updated 7/20/2005 8:11:39 AM ET 2005-07-20T12:11:39

Guest: Kay Bailey Hutchison, Jeff Sessions, Elliot Mincberg

TUCKER CARLSON, HOST:  Supreme Court situation means we‘ve got a lot of ground to cover tonight and plenty of guests on deck.

I‘m joined now by NBC News chief legal correspondent and the host of “THE ABRAMS REPORT” here on MSNBC, Dan Abrams. 

What do you make of this, Dan? 

DAN ABRAMS, NBC CHIEF LEGAL CORRESPONDENT:  You know, this was the right choice, so to speak, in the sense that he‘s just conservative enough, I think, to satisfy the base.  And yet, there‘s not enough on paper for the liberal groups to really get him.

And so, I think that—that he‘s going to drive some of these interest groups crazy, though, because they want to go after the president‘s choice.  And, yet, some of the left-wing groups are going to have to say, boy, what are we going to be able to find here? 

CARLSON:  Well, there‘s—and if you—and if you go through the Web sites—and they have spent months preparing for this moment, and there‘s not a lot. 

What do you make, though, on all—most of the liberal Web sites reprint something he wrote about Roe vs. Wade and the right to abortion not being found in the Constitution.  Does that reflect his thinking? 

ABRAMS:  Well, that was when he was working for the solicitor general.  The solicitor general is effectively the attorney for the president.  He was working for Ken Starr.  Ken Starr was the attorney for the president at the time.  And that was the position of the administration. 

He was signed on to that brief.  Yes, those were words that he had probably written.  But, you know, he‘s an advocate.  He‘s a lawyer.  And when he was up for confirmation as a Federal Court of Appeals judge, he was asked that very question.  And he said, I was an advocate.  He‘s not going to give the sort of specific answers that I think some on the left would like to see.  He‘s just not going to provide them with the fodder I think they need. 

CARLSON:  So, what do we know about what he as a person thinks?  I mean, do we—are there any insights into his personal judicial philosophy? 

ABRAMS:  You know, we know a little bit.  We‘ve seen opinions that he‘s written for the past couple of years.  But, even on criminal law issues, they haven‘t been uniformly conservative.  I mean, I was reading up on one case where a criminal defendant was convicted of fraud.  And he joined with a—he joined with an unlikely alliance in that case, which wouldn‘t be the ordinary case.  I mean, he took on someone else who‘d been appointed by Bush.  So, you don‘t have someone who, I think, has a lot of material to work with. 

CARLSON:  Well, so what do you—I mean, how do you work with it?  I mean, if you‘re NARAL or People For the American Way, how do you try to derail this guy? 

ABRAMS:  You look at his nanny.  You look at whether he smoked pot. 

You go back...

CARLSON:  Yes, hire a private detective, basically.

ABRAMS:  You go—I mean, it‘s all I can think of.  I mean, look, they‘re—they would sit there and they would—they would say, are you kidding me?  Did you just say what I just heard you say? 

Sure.  They‘re going to go through the opinions.  They‘re going to go through his positions in the various cases.  His position again and again in front of the Judiciary Committee will be, I was an advocate. 

He did it before.  I mean, you know, we have got it right here.  Senator Hatch asked him: “As a lawyer in the solicitor general‘s office, you were duty-bound to represent the official position of the United States, even if it is conflicted with your own personal beliefs, right?” 


That‘s what they‘re going to get from him. 

CARLSON:  All right. 


ABRAMS:  That‘s what they‘re going to get from him.

CARLSON:  I just said what they told me to say.  Is that...

ABRAMS:  Yes.  Yes. 

CARLSON:  Right. 

ABRAMS:  And so, they are not going to get anything substantive.  His opinions that they have down on paper aren‘t going to be particularly useful.  Sure, he‘s donated some money to Republicans.  Again, that‘s not going to...


CARLSON:  So, it‘s—it‘s either going to be just a clean sweep for him, essentially—he‘ll get 70 votes in the Senate—or it‘s going to be incredibly ugly, like it was for Clarence Thomas? 

ABRAMS:  Right.  Right. 

I think—I think they‘re going to have to find something beyond his legal philosophy. 

CARLSON:  Right.  All right. 

Well, speaking of the Senate, we‘re going to go now to a member of that body, Senator Kay Bailey Hutchison of Texas.

Senator, thanks a lot for joining us. 

SEN. KAY BAILEY HUTCHISON ®, TEXAS:  Thank you, Tucker. 

CARLSON:  Are you disappointed, first off, that Judge Roberts is not a woman?  I think you had said that you wanted a woman to be appointed.  What do you think of this? 

HUTCHISON:  Oh, absolutely not.  I think this is a very fine appointment. 

I do think diversity on the court is important.  I think the president agrees with that.  I think we will see down the road a woman and a Hispanic in strong contention.  But I think the president has made an outstanding choice.  He is so respected.  He‘s clearly going to be the kind of person you want for your legacy for president of the United States. 

CARLSON:  Well, you had say you think down the road we will see the president submit either a Hispanic or a woman or both.  Has he said that to you or to the Republican Party Caucus? 

HUTCHISON:  No, he hasn‘t.

But I just know that that would be what he would want to do.  I think he believes that diversity on the court is a factor.  But I think, at this particular time, this particular person was the best for the job.  And I think he‘s unquestionably going to be confirmed.  I think he will be confirmed swiftly, because I—I saw part of his last confirmation.  And he‘s just—he‘s just dynamite.  He really is. 

CARLSON:  What sort of warning, Senator, did you have about this? 

When did you learn that Judge Roberts was going to be a nominee? 

HUTCHISON:  Really, just an hour or so ago.  It was—it started coming out an hour or so ago.    

CARLSON:  The president indicated in his remarks that he had spoken to Senator Leahy.  Did—do you think he give him the name of Judge Roberts?  And what was that conversation like?  Do you know? 

HUTCHISON:  No, I don‘t know what Senator Leahy said.  But I‘m sure he did tell him that it would be Judge Roberts.  And Judge Leahy is familiar with Judge Roberts, because he‘s gone through the process in the last few years. 

So I hope that the Democrats will question him, as we would all expect to do, with due diligence, but I don‘t think that this is the kind of person that you could possibly filibuster, or delay, or use any kind of tactics like were mentioned just a few minutes ago on your show. 

I just don‘t think that this is the kind of person you would want to do that to.  I think he has just an incredible record from his boyhood days.  He was a star at Harvard, and he‘s really shown the academic credentials.  He‘s shown the respect in the legal community, and he‘s young. 

CARLSON:  Well, Senator Schumer of New York issued a statement just a couple moments ago saying that he had voted against Judge Roberts for the D.C. Circuit because Judge Roberts refused to answer a series of questions put to him by Senator Schumer and other Democrats. 

Do you remember that?  Do you know what those questions were? 

HUTCHISON:  Oh, I think it was probably some of the questions, like on Roe v. Wade, although he did answer that one, I thought, completely.  There will be an effort to make Judge Roberts take positions, but he will not do that.  No Supreme Court nominee ever has. 

They don‘t give—they don‘t prejudge cases.  They shouldn‘t.  And he won‘t.  And I think that will be a pretty thin kind of opposition, if Senator Schumer does that. 

CARLSON:  But Senator, Roe v. Wade is 32 years old.  Why shouldn‘t Judge Roberts give in a pretty direct way his views on that ruling? 

HUTCHISON:  Well, he has said that it is the law of the land and there would be nothing in his makeup that would not allow him to adhere to that.  But you don‘t know what the facts of the case are.  And he is not going to prejudge the facts of the case. 

I think Roe v. Wade, of course, is something that has evolved over the years, until it‘s not like the original case.  It‘s something else now that is the precedent and the law of the land.  But he knows that.  And I think he will be clear, but I don‘t think he‘s going to prejudge. 

CARLSON:  All right, Senator Kay Bailey Hutchison of Texas, thanks a lot for joining us. 

HUTCHISON:  Thank you. 

CARLSON:  Appreciate it. 

Well, now we go to “HARDBALL” correspondent David Shuster who is standing by live on Capitol Hill. 

David, do you know anything about the conversation between the president and Patrick Leahy of Vermont? 

DAVID SHUSTER, MSNBC CORRESPONDENT:  No, we don‘t, although we know that it happened pretty late, apparently just within the last hour.  That‘s when the president explained it to him.  And then the word was passed through Senator Frist and other members of the Judiciary Committee. 

CARLSON:  Well, we were just sitting here talking on the set, Dan Abrams and I, and sort of reached a consensus that it‘s hard to see how Judge Roberts doesn‘t get through the Senate.  Does that jive with the feeling up there right now? 

SHUSTER:  Yes, one of the feelings that you‘re getting, especially from staffers—because, remember, this is a judge who‘s spent a lot of time in the Washington legal community.  He has worked with a lot of the staff members who will be vetting him now, over the years. 

One Republican tonight described him as this was the Ken Starr nomination but without Ken Starr, because of the Monica Lewinsky scandal.  And in fact, that‘s a reference to the fact that Judge Roberts was deputy solicitor general while Ken Starr was there. 

So he is a known commodity to a lot of people on the Hill, and a lot of Republicans, frankly, are betting that, simply because of the process, because of the people who will be asking some of the tough questions, collecting the information, this is a known quantity to them.  And that could make the process somewhat easier. 

CARLSON:  It‘s kind of amazing to me, though, considering Bush‘s political position right now, approval rating in the 40s, widely considered in Washington to be weak, maybe almost a lame duck already, and all of a sudden people are saying he‘s going to get his first Supreme Court nominee through the Senate with relative ease.  Do you really think that‘s going to happen? 

SHUSTER:  Well, I think at the moment, at least, Democrats are hearing it—again, we‘re hearing from some of the gang of the 14.  I had a conversation with Senator Mark Pryor from Arkansas.  He was one of the moderate Democrats that crafted a deal.

I mean, his talking point tonight was that he simply didn‘t know anything about Judge Roberts and simply wanted to withhold judgment, wants to leave open the possibility that maybe he won‘t agree with the values of this particular nominee, and so I think, at least right now on the Democratic side, there‘s a sort of wait-and-see approach.  “Let‘s see what comes out.  Let‘s gather more information.”

The Republican side, of course, everyone has this guy confirmed already, simply because he knows a lot of people in town, and Republicans believe that he‘s the sort of temperament, at least, that won‘t provoke the sort of fireworks that perhaps some of the other potential nominees might have. 

CARLSON:  All right.  Never underestimate the benefit of knowing a lot of people in town. 


That‘s what I‘ve discovered.  “HARDBALL” correspondent David Shuster, thank you very much. 

SHUSTER:  Thanks, Tucker. 

CARLSON:  Dan, I mean, what do you think of that? 

ABRAMS:  Withhold judgment?


ABRAMS:  That‘s the best defense—really, those are the exact words that this administration would have hoped for.  I mean, if they get all of these—sort of key rabid Democrats withholding judgment at this point, that is the best that they possibly could have hoped for. 

CARLSON:  Yes.  I mean, you would expect, if there was going to be a vigorous battle, right, you would expect the Democrats to come out of the box just swinging.  I mean, that‘s the smart—tactically, the smart thing to do. 

ABRAMS:  If this had been Luttig, for example, Fourth Circuit Judge, much more conservative considered, at least in terms of paper trail, than Roberts, I think you would have automatically had people saying already, “This is a bad choice.” 

CARLSON:  Right, “Out of the mainstream.” 

ABRAMS:  “Out of the mainstream.  We wish the president hadn‘t done this.  We‘re sorry he ignored the consultation,” et cetera.

The problem they have with Roberts is, a, he‘s got such a good pedigree.  I mean, you know, you‘ve got the Harvard law thing.  And then you throw in that he‘s had just about every job you‘d want a lawyer to have in government. 

Throw on top of that the fact that he‘s got liberal friends.  He‘s got Walter Dellinger, the former solicitor general, Seth Waxman, another former solicitor general, speaking on his behalf, when he was up for the D.C.  Circuit.  It‘s tough to think... 

CARLSON:  Little did they know when they wrote those letters...


ABRAMS:  But I wonder whether they wouldn‘t write them again.  I mean, listen to Lawrence Tribe.

CARLSON:  Well, that‘ll be the key.  I mean, because you bet right now there‘s a TV booker on the phone with Waxman and Dellinger saying, “Will you come on our morning show tomorrow?”  And I wonder if they will, now that the stakes are so much higher. 

ABRAMS:  I think—you know, look, I don‘t know.  And again, there is a difference, when you‘re talking about an appointment to the circuit court versus the Supreme Court.  As you know, the circuit court‘s role is supposed to be to make sure that the Supreme Court‘s opinions are administered. 


ABRAMS:  And they follow them.  When you‘re on the Supreme Court, you‘re not supposed to, quote, “make law” but you sure have a lot more power when it comes to interpreting it.  And you can overturn precedent.  And you can say, “This opinion no longer makes sense to us.”

And that‘s why there‘s a different standard when it comes to evaluating a Supreme Court nominee and just an appellate court. 

CARLSON:  Yes, yes.  You can‘t make law.  We should tell some of them that. 

Dan Abrams, stick around.  We will be back.  And there is, in fact, a Democratic response to tonight‘s announcement.  We‘ll give that to you when we return.  We‘ll also have Republican Senator Jeff Sessions of Alabama join us.  We‘ll be right back on THE SITUATION.


GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  He has profound respect for the rule of law and for the liberties guaranteed to every citizen.  He will strictly apply the Constitution and laws, not legislate from the bench.



CARLSON:  The president nominates his first Supreme Court justice nomination.  We‘ll have the Democratic response from Senator Patrick Leahy when we return.  Also, Jeff Sessions, Republican on the Senate Judiciary Committee.  We‘ll be right back.  



SEN. PATRICK LEAHY (D), VERMONT:  I really do not expect any issues to go to the qualifications, the honesty, integrity and the fairness—the fairness—of a Supreme Court justice to be off-limits.


CARLSON:  That was Senator Patrick Leahy of Vermont offering the Democratic response to the news that the president has nominated his candidate to the U.S. Supreme Court.  Joining me now, Republican Senator Jeff Sessions of Alabama. 

Senator Sessions, thanks a lot for joining us. 

SEN. JEFF SESSIONS ®, ALABAMA:  Tucker, good to be with you. 

CARLSON:  Now, you‘ve heard Republicans already explaining away Judge Roberts‘s comments about Roe v. Wade in the following way.  He was just arguing the government‘s case, they say.  Those aren‘t necessarily his views.  Don‘t you fear that those aren‘t necessarily his views? 

SESSIONS:  I‘m not concerned about it.  I think he has a history and a record of being faithful to the Constitution.  I think he will take the responsibility seriously. 

And if some case related to that comes up, he‘ll have analyzed it properly and faithfully.  I have a lot of confidence in that. 

I think President Bush has not disappointed.  He has given us perhaps the best lawyer in America for this court.  And I could not be more pleased. 

CARLSON:  But conservatives everywhere—all conservatives I know are terrified that this president will nominate, or any Republican president, will nominate another David Souter, someone who is sort of a blank slate philosophically who turns out to be, once he reaches the court, a liberal. 

How do you know that Judge Roberts isn‘t another David Souter?  Is there any evidence that he‘s deep-down conservative? 

SESSIONS:  Well, we don‘t know.  All we can say is, based on that record, is this a nominee that we think will be faithful to the Constitution and will not be the kind that Justice Souter has become? 

I think he clearly is.  He‘s had a record of faithful performance.  He‘s spoken out on issues that indicate his commitment to the classical American principle of the judge being a neutral umpire.  I‘m very comfortable that he‘s going to be a wonderful jurist, maybe one of the best in our nation‘s history. 

CARLSON:  There‘s a tradition of not asking nominees to the high court their specific opinions on specific cases, like Roe v. Wade.  Why is that?  And why is it considered verboten to say point-blank to a nominee, “What do you think of this?”  Why‘s that wrong?

SESSIONS:  It‘s absolutely wrong.  I mean, we cannot make a nominee answer our question about how they‘re going to vote on a case that has not come before them as a price for their confirmation.  That destroys the independence of the judiciary that our founding fathers worked so hard to create going to the extent of giving them a lifetime appointment.

So, no, you can‘t ask them about a case that may come before them.  They should, before deciding any case, read the briefs, hear the arguments, think about it, do their research, talk to their clerks and other judges.  To ask them on the floor of the Senate and expect them to answer prematurely how they would rule on a case is wrong in every respect.  Nobody can justify that. 

CARLSON:  But, Senator, the question was more about how they would have voted on a case that was settled, you know, 32 or 33 years ago.  What‘s wrong with that?  It‘s already settled.  It‘s already law. 

SESSIONS:  Would have settled?  Would have settled?  I mean, cases like that may come before you again.  So you say, “I like that case.  I didn‘t like that case.”  And then one similar comes up, and somebody expects them to vote just like they promised to vote back at the Judiciary Committee. 

Judges cannot be required to do that.  They must not be required to do that.  It goes against our historical precedent in the Senate.  And only a few people in recent years have started saying that a nominee could be expected to tell how they view cases and cases that might come before them. 

CARLSON:  Quickly, Senator, a political question.  Do you think there‘s any chance that any of the 55 Republicans in the Senate will bolt and vote against this nomination? 

SESSIONS:  I think there‘s almost zero chance that that would happen, because he‘s such a fabulous nominee.  He was a marvelous witness on his behalf.  He‘s argued 39 cases before the Supreme Court. 

He‘s probably the premier lawyer in America before he went on the bench.  He has the respect of Democrats, as well as Republicans.  He‘s served in Reagan and Bush administrations.  I think he‘s a superb nominee, the kind of person that we would hope to be nominated. 

CARLSON:  All right, Senator Jeff Sessions from Alabama, thanks a lot for joining us. 

SESSIONS:  Thank you. 

CARLSON:  I still don‘t—while I respect Senator Sessions very much I still don‘t understand.  And there‘s a consensus on this question, that you‘re not—that it‘s somehow wrong to ask these questions. 

If I asked you, what do you think about the outcome of World War II?  I think you‘re within your rights to answer me, and I‘m within my rights to push you to answer, because it‘s relevant. 

ABRAMS:  And there‘s something dishonest.  I mean, all of them right. 

I mean, Senator Sessions is right, that...

CARLSON:  And it‘s not just Senator Sessions.  I mean, virtually every senator gives the same answer. 

ABRAMS:  That‘s right.  In the Clinton administration, it was the same answer, which was you can‘t ask a judge that question.  You can‘t ask a judge to tell you what you his position is going to be on a particular case. 

But there is something dishonest about it, because there‘s no question that they have opinions about...

CARLSON:  Well, these are smart people who spend their lives in the world of ideas thinking about what‘s right and what‘s wrong.  So of course they have an opinion on it. 

ABRAMS:  Right.  It‘s like being around at a cocktail party...

CARLSON:  Right.

ABRAMS:  ... eating dinner with people who aren‘t going to be potential nominees to the appellate court, and saying to someone, “What did you think about that case?”  “I can‘t talk about it.”

CARLSON:  I‘m made uncomfortable by the idea that someone—especially about things that have already passed, history.  You know, thinking about history informs our views of the present. 

ABRAMS:  And the reason is—and here‘s where politics and the courts intersect—because whatever answer they give will be used against them politically.  It‘s really not a legal courts question. 

It‘s a question of, how will what they say be used against them politically?  And it will be.  There‘s no question that, if a judge starts answering questions about specific cases, it‘s not really about them prejudging.  It‘s about the fact that, whatever they say is going to be used—“You have the right to remain silent,” and they do. 

CARLSON:  But then you wonder if the process itself doesn‘t weed out the more interesting potential candidates.  And you sort of wind up with pallid, careful people. 

ABRAMS:  But as long as everyone doesn‘t say anything, there‘s sort of this agreement of a conspiracy of silence.  You know, it all sort of—everyone‘s on an equal playing field. 

CARLSON:  All right, Dan Abrams, thank you. 

All right.  We‘ll be back with much more, including an advocate who may be weighing in on the long battle that Judge Roberts is about to undergo to make it to the Supreme Court.  We bump into a commercial here with a rally outside the Supreme Court.  Those are supporters of Judge—possibly soon to be Justice John G. Roberts, Jr.


CARLSON:  Tonight on THE SITUATION, President Bush picks his first Supreme Court nominee.  What kind of battle is brewing in the Senate?  And are there more nominees on the way? 

What else, Willie?

WILLIE GEIST, PRODUCER:  Tucker, while you‘re flapping your gums about the Supreme Court, I‘ll be talking about some outrageous legislation that would make antifreeze less delicious. 

CARLSON:  Yum.  All that and more, tonight on the SITUATION at a special time, 11:00 p.m. Eastern.  See you then. 


SEN. CHUCK SCHUMER (D), NEW YORK:  Now that he is nominated for a position where he can overturn precedent and make law, it is even more important that he fully answers a broad range of questions. 


CARLSON:  Senator Chuck Schumer of New York, offering part of the Democratic response, which is not very aggressive so far.  But perhaps we‘ll get something different from Elliot Mincberg.  He‘s the legal director for People for the American Way, a liberal interest group that possibly may oppose Judge Roberts‘ nomination. 

Mr. Mincberg, thanks a lot for joining us. 

ELLIOT MINCBERG, PEOPLE FOR THE AMERICAN WAY:  Pleasure to be with you, Tucker. 

CARLSON:  So Democrats seem to like him so far.  I mean, the response has been pretty restrained.  Do you find anything not to like about the judge? 

MINCBERG:  I don‘t think I‘d characterize it quite that way.  What they‘re really saying is, we need the process to go through, because this is a judge with a very short record.  We need some real answers to questions. 

CARLSON:  I‘ve heard that a number of times.  Like what questions? 

MINCBERG:  Well, you and Dan were just discussing that.  The fact of the matter is, Republican senators, like Arlen Specter, and even John Cornyn, recently agreed that, of course, you can‘t ask a judge what he will do in the future, but it‘s perfectly legitimate to ask past-looking questions, about Brown versus Board of Education.  “What did you think of that decision?”

Roe vs. Wade, “Is there right to privacy under the Constitution?”  “Tell me how you would interpret the equal protection clause,” all these crucial, crucial issues.  And there is a lot in John Roberts‘ record already that is troubling. 

CARLSON:  Well, give me an example of that.  What do you find most troubling, most troubling? 


MINCBERG:  Well, a couple of examples.  I think it‘s already been discussed, the action he took as the political deputy of the Bush administration in arguing that Roe vs. Wade should be overturned in a case that didn‘t even raise that issue. 

Was it his role simply to carry out policy, or did he help make that policy?  That‘s a reasonable question. 

CARLSON:  Well, I believe in the quote that at least is being distributed tonight—it‘s on the Web sites on all the liberal interest groups—I think he makes the point that the right to abortion is not in the Constitution, explicitly, anyway.  And of course, it‘s not.  So what‘s wrong with that? 

MINCBERG:  Well, that‘s correct.  But the question is, not what is and isn‘t explicitly in the Constitution, but what is his view of precedent on the issue of the right to privacy. 

Most jurists agree, conservatives, liberal alike, that there is a right to privacy of some sort in the Constitution.  What does John Roberts think about that?  There have also been at least one example of a decision when he was on the court of appeals where the court approved the constitutionality of the Endangered Species Act. 

John Roberts was one of only two even Republican conservative judges on the court of appeals to argue that they should reconsider that issue, which strongly suggests there‘s serious concerns about him and this whole Constitution in exile... 


CARLSON:  Well, it‘s likely he‘s a conservative.  He‘s a member of the Federalist Society.  He has been put up by a relatively conservative president. 

A, should that surprise you?  And, b, philosophically, how can you have a problem with that?  This is a president who‘s been elected twice.  His party has the majority in both the House and the Senate.  Doesn‘t he have the right to appoint judges who have his same philosophy about the world? 

MINCBERG:  He‘s got the right to nominate, but the founders said that this was something that the Senate and the president determined, and particularly here, where you‘re talking about Sandra Day O‘Connor, who‘s been a swing justice on so many of these issues.  So many of our rights and liberties hinge on 5-4 decisions that she was the fifth vote on. 

CARLSON:  Right.

MINCBERG:  It‘s absolutely critical to see what a nominee‘s philosophy would be.  We are disappointed that President Bush didn‘t try to do what President Reagan did in approving Justice O‘Connor, and picking somebody who is...

CARLSON:  Who turned out to be liberal in the end?

MINCBERG:  Well, look...


CARLSON:  ... I‘m sorry to interrupt...

MINCBERG:  ... that we disagree with, too.  But she‘s been a moderate conservative.  And that‘s what‘s important. 

CARLSON:  Let me get right to the—very quickly to the essence of it.  Do you think this judge is going to be confirmed? 

MINCBERG:  I don‘t think we know now.  I think a lot‘s going to depend on the hearing.  Look at two examples.  David Souter, we had a lot of troubling questions and concerns about him.  He answered a lot of those questions.  And People for the American Way didn‘t oppose him. 

Miguel Estrada, we had serious concerns about him, as well. 

CARLSON:  Oh, yes. 

MINCBERG:  He refused to answer any questions on his judicial philosophy, wouldn‘t fill out his job application, as a number of the Democrats put it, and he didn‘t wind up getting on the court of appeals. 

CARLSON:  No, he didn‘t.  He bowed out. 

MINCBERG:  The hearings are going to be absolutely critical in determining what happens with Judge Roberts and the Supreme Court.


CARLSON:  And I suspect, Elliot Mincberg, we‘ll be talking to you during them.  Thanks a lot for joining us.  We appreciate it.

MINCBERG:  My pleasure. 

CARLSON:  All right. 

Now we go to David Shuster, still standing by on Capitol Hill, the “HARDBALL” correspondent.  David, have you learned anything about Judge Roberts? 

SHUSTER:  Yes, we‘ve learned, Tucker, that he will be having breakfast with President Bush tomorrow.  And then he‘ll go through the photo ops here on Capitol Hill with Senate Majority Leader Frist.

And then Judge Roberts will go about the process of rearranging his life, to start answering some of these questions and going through the vetting process. 

And on a rather humorous note, there are some law students in London tonight who were initially very happy to hear that Judge Roberts was nominated, and now a little bit disappointed.  Judge Roberts was teaching a law school seminar through Georgetown University in London.  The students were scheduled to take a final exam in three weeks.  We are advised that exam is still on. 

Tucker, back to you. 

CARLSON:  Oh, I‘m not sure that‘s a good sign.  He sounds like a hanging judge to me.  David Shuster on Capitol Hill.  Thanks a lot for joining us. 

Dan, I just want to end with where we began, which is the Democratic response.  Unless we hear something very different later tonight or tomorrow, I am surprised by how restrained it is. 

ABRAMS:  It sounds like we‘re not going to hear anything until the hearing starts.  It sounds like the guns have been put away for now.  They‘re going to see what they get, coming up to the hearing. 

But you know, you hear your last guest talk about the Endangered Species Act.  And I am not going to minimize it, but the bottom line is, this nomination is not going to rest on his opinions on the Endangered Species Act. 


ABRAMS:  It‘s just not going to happen.  I mean, they may be able to nail him on an issue like that and say, you know, “He‘s out of the judicial mainstream.”  I‘m not saying he is, but let‘s say that they can. 

It‘s not going to resonate.  They‘re going to have to get him on something that the majority of Americans care about. 

CARLSON:  Well, then I wonder if they may not give him a pass?  I mean, there‘s a strategy here.  He‘s not likely going to be the last nominee this president puts forward. 

It‘s a very old court.  By the end of Bush‘s term, you‘ll have at least one justice who‘s almost 90 years old.  There are going to be other retirements.  Could they be giving Judge Roberts a pass, waiting for the second or maybe even the third to go nuclear? 

ABRAMS:  I think they absolutely could, once the vote starts.  But expect that the same people, in particular, who opposed him for the D.C.  Circuit, Kennedy, Schumer, are going to give him a real hard time, want to ask him questions that he‘s not going to want to answer. 

They‘ll ask him questions about the right to privacy in general.  He‘ll give a broad, vague answer.  We can really almost write out the question-and-answer now as to what he will say.  And you will hear people complaining about the fact that he‘s not saying enough and that he‘s not answering the questions fully.

But the bottom line is, I don‘t see how the Democrats are going to be able to keep him out, if they do try. 

CARLSON:  Don‘t you think we‘d all be better served if the people who opposed him would be straightforward about their reasons for opposing him?  “I‘m against you because I believe you‘d overturn Roe v. Wade.”  And if, in turn, the nominee—whomever, including this one—would say, “That‘s right.  If I make it to the court, I will.” 

ABRAMS:  Because neither of them are going to be honest.  In the first case, they‘re not going to be able to prove it.  And the second case, even if he would do that, he‘s not going to admit it.  And so you‘re faced with a situation where, you know, everyone‘s...

CARLSON:  See, but one of the reasons that people always say, you know, “Abortion is one of those subjects nobody‘s mind is ever changed,” is because the argument is almost never heard.  You almost never hear—people talk in code when they talk about abortion. 

ABRAMS:  Yes, and they‘ll continue.  They‘ll talk about privacy. 

CARLSON:  I hate that. 

ABRAMS:  Liberty. 

CARLSON:  Euphemisms.  On this show, we speak in direct language.  And we will be again tonight. 

Dan Abrams coming back at 11:00 p.m. to join our panel.  THE SITUATION live at 11:00.  But now “SCARBOROUGH COUNTRY” and Joe Scarborough.  See you in an hour.



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