'Special Report' Panel on Reversal of Opinion That Sotomayor Took Part In

Published June 30, 2009

| FoxNews.com

This is a rush transcript of "Special Report With Bret Baier" from June 29, 2009. This copy may not be in its final form and may be updated.

(BEGIN VIDEO CLIP)

FRANK RICCI, NEW HAVEN, CONNECTICUT FIREFIGHTER: I think that this is just proof positive that people should be treated as individuals and not statistics.

This ruling is a vindication for all New Haven 20, and the rest of the country.

SEN. JEFFREY SESSIONS, (R) ALABAMA: Well, we felt that the Judge Sotomayor's opinion was not sound, and all nine members of the Supreme Court reversed that finding that they made, she and her panel.

It was quite a rebuke, actually, to her and the opinion that was rendered.

(END VIDEO CLIP)

BRET BAIER, "SPECIAL REPORT" HOST: Well, a 5-4 ruling today did reverse the opinion of that panel, the second circuit, in which Judge Sotomayor was a member. And the 5-4 opinion ruled in favor of the New Haven 20. You saw there, Frank Ricci. He's the named firefighter. These are a group of 19 white and one Hispanic firefighters from New Haven, Connecticut.

Here is what Senator Leahy, the chairman of the Judiciary Committee says about this ruling: "It would be wrong to use today's decision to criticize Judge Sotomayor who sat on the panel of the second circuit that heard this case but did not write it's unanimous opinion.

Although the judges on her panel were sympathetic to the plaintiff's claims, the Supreme Court had not spoken on this issue. The judges were bound by the precedent of the second circuit. Had Judge Sotomayor's panel ruled in favor of the firefighters' claim, their decision would have been judicial activism, contrary to clearly settled and long-standing second circuit precedent."

So what about all this legalese and what it means for the president's nominee? Some observations from Bill Kristol, editor of the "Weekly Standard," Mara Liasson, national political correspondent for National Public Radio, and syndicated columnist Charles Krauthammer.

Your thoughts, Bill?

BILL KRISTOL, EDITOR, "THE WEEKLY STANDARD": My thought is everyone should read Justice Alito's concurring opinion, which is a really fantastic concurrence, I think. And he and Justice Roberts will be two of President Bush's really impressive legacies.

I think you can't read that opinion and think that this was a case that was appropriately dismissed on summary judgment by the district court, and then that dismissal was upheld summarily by Judge Sotomayor sitting on the appellate court.

Maybe there is an argument, Justice Ginsburg tries to make it rather weakly, that on the law you can make an argument that New Haven can toss out this test even though they didn't do it because they really thought for the reasons, and discriminated against the white firefighters and, indeed, the Hispanic firefighter who took time off from his job and studied hard to try and do well and did well.

Maybe you can't make that legal argument. You can't make the argument that there was not enough of a legal case there that the case should have never been heard.

This was dismissed on summary judgment by the district court, and the appellate court with Sotomayor just said it was not even worth writing an opinion about.

Then five Supreme Court justices say not only is it worth writing an opinion about, but, in fact, it violated Title 7 of the Civil Rights Act.

BAIER: Mara, we should point out by this ruling, now all those firefighters who didn't get promoted because of the test, have all the back pay and the promotions going back all that time. You can see the picture of all the firefighters there on the steps of the Supreme Court. Your thoughts about how it impacts the confirmation hearings going forward?

MARA LIASSON, NATIONAL POLITICAL CORRESPONDENT, NATIONAL PUBLIC RADIO: I think it impacts the confirmation hearings very little. I think that it was a 5-4 decision. It wasn't any bigger majority than that.

The person that she is replacing was in the minority. In other words, if it was in the majority, you could argue that her addition to the Supreme Court would actually change the outcome of this case.

BAIER: You're talking about David Souter.

LIASSON: David Souter.

And also, the Supreme Court did not rule on the constitutionality of this or say that she should have. That was one of the big criticisms of her court, the fact that it is so summarily rejected it and upheld the lower court ruling, the district court ruling.

The Supreme Court did not get into the constitutional issues, although, of course, now that it has handed this down, it will have constitutional implications.

So I would say it was not really a rebuke to her. I think it was an expected ruling. Nobody was predicting that her decision would be left to stand by the Supreme Court.

I think it is an important decision, but I don't think it is something that could derail her confirmation.

BAIER: And 5-4 takes a little sting out of this whole thing, Charles?

CHARLES KRAUTHAMMER, SYNDICATED COLUMNIST: A lot of sting. In fact, I think it will have no effect on her ending up on the court.

She can look to the four who supported her position in essence, and also the fact that Ruth Bader Ginsburg read her descent from the bench, which is a dramatic event, which was a way of emphasizing how legitimate and strong — how legitimate she felt that the position that Sotomayor had upheld was. So I think it really helps her, and this is negligible in terms of her nomination and ending up on the court.

However, I think it will have a large effect on affirmative action. What it's going to do is it imposes strict rules and raises the bar considerably for an employer or the government to racially discriminate openly against a group simply to undo the results of a racially skewed exam.

It will not do, as New Haven had hoped, to simply claim that there might have existed a test out there in the ether that could have had a less severe racial impact. That won't stand up anymore.

And I think it's important, because if you look at the incredible care with the people who put that test together tried to make it racially balanced.

For example, there were oral exams, nine panels, three judges each. Each of the panels had exactly one white, one Hispanic and one African-American. It shows you how remarkably race conscious, ironically, that the Civil Rights Act has made us.

This decision, I think, will go at least some way to undoing that hyper race consciousness, which I think is ultimately quite destructive in the country.

BAIER: Bill, does this decision make it tougher for Republicans to push hard on this issue of looking through a prism of race when deciding cases?

KRISTOL: No, I really disagree with my colleagues on this. Even Justice Ginsburg's dissent suggests that this is a case that has to be heard. That it couldn't be just summarily tossed out.

She actually goes through quite a long factual argument about why the evidence might, might support what New Haven did. And that's what Justice Alito in this concurrence really takes on her dissent.

But the idea that this was appropriate just to do away with — this is Title 7 of the Civil Rights Act. It's a pretty important piece of legislation. She refused to even grapple with it, and she refused to do it because she knew it was politically sensitive.

I bet she knew that the district court opinion was bad, and she didn't want to get into the position of either annoying her friends or enemies by writing an opinion, so she tried to duck the whole thing, which would have succeeded if her colleagues on the second circuit hadn't insisted that it be reheard.

So I think this could hurt her if Republican senators and maybe some Democrats actually sit and read the opinion.

KRAUTHAMMER: All of that is true, but you're hardly going to seek a nomination on a procedural objection.

On the substance, she had almost half of the court, and she had, as I said, a dissent read from the bench. That will be enough. It will get her through.

BAIER: Secretary of State Clinton and President Obama send different messages regarding the Honduras coup. The panel speculates why, after the break.

(COMMERCIAL BREAK)

BARACK OBAMA, (D) PRESIDENT OF THE UNITED STATES OF AMERICA: All of us have grave concerns about what is taking place there. President Zelaya was democratically elected. He had not yet completed his term.

We believe that the coup was not legal, and that President Zelaya remains the president of Honduras.

(END VIDEO CLIP)

BAIER: The coup happened over the weekend in Honduras after the democratically elected president was rousted from his bed, thrown onboard a plane to Costa Rica, and the military essentially took over. The president currently, Manuel Zelaya, was kicked out.

And you just heard the president of the United States, President Obama saying it wasn't illegal too. A couple hours earlier, his Secretary of State said they hadn't made a legal determination, and they're withholding judgment.

What about all of this, the coup, what it means for the U.S., and the response. We're back with the panel — Charles?

KRAUTHAMMER: Well, the president has a knack for getting all of these big decisions wrong. Two weeks ago he refuses to meddle in a country where peaceful demonstrators are getting shot by a theocratic dictatorship. He doesn't want to choose sides.

And now he's eager to president on behalf of the president in Honduras who is a Chavez wannabe, who is strong-arming his way to a referendum that has been declared illegal by his Supreme Court as a way to have a referendum to establish a constituent assembly which will establish a new constitution, which will be a Chavez-like dictatorship.

That's what everybody understands in Honduras, and that's why the Supreme Court had ruled the referendum illegal. Only Congress has a right to call it, not the president. Congress had denounced it.

The Supreme Court had told the military not to assist in the referendum because it's illegal. So Zelaya fires the chief of staff of the army. The Supreme Court orders him reinstated, he fires him again.

This guy is acting extra-constitutionally. Yes, he was elected, but Hitler was as well, and Chavez also was. It's easy to dismantle a democracy if you a president if you are intent on doing it, and he is intent on doing it.

So our decision ought to be, yes, a coup isn't a nice thing, but it's preferable to having Zelaya dismantle the democracy. And we should insist on the elections of a president as scheduled in November, so it is a temporary situation.

Look, a rule of thumb here is whenever you find yourself on the side of Hugo Chavez, Daniel Ortega, and the Castro twins, you ought to reexamine your assumptions.

BAIER: We should point out, Mara, that Hugo Chavez said in a speech today, he referenced U.S. interference in Honduras. And U.S. officials are saying that they knew this coup was in the works and they were working behind the scenes.

LIASSON: I actually have a different take. I think that the president's words — it is almost like he doth protests too much. I think they're perfectly happy of the outcome of what happened. They would rather not have a Chavez-like president, another one, in Central America.

Now, I think it's the correct public diplomacy in politics to say that, of course, we're for the democratically elected president, and we don't like coups in Latin America. But when all the dust settles, they will be happy to work with the new guy.

They are not working to get Zelaya back into power. That's not what the U.S. is doing here. You are kind of extrapolating that position from his statements.

I think in terms of the split also in terms of the State Department and the White House with Secretary of State Clinton being less forward, not really willing to say this was illegal, I think that, in the end, this is the outcome that the United States would have preferred. This is not the method that they want to publicly condone.

BAIER: We should point out the new guy is the congressional leader Roberto Micheletti.

LIASSON: Constitutionally —

BAIER: He was next in line.

LIASSON: He was next in line constitutionally. The military didn't install him. This is what was supposed to have happened.

BAIER: He was sworn in as president.

KRISTOL: Yes, he is equivalent of the speaker of the house. He has become president. He has pledged fair and free presidential elections in November with international observers.

That seems like a pretty adequate outcome for a president who was trying to go around the constitution and clearly was trying to stage his own semi — his own coup, as it were, sitting as president.

So I don't know quite why our president is so upset about what seems to be a good outcome.

LIASSON: He's —

KRISTOL: I disagree. He is playing a very dangerous hand here. Chavez says he is going to intervene and invade. And we are signing onto resolutions —

BAIER: Invade Honduras?

KRISTOL: Yes. And it's not out of the question. He can do it. I mean, the OAS says this is illegitimate, the U.S. says this is illegitimate. Obama makes it sound like we will not recognize the new government. He's, of course, been much tougher on this than on Iran, as several people have pointed out.

But, again, I've come back to the fact this new government has said free and fair elections in November. That is not really your classic military coup, where you take over for 15 years, you're sticking people in jail and you're dissolving congress.

And it does is seem to me that it is unbelievable that on the same day it is happening, instead of reserving judgment, President Obama is out there denouncing this one, whereas in Iran, it is who knows if those elections were fair out there? There weren't international observers there.

LIASSON: He corrected that statement.

BAIER: Charles, how does this end up?

KRAUTHAMMER: It is not harmless, America supporting the president supporting in this, because it puts us on the side of the U.N., the OAS, and Chavez, pressure on the government, isolation on the existing government of Honduras could bring it down and a restoration of this guy and a Chavez dictatorship.

BAIER: Manuel Zelaya, the president who was ousted, will be at the United Nations tomorrow, and we will have coverage of that.

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