Video: Right for the court?

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updated 11/4/2005 1:58:15 PM ET 2005-11-04T18:58:15
TRANSCRIPT

President Bush has suffered another setback when it comes to the vacancy on the Supreme Court. It was announced on Thursday that Jan. 9 will be the official start date for the confirmation hearings for Judge Samuel Alito. Bush had hoped to get a confirmation before the end of 2005.

While some Democrats have already floated the idea of filibustering the nominee, it appears after actually reading through his 300 rulings and speaking with his former co-workers, they may have spoken a bit too soon. 

With groups on the left now are apparently warming to the nominee, 'Wall Street Journal' columnist John Fund joined Tucker Carlson on Thursday's ‘Situation’ to discuss whether what may be Alito's true political leanings.

To read an excerpt of their conversation, continue to the text below. To watch the video, click on the "Launch" button to the right.

TUCKER CARLSON, HOST, ‘SITUATION’:  The “Times” had a bunch of pieces about this today, suggesting that possibly Judge Alito is not the fire-breathing right-winger we thought, or some of us hoped he might be. 

One quote struck me particularly.  Jeff Wasserstein, a Washington lawyer who clerked for Alito in 1998, said this to the 'L.A. Times': “I’m a Democrat who always voted Democratic except when I vote for a Green candidate, but Judge Alito was not interested in the ideology of his clerks.  He didn’t decide cases based on ideology.  His record, not extremely conservative.”

This is a serious leftie saying, “This guy is not so conservative.” 

What do you think of that? 

JOHN FUND, COLUMNIST, “WALL STREET JOURNAL”:  Well, I’ve talked to Mr. Wasserstein as well, and various other people who have worked for Judge Alito.  He’s a judges’ judge. 

The job of a federal appeals court judge is to follow Supreme Court precedent.  Obviously, you have some leeway, but it shouldn’t surprise us that some of his cases fall on one side, for example, the abortion issue, and some would fall on the other side. 

He is someone who looks at the facts of each case and through the prism of the Constitution.  He’s not result oriented, which is what, frankly, a lot of liberal judges have been over the last generation, and that’s part of the problem.  When the judges become more acting like a legislature, we have a complete breakdown of the rule of law. 

CARLSON:  Well, theoretically, we do, but also there’s a political element to this.  It is by design a political process, and the president’s conservative supporters want a conservative Supreme Court justice to fill Sandra Day O’Connor’s seat. 

So here you have four abortion cases on which he has ruled since becoming an appellate judge.  Three out of the four apparently he ruled on the side, what we would call the pro-choice side.  In one case, he ruled that the Constitution does not afford protection to the unborn.

This guy doesn’t appear to be as opposed to legal abortion as we assumed he was.

FUND:  Any appeals court justice who does not follow Supreme Court precedent is going to be completely marginalized.  I will simply say, Judge Alito has been a proud member of the Federalist Society over 20 years.  That should say something and mean something. 

CARLSON:  Explain both of those.  What do you mean by following Supreme Court precedent in these cases?

FUND:  The job of an appeals court judge is to take the various cases that come to him, and because not everything can go to the Supreme Court, thank goodness, actually, and apply the Supreme Court precedents to the cases. 

Obviously, there’s some interpretation, there’s some leeway.  But you cannot directly contradict the Supreme Court of the United States.  That’s not your job.  That’s why being on the Supreme Court is so important and frankly, Tucker, such a cool job. 

CARLSON:  So in other words, just to make it totally clear for our viewers, because Roe v. Wade is the law of the land, as settled by the Supreme Court, he can’t rule contrary to that as appellate judge. 

FUND:  Exactly. 

CARLSON:  Also, explain the Federalist Society.  You pointed to that as sort of a badge of his conservatism.  Is it?

FUND:  Yes.  The Federalist Society is a group of conservative and libertarian lawyers.  They often have debates and invite liberals in, as well. 

These are people who believe in the original intent of the Constitution.  They believe the Founding Fathers meant something when they wrote the document.  They believe, inasmuch as possible, given changing circumstances and new technology, we should try to follow the original constitutional blueprint. 

We shouldn’t make up rights.  We shouldn’t have the courts act like legislature, when the court’s job is simply to be a referee and umpire. 

And the Federalist Society is basically the center of intellectual legal life in this country from a conservative point of view. 

CARLSON:  Finally, we’ve seen a lot of testimonies, from liberal judges on behalf of Judge Alito.  It looks like a White House campaign to make it seem as if he’s not as conservative as he is.  Is that going on?  What is the White House doing to sell him?

FUND:  The same thing they did with John Roberts.  He is a great intellect.  He is someone who’s likable.  He’s someone who doesn’t breathe fire.  He’s someone whose clerks, regardless of whether they’re liberal or conservative, like him, and whose rulings are predicated on the rule of law, not some result oriented outcome based on his personal beliefs. 

In other words, he is going to be Judge Roberts’ slightly less socially skilled younger brother. 

Watch 'The Situation with Tucker Carlson' each weeknight at 11 p.m. ET

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