• With: Alberto Gonzales

    This is a rush transcript from "On the Record," April 5, 2012. This copy may not be in its final form and may be updated.

    GRETA VAN SUSTEREN, FOX NEWS HOST: OK, so how would you like to be Attorney General Eric Holder tonight? His boss just dragged him into a mud fight, resulting in the attorney general getting a homework assignment from the court with a deadline. And he completed his homework by the deadline.

    So how did he do? Judge Alberto Gonzales, former United States attorney general under President George W. Bush, joins us.

    Good evening, sir.

    ALBERTO GONZALES, FORMER ATTORNEY GENERAL: Good evening, Greta. How are you?

    VAN SUSTEREN: I'm very well. So tell me, what do you think? When the attorney general saw this fight going down this week and he got a homework assignment -- you've been in his seat, maybe under different circumstances. But what do you think he thought?

    GONZALES: Well, you know, listen, you have an order from the court. You have your obligation to respond to it. And obviously, there are other pressing matters for the attorney general of the United States, but nonetheless, one of his responsibilities is to respond to an order from the court, and the attorney general did so.

    VAN SUSTEREN: All right, you're a former judge in Texas, as well as a former United States attorney general. I'm curious whether you thought that the judge's order from the United States court of appeals was fair play or whether it was being a little bit petty by sending that after the Justice Department lawyer had clearly answered it before him, and it wasn't even sort of related to their discussion.

    Was the -- let me ask you, that U.S. Court of appeals judge -- was he being fair? Did he not know the answer? Did he not know that the Justice Department would answer that way, or was he being petty?

    GONZALES: Listen, I think Judge Jerry Smith is an outstanding justice, but he knows the answer to this question. And if I were in his shoes, I'm not sure that I would have done the same as he requested. But I'm not going to second guess the justice here.

    You know, this is a very important issue. And obviously, the statements made by President Obama created great deal of controversy. He quickly backpedaled from those comments, and the Department of Justice has made it clear that this administration understands that, of course, it is within the constitutional responsibility of the courts to determine the constitutionality of any statute passed by Congress.

    VAN SUSTEREN: All right, let me focus on what he said the second day, about essentially the ends justifying the means, in which he made the statement, he said, Look, this is a great bill because, for instance, kids can stay on their parents' health care longer, and basically saying, you know, this should be constitutional because it's a good product.

    He didn't address the fact whether the mandate was constitutional or not. What's your -- do you agree with me that that's sort of a more poisonous discussion because it is a little bit less obvious as to being sort of a departure in how we do a constitutional analysis?

    GONZALES: I don't think that the court should take that into consideration, quite frankly. The question is whether or not, does the Constitution allow the Congress and this administration to impose this kind of mandate.

    I'm of the mind this is going to be a very close question for the court. I think the court's going to struggle with this question. They're also going to struggle with the question -- if, in fact, the mandate is deemed unconstitutional, they're going to struggle with the question of severability.

    I want to get back to a point you made earlier in your -- talking to Congressman Smith about intimidation of the court. The truth of the matter is -- and I think you're absolutely right. I can't imagine justices who have life tenure are going to be intimidated by the statements of the president, who may be out of a job in eight or nine months.

    So for that reason -- President Obama's very bright. I don't think his audience was the court. I think it was the American people. I think it was for his base. I think there may be concern about the fact that maybe the court may not go his way. And rather than accept responsibility for misjudging the Constitution, you know, perhaps they're looking for a way to blame the court as doing something that the court shouldn't be doing.

    So I think I disagree with those who believe that this president was trying to intimidate the court because I just don't think the court is going to be intimidated by the president on this issue.

    They have read thousands of pages of briefs. They've heard hours of argument, and that's the basis on which they're going to make this decision.

    VAN SUSTEREN: All right, we only have 30 seconds left, but sort of the interesting other aspect of it is there's no scientific formula for determining the breadth of the commerce clause and whether it includes this mandate, is there. I mean, it's -- it's sort of -- in a lot of ways, it's sort of, you know, subjective by these justices and whoever gets the more votes wins.

    GONZALES: No question about it. But you need to watch carefully as to whether or not Kennedy's question as to whether or not the market for health care is so unique that that may be a limiting factor. I think that's something that we need to watch carefully.

    VAN SUSTEREN: Judge Gonzales, nice to see you. Thank you for joining us this evening.

    GONZALES: Thanks for having me, Greta.