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John Ashcroft on the Alito Hearings

This is a partial transcript of "The Big Story With John Gibson," January 9, 2005, that has been edited for clarity.

JOHN GIBSON, HOST: A huge day on Capitol Hill where opening statements took place in the Samuel Alito confirmation hearings. The president's pick for the Supreme Court told senators that good judges don't have an agenda, don't look for partisan outcomes and always do what the law requires.

But there is a lot on the line for the president and both parties this election year and it could get real rough Tuesday when the questioning actually begins.

Joining us now for an exclusive interview, former Attorney General John Ashcroft. Mr. Ashcroft, thank you very much for joining us.

There was nothing but statements from the Judiciary Committee members, but one had to be struck, I think, by Sen. Charles Schumer of New York's statement that the people who were so upset by Harriet Miers, love you Judge Alito, and we want to know why. Do you have an answer?

JOHN ASHCROFT, FORMER U.S. ATTORNEY GENERAL: I think the people like this nominee because he is perhaps the best qualified nominee in the history of Supreme Court appointments. He has had tremendous public service after the best of education, has hundreds of opinions that are written. They are opinions which assiduously follow court precedent, the rule of law, have great respect for the Constitution and statutes, do not inject the views of the nominee in the opinions. He, of course, as writing the opinions, has been a judicial officer. So, those are very good reasons for the people to like this nominee.

And I find it to be rather interesting the fastball they throw a nominee is the fastball of explaining why people trust you and like you. I think there are really good reasons in this situation and I think that's why the president nominated Judge Alito for a seat on the United States Supreme Court.

GIBSON: General Ashcroft, is this anything about anything more than abortion?

ASHCROFT: Oh, I think there will be an effort to try and open other fronts, so to speak, in this confirmation process. It's interesting to note that when Judge Alito has written on abortion, he has twice struck down efforts by states to regulate abortion because they contravened what the Supreme Court had said about abortion, and on another occasion, he upheld the regulation.

But it's clear that his judicial philosophy is the rule of law. And in the event that he sees the law and what the law says and what the precedent requires as being adverse to the regulation, he is against the regulation and has been for it only when he thought that it was consistent with the rules that had been elaborated by Supreme Court decisions.

GIBSON: General Ashcroft, one of the other criticisms of Judge Alito, from conservatives even, especially some of my libertarian judge friend conservatives, is he sides too off often with the government, that he has been a government lawyer his whole life, his inclination is towards the government. Now I realize you were most recently attorney general, you were the government, but there have been other times where you have been outside the government in a conservative railing at liberals. Does this predilection for supporting the government bother you even in the slightest?

ASHCROFT: You know, I think his predilection is to support the Constitution and not the government. And there are limits. And I think this judge would clearly indicate there are limits to what the government can do. But when the Constitution is our reference and the statutory law is brought in with the Constitution, of course the Constitution is always the supreme law of the land, he is going to orient his decision making to those lode stars that guide rule of law thinking and that is to live by the Constitution and he doesn't give me pause in that respect.

He does have an intense devotion to rights and liberties of individuals, but when the Constitution provides the president with authority to protect those rights and liberties, he's going to side with presidential power.

GIBSON: Back to this Roe v. Wade business. Two senators, Brownback and Coburn, based their opening remarks Monday on the issue of abortion and that rests on the constitutional right to privacy. If one is looking at the Constitution, as Judge Alito will, and we assume he will, based on your remarks, where does Judge Alito find or not find the right to privacy?

ASHCROFT: Well, the Constitution doesn't explicitly refer to a right to privacy, but it is said to be found implicitly in the Constitution in the rights that individuals have to a variety of their own activities. I can't speak for Judge Alito in this matter, but I believe that he would be most careful in his examination of the Constitution and his interpretation of the Constitution and substantially respectful of what the courts have done previously in an effort to make sure that he was acting in a way that is consistent with his fundamental philosophy that the rule of law should prevail.

People should be able to understand what the law means and live by it, and not expect judges to be having judge-made law, change the law on a regular basis.

GIBSON: Former Attorney General John Ashcroft. General Ashcroft, it is good to see you. Thank you for being here today.

ASHCROFT: Great to be back with you.

GIBSON: Thank you.

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