Transcript: Rating the Roberts Hearings

This is a partial transcript from "Your World with Neil Cavuto," September 14, 2005, that was edited for clarity.

NEIL CAVUTO, HOST: Are the Judge John Roberts hearings a waste of time or are they getting too politically nasty?

Let's ask power attorney David Boies. And, in Washington, I'm joined by Former U.S. Attorney General Dick Thornburgh.

Welcome to both of you.

DAVID BOIES, AUTHOR, "COURTING JUSTICE": Thank you.

RICHARD THORNBURGH, FORMER ATTORNEY GENERAL: Hi, Neil.

CAVUTO: David, what do you think, first of all, of the tenor of the hearings thus far? What we should have expected?

BOIES: You think so. I think the tenor has actually been quite good.

I think that both the chairman, Chairman Specter, and the ranking Democrat, Senator Leahy, went out of their way in their hoping statements to try to set the respectful, but nevertheless inquiring tone to the inquiry. And I think that there has been an attempt to move this away from some of the rancor and the partisanship that's characterized so much of the country and so much of the judicial questioning.

CAVUTO: General, no one expects Roberts, a fairly crafty lawyer in his own right, to necessarily spill the beans on either issues as emotional as Roe v. Wade or how are you going to make business decisions. So, how do we play this game, or is it just a game?

THORNBURGH: No, I don't think it's a game. It's a necessary part of the process whereby we put judges on the bench, and, in particular, select a chief justice.

My own sense is that the hearings have confirmed the president's wisdom in nominating John Roberts to be the chief justice of the Supreme Court. And, in a way, it's kind of turned into a seminar on Supreme Court jurisprudence. Now, that's a pretty murky subject from time to time. But I think anybody who has followed the hearings day in and day out comes away with a much greater appreciation of how subtle and nuanced the process, the Supreme Court appellate process, is.

CAVUTO: I wouldn't even repeat that term, because I don't think I could pronounce it.

(LAUGHTER)

CAVUTO: But, David, let me ask you about a separate issue that came up today that might come up in these confirmation hearings, in this San Francisco court effectively saying that, you can't do the "under God" thing in the pledge thing. What do you make of that?

BOIES: The Constitution has a provision against establishment of religion. And what the judge is ruling is that the Pledge of Allegiance, with those words "under God," somehow constitutes an establishment of religion. I don't agree with that. I think that's contrary to the entire history of this country and the way that we have used God, in terms of invoking his presence, even on our coins, on our dollar bills, on our court buildings, in Congress.

CAVUTO: But this is the second court that has effectively said that.

BOIES: Yes, and there are arguments. I don't mean to say that there are no arguments at all. I just don't think that those arguments stand up under analysis.

That's not what the framers meant when they were talking about establishment of religion. It's not even clear to me that they were saying that the state has to be neutral about whether or not there is a God. It has to be neutral as to what religion. It can't establish a particular religion. But I think the idea of saying that you can't have in the Pledge of Allegiance reference to God is just wrong.

Now, I'm old enough to remember when it wasn't in there. I learned the Pledge of Allegiance when it did not have that reference. I think adding that reference is not an establishment of religion.

CAVUTO: But, General Thornburgh, I'm wondering now, with the confirmation hearings still going on, whether this does become an issue, whether one senator, be it Democrat or Republican, just ask Roberts outright, do you believe this language should be in the pledge. And how would he treat that, answer that, or even deal with that?

THORNBURGH: Well, he certainly won't respond to that, because this is a case that definitely will go to the Supreme Court. It's been there once before and was not decided because of standing problems.

But I think David Boies has hit the nail right on the head. This is a foolish decision. The effect of it is really to establish atheism as a state religion in the United States, by its reading the words "under God" out of our Pledge of Allegiance.

CAVUTO: Guys, thank you both very much. We appreciate it.

BOIES: Thank you.

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