protection of the laws. Justice O'Connor's vote is important because she stood as a bulwark against parts of a revolution in American law that Justices Scalia and Thomas are at the forefront of attempting to lead.
ABRAMS: I've got to...
ABRAMS: I've got to wrap it up. But I just got to—I'm sorry, but I just -- I've got to get a final—I want to just find out from everyone how controversy they think that this is going to—Pat, any hope this won't be controversial, yes or no?
BUCHANAN: Look, the—who controls...
BUCHANAN: ... the Supreme Court wins the culture war.
ABRAMS: So it's going to be controversial...
BUCHANAN: It's going to be—if he appoints—if Bush...
ABRAMS: Yes. Kim...
BUCHANAN: ... a conservative the liberals will try...
ABRAMS: Kim Gandy, how controversial...
GANDY: If it's a bad nominee it's going to be a huge fight. It's going to be a state of emergency.
ABRAMS: Wendy Long.
LONG: If, as Ted Kennedy says, the president abuses his power and fulfills his...
ABRAMS: Oh boy...
LONG: ... constitutional duty and picks a nominee, it will probably be controversial.
ABRAMS: Look at this. Everyone—if—the worst-case scenario—if the world is falling. All right Jeff Lamkin, how bad is it going to be?
LAMKIN: I don't know.
LAMKIN: I have my fingers crossed that it won't be that bad but I'm just an eternal optimist.
ABRAMS: Professor Rubin.
RUBIN: I think this is going to be bigger than Bork if the president does what he said he intends to do and again, of course, I hope that he will pick someone from the main stream.
ABRAMS: Pat Buchanan, Kim Gandy, Wendy Long, and Jeff Lamkin, Peter Rubin, it's hard to talk Supreme Court. I apologize to—it is hard to do it in short periods of time, but I appreciate all of you trying with me.
UNIDENTIFIED MALE: Thank you, Dan.
ABRAMS: Coming up, why Democrats should expect and embrace a conservative Supreme Court appointee from President Bush with a big but attached. It's my “Closing Argument”.
And up next, the Natalee Holloway case, three suspects could walk as soon as Sunday if an Aruban judge doesn't think there is enough evidence to hold them. There are some conflicting reports coming out of there. We're going to straighten it all out coming up.
ABRAMS: Coming up, we've got some breaking news, Natalee Holloway case in Aruba, coming up after the break.
ABRAMS: In Aruba chief prosecutor Karin Janssen preparing to go to a judge on Monday and show there is enough evidence to keep three suspects in Natalee Holloway's disappearance behind bars for at least a couple of more months. Three suspects, Dutch teen Joran Van der Sloot and brothers Deepak and Satish Kalpoe, they've been in custody since June the 9th.
Now joining me now with the latest from Aruba is NBC's Martin Savidge. All right, Martin, so look, we heard from The Associated Press that suddenly these guys had been charged with murder and everyone was breaking in that three have been charged with murder, this and that. It turns out that's probably not the case.
MARTIN SAVIDGE, NBC NEWS CORRESPONDENT: No, it is not the case. As a matter of fact, if everyone recommends or recollects back to the interview that we had with Karin Janssen she talked about the charges specifically against these young men saying that they were murder, that it was homicide and also kidnapping. She also pointed out that the reason that the prosecutor's office didn't initially announce those charges was out of respect for the Holloway family.
Because they knew at that time when the boys were taken into custody that the family still had hopes and was still actively involved in the search of finding their daughter alive. However, the suspicions on the part of the prosecutor's office was that in fact there had been a crime and we knew then that these three suspects had been charged with murder, with homicide—that's a different distinctive charge—and then also with kidnapping to do bodily harm or to perhaps kill.
So that's the clarification right there, Dan. We've known this all along. But unfortunately it's very confusing down here and there are new reporters that come in and they don't always understand the nuance. By the way, I had an opportunity to sit down and talk to Beth Twitty and George Twitty, Natalee Holloway's mother and stepfather and one of the things they are greatly worried about, in fact Beth Twitty will tell that she is worried—physically sick is this hearing you talk about that's going to take place on Monday.
Because it's when they're going to determine whether they can hold these suspects for an additional 60 days, but it can also be where a judge decides whether or not to let them go. Here is Beth Twitty and George Twitty talking about that very issue.
(BEGIN VIDEO CLIP)
BETH HOLLOWAY TWITTY, NATALEE HOLLOWAY'S MOTHER: I am sick—I now will be physically sick for the next three days because those three individuals, like I said, like three cords woven so tightly together in this, they—I will be, I will be sick. And Martin, the things that we have been through during this ordeal would shock and amaze Americans.
(END VIDEO CLIP)
SAVIDGE: You know we've been trying to get a consensus, Dan, of people who are connected with this case or even those who carefully watch it as to well what's going to happen with this hearing. And the way everybody answers that question is we hope that the suspects are not released. But no one can seem to say that they are sure that they will not be released...
SAVIDGE: ... and as we have already heard from the family, if there is a release, look out.
ABRAMS: Martin, I want to play another piece of sound from your interview with Beth, because it is clear, this is a woman who is getting very frustrated and frightened by the system down there. Let's listen.
(BEGIN VIDEO CLIP)
B. TWITTY: We cannot forget to demand and expect to have Natalee. Natalee deserves to return to her country. She deserves it, and everyone knows it, Martin, every single person. Every single person knows that. They know it.
(END VIDEO CLIP)
ABRAMS: Martin, I'm hoping that on the whole she is holding up. How is she doing?
SAVIDGE: Well, you know, in fact it was my question asking about how they are holding up. I see her every single day. I see all of the family members just about every single day and I had just remarked to her and the question was that you know you look so composed and you are so strong as you come across when we talk. And are there ever moments that you break down and she started off and you heard her...
SAVIDGE: ... almost begin with a laser-like intensity...
SAVIDGE: ... and then you saw as she cracked. I mean that's...
SAVIDGE: ... the way it is for her. There are moments of great strength and moments of great sadness.
ABRAMS: Well we're hoping and praying for her. Martin Savidge, thanks again for your coverage out there. Appreciate it.
Joining me now our friend criminal defense attorney, Daniel Horowitz. All right, Daniel, you know Dutch law. What is the deal here? I mean whether it is officially charged versus not—they are being held on suspicion of homicide but they still have not been what we might call officially, formally charged. We don't know that they are going to trial yet, right?
DANIEL HOROWITZ, CRIMINAL DEFENSE ATTORNEY: Right. Now Dan, I have not appeared in Dutch courts for about two years, but when I was there, when I was in the Netherlands, the way they had it is there was a judge. He was sort of an investigative judge. He didn't just sit in a chair and neutrally listen to two sides. He actively sponsored the investigation and directed people to bring him certain evidence.
And then he would make a decision, do we keep the investigation going, do we let these people go free? And at some point he makes the final call. Formal charges will be brought or they won't. It is sort of a variation of our grand jury investigation. If that is what is going on here in Aruba, as I expect, I think there's a very good chance that this investigation will continue, and these people will not be let go.
ABRAMS: I was tempted to ask if you had a good lawyer representing you when you were in that Dutch court. But let's be clear. So when the AP reported that they had been charged and Martin is saying they have been charged—we're using that term interchangeably, but it's sort of somewhere in between what we would call being arrested and being charged in this country, right?
HOROWITZ: Exactly, Dan. In this country it's very common for police to get a warrant and then arrest you and maybe they don't have that warrant procedure the same way we do, but once you are in custody under Dutch law, there is review continually by the judicial authorities. But just like in America, the initial stages of arrest don't mean that you are going to go to trial. There is actually a proceeding. In America the grand jury proceeding...
HOROWITZ: ... or another type of proceeding, where there is a more formal review and people often are let go at that stage, maybe they're rearrested...
HOROWITZ: ... but it doesn't always go forward to trial.
ABRAMS: Big day Monday in Aruba where they will determine whether there is enough evidence to hold them for 60 days. Daniel Horowitz, thanks a lot. Appreciate it.
Coming up, so what kind of candidate should President Bush appoint to the Supreme Court now that Sandra Day O'Connor is retiring? Well I tell you what I think about it. It's my “Closing Argument” coming up.
ABRAMS: My “Closing Argument”—why Democrats should expect and embrace a conservative Supreme Court appointee from President Bush and why President Bush should not nominate one of a handful of judicial extremists who have been mentioned as possible candidates.
First, Sandra Day O'Connor's retirement does not and should not mean this president must appoint a moderate conservative O'Connor clone. Democrats shouldn't expect as much. The president has always made it clear, in fact, promised once a member of the current court side has stepped down, he'd appoint conservative judges. There should be no expectation he'll do anything less than that.
But for the president to appoint one of a handful of ultra conservatives, far out of the judicial mainstream would be to ignore the realities of this country. This is a nation divided. Most somewhere in the middle either are more moderate Republican or more conservative Democrat. A lifetime appointment of such import should at least reflect that reality. It is fair to hope that there are some who will be passed over because in comparison, they're well too conservative.
I hope the president resists the temptation to allow the far right to dictate who makes it on the highest court. President Clinton had wanted to appoint former Arizona Democrat Bruce Babbitt to the court, decided against it after Republicans objected. Clinton decided not to appoint one of the ultra liberal judges from the Ninth Circuit Court of Appeals either.
Supreme Court Justice Stephen Breyer, while a liberal, was not a far left choice. This president should select a conservative but not far right. This next justice need not be a true moderate, but amongst the array of conservative choices President Bush will have, some moderation would be a virtue.
That does it for us tonight. Coming up next, “HARDBALL” with Chris Matthews. Have a great July 4 weekend. I'll see you next week.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
Copy: Content and programming copyright 2005 MSNBC. ALL RIGHTS RESERVED. Transcription Copyright 2005 Voxant, Inc. ALL RIGHTS RESERVED. No license is granted to the user of this material other than for research. User may not reproduce or redistribute the material except for user's personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon MSNBC and Voxant, Inc.'s copyright or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.