Why is Sen. Harry Reid Attacking Justice Clarence Thomas?

This is a partial transcript from "Hannity & Colmes," Dec. 6, 2004, that has been edited for clarity.

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ALAN COLMES, CO-HOST: Incoming Senator Minority Leader Harry Reid is already making waves... Yesterday Reid was asked if he'd ever accept Clarence Thomas as chief justice of the Supreme Court? Here's what he said.

(BEGIN VIDEO CLIP)

SEN. HARRY REID (D-NV), MINORITY LEADER: I think that he has been an embarrassment to the Supreme Court. I think that his opinions are poorly written. I don't — I just don't think that he's done a good job as a Supreme Court justice.

(END VIDEO CLIP)

COLMES: Was he being too harsh and does this foreshadow the battle to come next year?

Joining us from Salt Lake City, outgoing chairman of the judiciary committee, Utah Republican Senator Orrin Hatch.

Senator Hatch, that's a lovely outfit you have there.

SEN. ORRIN HATCH (R), UTAH: Well, thank you, Alan. I hope I dressed up accordingly.

COLMES: It's very nice. You look great.

HATCH: I don't want to embarrass your show.

COLMES: Not at all. You couldn't possibly do that.

Look, what's wrong with saying that he doesn't think that Clarence Thomas should be chief justice, doesn't think he's as good as justice as Scalia. Certainly he's not been ideological. They agree on a lot, Thomas and Scalia, so he's not coming from an ideological place when he says that.

HATCH: Well, Harry Reid is a very close friend of mine. And frankly, he's a very soft spoken man and I think has handled himself very well in most matters since he's been elected or at least is purported to be elected minority leader of the Senate.

But, you know, I just hope Harry wasn't just saying, well, I disagree with his opinions; therefore, he's not worthy of being on the court.

Frankly, if you rate Thomas's opinions, they are some of the most articulate, responsible, substantive, interesting opinions on the court. I can name a number of them that I think would — that both of you would agree with. You may not agree with the opinions but you would agree that they were substantively very, very specialty oriented.

HANNITY: Isn't one of the problems about Thomas is that he had 35 cases where he filed dissents or concurrences by himself, totally away from what everybody else was saying.

And that apparently, there is an autobiography or a biography, I should say, of Clarence Thomas where Scalia quotes that Thomas doesn't believe in stare decisis, which is key to being a justice.

Well, I think that's an oversimplification. Stare decisis isn't an absolute. What that means, it's the law of the prior precedent. I mean, you generally abide by the law of prior precedent.

But that doesn't mean that it's absolute. You know, we had to overturn some of the cases in order to reach civil rights accord in this country, and they were properly overturned.

I think Clarence Thomas very much hold — upholds the stare decisis it but he may not feel that it's always appropriate, especially when there are bad cases.

COLMES: Scalia is quoting as saying he doesn't believe in that.

But let me ask you this. I always hear the complaint that Democrats are not as good as Republicans in working in a bipartisan fashion.

We pointed out yesterday 207 judges put up by President Bush. Only 10 have there been — have there been problems. Isn't that a pretty good record?

HATCH: The president — President Bush has the lowest record of getting circuit court of appeals judges through in history because of those filibusters. For the first time in history, Democrats have done this very dangerous thing of filibustering.

Now, there were four judges during the Clinton years that had votes against them but every one of them are sitting on courts today, because they did get a vote up and down.

It's one thing to use a cloture for time management purposes. It's another to stop the United States Senate from even voting on the — on the judges. And it's a dangerous thing they are doing, and frankly, I think the Republicans are going to have to stop it any way they can.

HANNITY: Would you support what the liberals are calling the nuclear option, that is, that you take away their ability to filibuster?

HATCH: Well, I was one of the early ones recommending the constitutional option, is what I call it, because never in the history of this country have we had filibusters or simply majority vote requirements for judges, especially court of appeal judges.

HANNITY: So we can expect that will happen, then? Because you know as soon as the president appoints a conservative justice or somebody that has a strict constructionist point of view, that they're going to try and do what they've been doing and so you will invoke this option?

HATCH: Well, never before in the history of this country has the Supreme Court justice been delayed or stopped by use of the filibuster. Some of them point to — to Fordyce, but he was going to lose up and down. I mean, there was no filibuster there.

They wanted the up and down vote. Johnson withdrew him because he knew he didn't have the votes up and down, even — even an up and down vote, let alone a majority vote.

HANNITY: I think in the case of Clarence Thomas, his logic is impeccable, his writing has been suburb.

HATCH: He has been.

HANNITY: I would like Harry Reid to back up this. What writings specifically is he talking about that he's read? Because this is a personal attack against justice Thomas.

HATCH: Well...

HANNITY: I think he has been one of the best justices we've had. And this is a preemptive strike, because there's a likelihood that the president is going to appoint him chief justice.

HATCH: Well, there's a lot of mythology about Justice Thomas, which is conjured up by many Democrats. And I — I just hope Harry hadn't bought into that, because usually Harry is fair. Usually he will treat people with dignity.

HANNITY: It sounds like you have Tom Daschle Jr. taking over here, Senator Hatch.

HATCH: Well, he's got a rough bunch to manage. There's no question about it.

But you just — you just look at some of Thomas's cases, Term Limits vs. Thornton (ph). Thomas ruled that state term limits for Congress people don't fly.

Or take the MacIntyre case. He basically said something that I think a lot of liberals would agree to, that anonymous campaigning is all right because the Federalist Papers were written by anonymous people.

So take the Fordyce case, where he upheld civil rights and did so in a very substantive, very clear, very articulate opinion. Or you could go, I could go through a whole raft of cases.

So I don't think Harry has really considered it very well and I think he may have bought into some of the — what I call bullcorns spread around by those who just nail Thomas and never will find anything good about him.

HANNITY: it's not very promising in terms of — they speak game of bipartisan but already he's on the attack, the way I look at it.

Let me ask you this. He also is invoking your name in terms of, did Bill Clinton — or he's quoting you had written in yourself autobiography that Bill Clinton sought to consult with you before choosing nominees, in the case of Ruth Bader Ginsberg and Steven Breyer, and that they picked them over more ideological choices, considering how left they have turned out to be?

HATCH: Well, he certainly consulted with me, certainly called me and said, "Look, I'm thinking of such and such and such and such."

I think President Bush will do the same to hopefully Harry Reid and Senator Leahy. But that doesn't mean that I picked them. On the other hand, I did...

HANNITY: Yes, but did you support —

HATCH: Oh, yes, I did — oh, yes, I did recommend. Well, he had about 10 of them there, and frankly, most of them were very, very tough ideologues.

And I was very honest with him. The ones that he wanted, that he had a preference for, I told him, I said, they might make it but there might be blood on the floor. You don't want that type of a battle. And I did recommend Breyer and Ginsberg as possible alternatives.

COLMES: I'm glad he consulted. Hope President Bush does the same.

HATCH: They did, and I think Bush will do.

COLMES: Thank much very, Senator Hatch, for being with us.

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