Estrada Quits

This is a partial transcript of Special Report with Brit Hume, September 5, that has been edited for clarity.

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TONY SNOW, GUEST-HOST: After waiting for more than two years for the U.S. Senate to act, Miguel Estrada (search) withdrew his nomination Thursday to serve as a judge on the U.S. District Court of Appeals for the D.C. circuit. What does the future hold for the president's other judicial nominees?

Joining us to discuss the issue is the Chairman of the Senate Judiciary Committee, Orrin Hatch.

Senator Hatch, welcome.

SEN. ORRIN HATCH, R-UTAH: Nice to be with you.

SNOW: Let me ask first a question that a lot of Republicans, at least, have been raising. Which is, do you believe that what happened to Miguel Estrada, that is being denied a vote on the full floor by the threat of a filibuster was, itself, unconstitutional?

HATCH: Yes. I really do because the Advise and Consent Clause is clearly an up and down vote. All the man wanted was the dignity of a up and down vote. If they wanted to vote against him, they could have. The problem is the Democrats knew that we had at least 55 votes. And I think we would have gotten a few others had we been able to vote. But for the first time in history, they have filibustered a federal judicial nominee. And that should not happen because Advise and Consent means not obstruction. It means voting, up and down.

SNOW: There's been a great deal of discussion about the so-called nuclear option. That is a parliamentary ruling by the Senate parliamentarian that it simply needs a simple majority to vote on a federal judge. Would you have preferred to see that option used in the case of Miguel Estrada?

HATCH: I think that option ultimately will have to be used because we can't allow Democrats or Republicans to usurp the power, the nomination power of the president. We have an obligation to vote. Once these people reach the floor, there is an obligation on our part to vote up and down. But by using a super majority vote, because of the filibuster, they've basically subverted the very Advise and Consent clause that is Article II, Section III calls for in the Constitution.

SNOW: You have been friendly with Senator Kennedy (search) for a long time. You've worked together on a number of health-related bills. What is going on?

HATCH: Well, I'm not sure that Kennedy is the problem. He's one of…he may be part of the problem because…but the Democrats just don't seem to realize that what they're doing is subverting the process.

You know, Miguel Estrada, you know, intended to be a federal judge. He was nominated by the president and, in the end, became a political football and had to sit around for 29 months. Here is one of the leading appellate advocates in the country, has the unanimous, well qualified rating by the Democrat's own gold standard, the American Bar Association, who brought himself up by, you know, by his own boot straps. And is the epitome of the American dream with all the qualifications in the world and they shoot him down.

And by the way, they did so very unfairly. First of all, Miguel Estrada was treated differently from other nominees for the same position. For instance, John Roberts, he did wait for 12 years and nominated three times by two different presidents. But they never used a phony excuse of trying to get into the most…into the most…a fishing expedition into the most privileged documents at the solicitor general's office. Which even the seven living former solicitors general said…four of whom were Democrat leaders in this country, said should never be permitted. They used that as an excuse to shoot this man down and they did it in the most brutal fashion. It was really, really vicious stuff.

SNOW: There are several other nominations hanging. David Pryor, again has been promised the same treatment. You said before that you think they'll have to use the nuclear option. Do you foresee that being used on a U.S. Circuit Court of Appeals judge and do you think David Pryor will be the test case?

HATCH: Well, I call it the constitutional alternative. And what that means is the majority leader, myself, whoever, makes a motion, makes a point of order, a non-debatable point of order that the Advise and Consent Clause has been subverted. Ruling from the chair rules that that is correct, we should go immediately to a vote. The Democrats would then have to appeal the ruling of the chair and then, of course, the chair would rule…you know, we would have to have 51 votes to defeat that appeal. And if we did do that, we would have to vote up and down.

But the Democrats have said, if we actually use this constitutional mechanism, which they have used, I remember at least twice when Bob Byrd was majority leader. If we do that, they'll blow up the Senate. They're doing it anyway. There's a slow walk in the Senate. They don't want the Senate to be successful. They don't want this president to be successful.

I believe that it's one of the worst things…it's one of the worst conditions I've seen in the whole 27 years I have been in the United States Senate.

SNOW: OK. By the way, I misspoke. It's Bill Pryor. David Pryor, of course, being a former U.S. senator and governor of Arkansas.

Let's switch to Miguel Estrada again for a moment.

HATCH: That would be fine.

SNOW: Do you think he will be nominated again for the federal bench or for the U.S. Supreme Court?

HATCH: Frankly, he may very well. Once President Bush (search) gets re- elected, if there is a Supreme Court vacancy, I would be delighted if the president would nominate him for the Supreme Court. That's really why they stopped him. It wasn't because he didn't have the qualifications. Everybody knows that.

Their own gold standard, The American Bar Association rated him unanimously well qualified, it’s highest rating. No, they wanted to stop him because they didn't want President Bush appointing a Republican, conservative Hispanic who may be pro-life and who is on the fast track…was on the fast track to the Supreme Court. I think the president may very well consider that and he ought to.

SNOW: All right. Senator Orrin Hatch, thank you so much for joining us today.

HATCH: Nice to be with you.

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