This is a RUSH transcript from "The O'Reilly Factor," May 26, 2009. This copy may not be in its final form and may be updated.
Watch "The O'Reilly Factor" weeknights at 8 p.m. and 11 p.m. ET!
BILL O'REILLY, HOST: In the "Is It Legal?" segment tonight: two front-page situations, beginning with President Obama selecting federal Judge Sonia Sotomayor to replace David Souter on the Supreme Court. Basically that's one liberal replacing another, but how far left is Mr. Obama's selection? With us now, our "Is It Legal?" team has been investigating, attorney and FOX News analyst Lis Wiehl, author of the big book "Face of Betrayal" and attorney and FOX News anchor Megyn Kelly.
All right. So if you listened to conservative talk radio today, they just nominated Karl Marx to the Supreme Court. And I say that with all affection. But really, I mean, you know, she's a racist, she's this, she's that. This is what the right-wing talk radio guys are putting out. I'm looking at her record. There are some disturbing things about it.
MEGYN KELLY, CO-HOST, "AMERICA'S NEWSROOM": Yeah.
O'REILLY: What do you say?
KELLY: The most trouble she's going to run, into as far as can I tell, is remarks she's made in speeches not so much in her opinions, although everybody is still poring over her opinions and she's been on the bench for a very long time.
O'REILLY: The one thing that opened my eye was the New Haven, Connecticut, affirmative action thing…
O'REILLY: ...where she ruled that black firefighter candidates could have lower scores than whites and get the job, right?
KELLY: Well, something like that. The whites had outscored the blacks on the test, and they were therefore supposed to get the promotions.
KELLY: The department rather than giving them the promotions said since no minorities are now eligible for the promotions, we're not giving anybody promotions.
O'REILLY: Isn't that social engineering?
KELLY: Well, and so take it up with the New Haven Fire Department. So they came out and said so nobody's getting promotions. So they sued. And the trial court ruled against the white firefighters. And then the Second Circuit of Appeals in an option that Sotomayor joined said yeah, we uphold the trial court's decision.
O'REILLY: Do you think that was a good opinion?
LIS WIEHL, FOX NEWS LEGAL ANALYST: Yeah, I mean…
KELLY: They punted the decision (INAUDIBLE).
WIEHL: But you know that they always punt. They only don't punt if you're overruling a lower court.
O'REILLY: But look, here's what Americans are going to say. Look, these white firefighters deserved to get the promotion.
O'REILLY: They passed the test. This is what the standards of achievement were in New Haven. They didn't get the promotion because of some racial stuff, right?
WIEHL: Well, that's what the people are going to say. But look, she only signed off with two other judges. She didn't come out with an opinion and say this is what's going on.
O'REILLY: No, she agreed with the…
KELLY: No, she's responsible for the decision.
O'REILLY: She's responsible for that.
KELLY: And let me tell you, this is controversial because when she adopted the lower court opinion, it therefore became law. And you don't leave a matter like this. This is a huge decision.
O'REILLY: It's going to the Supreme Court.
KELLY: But listen, but you don't leave a matter like that based on the district court opinion. You as a court of appeals owe it to the people within this district.
O'REILLY: So that's where — look, I looked at her record. I'm no lawyer, but it looks like she's fairly tough on crime, Wiehl, right?
WIEHL: She's very tough on crime.
O'REILLY: Is he tough on crime?
WIEHL: She's tougher on crime than Souter. I mean, we're going to have to…
O'REILLY: Well, thank God. I mean, Souter was Al Capone's favorite guy. Is he still — no, he's dead. All right.
WIEHL: But I think it's a good thing for Americans that she's tough with law enforcement. She sides with law enforcement.
O'REILLY: OK, but is there any validity to the right-wing commentator saying the woman uses race, not the Constitution as a barometer for her legal rulings?
KELLY: Well, they're basing that on this…
O'REILLY: That opinion?
KELLY: ...speech — no, on this speech. Listen, and not so much on the affirmative action.
O'REILLY: What speech?
KELLY: The speech she made at the University of Berkeley back in 2001, where she was talking about what it is like to be a Latina…
KELLY: ...and a woman and a judge and how does that impact decisions that are made on the bench. And she was very honest to say, look, I have to say it affects decisions that are made on the bench.
O'REILLY: Well, everybody's background does.
KELLY: And so far, that's OK, right?
KELLY: So she's not out on a limb there. But then she goes on to say and I'll quote it for you. She says "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that long."
O'REILLY: Should I be offended by that?
KELLY: That's the problem. Yes, that's a problem.
O'REILLY: That's the problem? What do you think, Wiehl?
WIEHL: (INAUDIBLE) white man, it's a white man.
KELLY: It's one man said…
O'REILLY: Hold on, I got yours, Kelly, I got yours.
WIEHL: In one statement she's talking about her background and how her background…
O'REILLY: Whoa, whoa, but say, look, is that a problem, Wiehl?
WIEHL: No, I don't see it as a problem.
O'REILLY: Saying a Latina judge reaches a better conclusion based on her race than a white guy, that's not a problem?
WIEHL: She's — it's not just based on race though. It's based on her experience. And she's saying more often than not. She's not saying all the time.
KELLY: How does that excuse it? Based on her experience, what? Based on her experience, she's just a better judge because she's Latina and she's female?
KELLY: That's racism.
WIEHL: ...she's just saying that she's saying I'm hoping that I could come to a better decision than a white guy. I don't see that being a problem for her…
WIEHL: ...going down the future.
KELLY: How is that not problematic? If a white — if Sam Alito had said I would hope that a white male, based on his experiences, would come to a better decision every time than a Latina, they would skewer him.
O'REILLY: They'd kill him, they'd kill him.
KELLY: That would be a deal-breaker and he'd be off.
WIEHL: (INAUDIBLE) all the time. And I think that she — she would have been skewered if she didn't come out and say look, my background does have an impact on me.
KELLY: That's not what she said. The rest of the speech is fine. I started by saying that…
O'REILLY: OK, I got to stop you.
KELLY: You can't (INAUDIBLE).
O'REILLY: She wins, you lose, Wiehl. On that one she kicked your…
WIEHL: That's one comment.
O'REILLY: I can't say the word, but you know what. She kicked you, you got kicked, Wiehl, on that one. Because but that is one comment. And you can't judge a person's…
O'REILLY: ...whole career on one comment.
O'REILLY: But coupled with the New Haven ruling, it looks like an activist judge.
WIEHL: And I've looked at other rulings in civil rights.
O'REILLY: I looked at the criminal stuff, too. It looks good.
Content and Programming Copyright 2009 FOX News Network, LLC. ALL RIGHTS RESERVED. Transcription Copyright 2009 CQ Transcriptions, LLC, which takes sole responsibility for the accuracy of the transcription. ALL RIGHTS RESERVED. No license is granted to the user of this material except for the user's personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon FOX News Network, LLC'S and CQ Transcriptions, LLC's copyrights or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.