Could There Be Roadblocks for Roberts?

This is a partial transcript from "Hannity & Colmes," August 4, 2005, that has been edited for clarity.

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BOB BECKEL, GUEST CO-HOST: There were two new stories in the confirmation battle over John Roberts (search) today. The Los Angeles Times reported today that Roberts did some work for gay rights activists in the 1990s. The judge didn’t include that in his Senate Judiciary Committee questionnaire, and some people are wondering if it will provoke outrage from the conservative community. I hope so.

Meanwhile, as first reported by Brit Hume earlier tonight, The New York Times has been asking lawyers for advice about accessing the sealed adoption records of Roberts’ children. The paper says that only preliminary inquiries have been made.

Joining us now with reaction is former Clinton advisor, Dick Morris.

Dick, welcome, my old friend. Let me start...

DICK MORRIS, FORMER CLINTON ADVISOR: This is why nobody wants to serve on the Supreme Court.

BECKEL: Exactly.

Don’t do me any favors, Mr. President.

BECKEL: That’s right. You don’t want the next job I take.

Let’s start with this gay rights issue. First of all, I think it’s great. And the other thing was -- the other important part of this is he also did work for a homeless group in Washington, D.C., on Medicaid rights. Do you really think this will cause him problems with conservative groups?

No. And I think it will help him get confirmed. Because they can’t paint him now as a doctrinaire right wing extremist.

Look, it’s so ironic in this country. If he had done pro bono legal work for a murderer, nobody would raise any questions.

BECKEL: Right.

But for a gay group or a homeless group, they’re raising questions.

The fact is, that lawyers do pro bono work, whether they agree with the cause or not. But I do think the fact that he did argue a case for the gay rights group, I think, will be helpful. After all, remember how everybody tried to go after Ken Starr (search ) because he’d done pro bono work for Paula Jones? This is the opposite of that.

BECKEL: You know, I think you’re exactly on the money here. My reaction when I read this was, good for him. And not only that, it didn’t appear to be like he’d said about his comments about Roe v. Wade (search ), which obviously reflected my client’s position.

Everybody involved in that gay rights case said that he was very thorough. He worked up right through, did mock trials and all that sort of thing.

We’re missing the broader context of the Roberts nomination. George Bush (search ) made a brilliant political move. The Democrats thought that in filibustering those 10 nominees they were revving up for the big fight, the big enchilada, the Supreme Court.

But the fact was they we’re giving the other 90 that they didn’t filibuster a pass. And all Bush needed to do was go down the list of the 90, find the most conservative and appoint him.

BECKEL: You know, this is what I think about my side on the Roberts thing. It was like a NASCAR race, everybody is waiting to go -- they go and see, waiting for the crash to happen. And it didn’t happen.

But getting back to this, on the gay rights, I’ll tell you Sean, this, from the left standpoint, this is very important to us. And I think -- frankly, I would find it very difficult standing up and saying for a guy who did that, you know for me, I would feel very strongly about this.

Particularly if you voted to confirm him two years ago.

BECKEL: Exactly right. He’s going to get it.

What do are you going to say? Lower court nominations don’t matter when you filibustered 10 of them?

SEAN HANNITY, CO-HOST: Let me tell you what conservatives are saying, Bob, and it doesn’t have anything, really, to do with the gay rights case, with the Romer case, although it is a pivotal issue in that debate. There’s no doubt about it.

I think what the concern, Dick, is, does this reveal his judicial philosophy? He worked hard. You’re right, the moot court sessions and he would outline, actually according to the "L.A. Times," played Justice Scalia (search ), and answered questions.

Right.

HANNITY: But the three dissenting voices in that case were Scalia, Thomas and Rehnquist.

Well, but let’s remember what the case was about. It was not gay marriage. It was not civil unions. It said that an owner or landlord could refuse to give housing to a gay person.

HANNITY: No.

Or that an employer could refuse to hire a gay person.

HANNITY: The Romer case was about...

Everybody has to live somewhere and work somewhere.

HANNITY: The Romer case had to do with the fact that the people of Colorado passed a referendum, 53-47 percent. And it’s a question of whether or not you believe the courts have the right to overturn the will of the people or not.

If the people passed referendum saying a landlord could refuse to rent to a black person or refuse to employ a black person as an employer, the courts would be justified in overruling that. And I think right now, if that case came up, it would be a slam-dunk. But back in 1992, it took some courage, and I applaud that decision.

HANNITY: Well, Scalia wrote a blistering dissent in this particular case and said that the court had no constitutional basis for its decision. It has nothing to do with sexual preference, but it’s whether or not the court intervenes in cultural and political disputes such as this.

At that point, Scalia’s point was that he did not want to take homosexuals and make them a protected category at any level. But I think we’ve gone past that.

HANNITY: Look, I’ve got to tell you something. Everything that I’ve been reading about him and his years working in the Reagan administration, his years working for William French Smith (search) and others, this guy has shown every sign that he had a sound originalist conservative philosophy.

When he answered these questions for the judiciary committee...

Right.

HANNITY: ... he said, look, it’s not our role to solve society’s problems. He showed that he believed in judicial restraint, not legislating from the bench. This raises questions for conservatives.

But come on.

HANNITY: Because does he believe that position or not? Is that his philosophy?

Two points. First, Scalia on the court today would probably vote with the Roberts point of view on Romer, because we’ve evolved in our attitudes.

HANNITY: No way.

And I think...

HANNITY: Scalia?

Scalia.

HANNITY: No way. Read his dissent in the case.

Yes, but that was ‘92. And I think secondly...

HANNITY: He’s no Ted Kennedy (search ).

No. But I mean, O’Connor and Kennedy and some real conservatives wrote in on that. And Sandra O’Connor wasn’t on it. I’m sorry. But secondly...

HANNITY: Kennedy...

...it does not reflect necessarily his point of view. He took a pro bono case.

HANNITY: All right, you just said this. But then why wouldn’t you take a pro bono case that also revealed your originalist ideology, because he didn’t have to take the case?

But he did. He probably did.

(CROSSTALK)

HANNITY: Let me -- the bottom line...

BECKEL: A couple points about this, I’ve got to think of with conservatives, and Sean is on the money here. Not only is this is referendum by the people; therefore you get the state rights issue, right? But he’s been fundamentally firm and so has Scalia.

And also the gay community called this the biggest single decision...

HANNITY: It is.

BECKEL: ...that they’ve had in their court battles. And the last thing I’ll say is, Roberts went at this enthusiastically. They went to him and said, "Do you want to take this on?"

He said, "Absolutely, I want to do it."

Hey, hey, hey, hey. A lawyer is obliged to represent his client enthusiastically. What lawyer would not want to represent someone in a pro bono case that would go up to the United States Supreme Court? It’s a close issue. And to hold against him the positions he took as an attorney or for him...

HANNITY: When you add this Romer case with Lawrence, you have now established basically the possibility of saying that you cannot afford the exact same legal protections...

BECKEL: I can’t afford not to get out of here. So I’ve got to do this. Coming up next...

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