Sen. Hatch Lays Out Sotomayor Concerns

This is a rush transcript from "Hannity," May 26, 2009. This copy may not be in its final form and may be updated.

SEAN HANNITY, HOST: This president who promised to unite the country during the campaign has selected the most divisive nominee possible for the United States Supreme Court. And that is our headline this Tuesday night, "The Arrogance of Hope."

Well, that's what it has to be to nominee such a radical. Arrogance coming from a party that has an almost filibuster-proof majority, because a nominee like Sonia Sotomayor isn't going to bring anybody together.

Now as we first reported on this program just a few weeks ago, Judge Sotomayor said this about where policy comes from.

(BEGIN VIDEO CLIP)

SUPREME COURT JUDGE NOMINEE SONIA SOTOMAYOR: All of the legal defense funds out there, they're looking for people with Court of Appeals experience because it is — Court of Appeals is where policy is made. And I know, and I know this is on tape and I should never say that because we don't make law, I know. OK. I know. I'm not promoting it, I'm not advocating it, you know. OK.

(END VIDEO CLIP)

HANNITY: Now that is a definition of judicial activism or take her comments in Berkeley in 2001 when she said, quote, "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 life."

Well, apparently President Obama has found the empathy that he was looking for.

Then, of course, there is Judge Sotomayor's ruling in the now-famous New Haven firefighters' case where she defended what amounts to reverse discrimination. Now we first reported on that story almost two months ago and we're going to show you that story in just a few minutes.

But can it be anything other than arrogance on behalf of this administration to assume that a nominee like this would be embraced by both parties, let alone most of America?

And joining me tonight with more on today's announcement is Utah Republican Senator Orrin Hatch.

• Video: Watch Sean's interview

Senator, always good to see you. Welcome back to the program.

SENATOR ORRIN HATCH, R-UTAH: Nice to be with you, Sean.

HANNITY: The Court of Appeals is where policy is made? I guess you're no longer needed, Senator. I thought policy — I thought there were equal branches of government but perhaps I'm way off base.

HATCH: That was certainly unfortunate language and she shouldn't be making those kind of comments. No judge should make those kind of comments because judges — you know, in this case we're talking about the highest court in the land, the court of last resort, the court where the judge's personal predilections or policy preferences should not be — should not necessarily be followed.

In other words a judge ought to be doing what's right within the law. They're not super-legislators from the bench. They shouldn't — you usurp the powers of the other two branches of government, the executive and the legislative branches of government.

Now I don't know how much that particular quote is lifted out of context but all I can say is she shouldn't have made that quote and she shouldn't have joked about it.

HANNITY: Well.

HATCH: Because that's very, very serious stuff for a judge to make. And what a lot of people don't realize is that the Circuit Courts of Appeals in this country decide thousands of cases that will never hit the Supreme Court.

Now they're talking about putting Judge Sotomayor on the Supreme Court and I'm concerned about whether she's going to abide by the rule of law and whether she's going to — what her judicial philosophy is. She said some other things that have me a little bit concerned and, frankly, a great deal concerned.

HANNITY: Well — because the second part of this is the — the court of appeals is where policy is made and then she said oh, I know I'm on tape, I shouldn't say that, we don't make law. Almost mocking the concept, in my mind, of, you know, the separation of power.

HATCH: And that particular conclave got a big kick out of it, too as though this is game that's being played. It is a game that's being played by some of these liberal judges. They actually believe that they can change the laws just by their own whim and the Ninth Circuit Court of Appeals is a perfect poster child for that type of thinking.

Almost every case that comes to the Supreme Court from there is reversed. And good reason, because those judges act — not all of them but the far left ones act very irresponsibly on that court. And she's on the second circuit court of appeals, which is a circuit — a very difficult circuit with a lot of difficult states in it.

We're going to have to — as our responsibility demands, we're going to have to really look over her opinions, her writings, her — even her unwritten opinions, her speeches, various things, because we're talking about one of the most important positions in our country, actually in the world when you stop and think about it.

HANNITY: Well, let me ask you. What do you make of the comment in the speech that I quoted from Berkeley where she said, you know, I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life?

HATCH: Well, if that was her reversed by a white person saying that that white person be drawn right out of the judiciary. I mean it's just not — that's not wise language. That's one of the things that worries me a little bit here.

I come with this wanting to support whoever is the president of the United States and their judicial picks. And I want to be fair. I want to make sure that that person is treated fairly, unlike the way our people were treated over those years. And especially the Supreme Court nominees. You know, when Alito has the overwhelming Democratic vote against him as confident and tremendous as the man is, I thought it was disgraceful.

And I don't want to see that on our side but...

HANNITY: All right. But...

HATCH: ... on the other hand we do have an obligation to look at what the judge stands for and what the judge says and what the judge's judicial philosophy is as well as character, as well as integrity, as well as temperament.

HANNITY: All right. Senator, let me go back to your words. And you said if this were said in reverse by somebody else they'd be running out of town. So you hear her.

(CROSSTALK)

HANNITY: Go ahead.

HATCH: You could hear the Democrats right there. If we had a Supreme Court nominee who was a Republican and the Republican said — and a white male Republican, and he said something like that, my gosh, that would be the end of that nomination right there. Now, I — you know, I think we have to make some allowances here, but I question how much.

HANNITY: Well — and remember when Bill Clinton nominated Lani Guinier for the civil rights division, the nomination went down in large part because of her position on quotas. Then we've got this case, the New Haven firefighters, and for the sake of our audience, we're going to go into great detail in this in a few minutes, where this is a case of clear and obvious reverse discrimination.

And look how many of her decisions also have been thrown out, you know, when she has ruled on them that overturned by the Supreme Court itself. Does that case in particular bother you?

HATCH: Well, to me that case has to be reversed by the Supreme Court and I personally believe they will reverse it because it is reverse discrimination. It was very unfair for a person who fought hard and studied hard and did everything that person could do to be accepted and frankly to be shot down just because the person is not a person of color is not right either.

You know, all I can say is this, we should be fair to people of all ethnic behaviors in our society today. I want to be fair to Judge Sotomayor.

HANNITY: I got that part. But let me — but all these things are warning signs about her judicial philosophy. About the fact that she has far more radical views. You're pointing out that if there was somebody equally conservative, Democrats would be unlikely to vote for it.

Do you see — or do you have any leanings based on your early understanding of her that you have real reservations about her?

HATCH: Well, sure. Let me just give you a couple of illustrations. In a 1996 Law Review article she endorsed, quote, "legal realism," unquote. What in the world does that mean? Then we got to know what that means.

And then she endorsed, quote, "legal systems capable of fluidity and pliancy." Well, you know, she goes on to say our society would be straight-jacketed were not the courts constantly overhauling the laws, she says, and adapting it to the realities of...

HANNITY: Yes.

HATCH: ... ever-changing social, industrial and political conditions. Look, what does that all mean? That certainly looks like an activist person.

HANNITY: Yes. It seems that way to me and it's very obvious, very straightforward almost from the beginning. But let me ask you this. Maybe the focus should be a lot of people.

HATCH: Can I give you another one?

HANNITY: Barack Obama thought.

HATCH: Can I give you?

HANNITY: Yes, you can go ahead.

HATCH: Go ahead, I'm sorry.

HANNITY: You're the guest. You go right ahead. Go ahead.

HATCH: Well, let me just give you another one that's bothering me. In a 2002 speech she questioned whether judges can transcend their personal sympathies and prejudices in deciding cases, quote, "even in most cases," unquote.

And she later stated, quote, "And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society," unquote. Now, she may have a good explanation for that but it's certainly something that causes great concern.

Because look, these Supreme Court justices are justices for everybody. They're not justices for...

HANNITY: Last question.

HATCH: ... one side or for the other.

HANNITY: I agree. And it seems to me — I think Judge Roberts had it right, too, that there is also separation of powers. But Barack Obama said we need somebody who has the empathy to recognize what it's like to be a young teenage mom, the empathy to understand what it's like to be poor, African-American, gay, or disabled.

HATCH: You know what bothers me?

HANNITY: Isn't there supposed to be equal justice under the law?

HATCH: Well, you're darn right. And you know what bothers me about those kind of statements? The questions by one of our eminent Democrats on the committee, Roberts. He said really, are you for the little people or for the big people? You know, are you for the wealthy or the poor?

Well, we're not supposed to be for either, and Roberts handled it beautifully. He said look, if the big people are right I'm going to be for them. If the little people are right, I'm going to be for them. Now that's what a judge should be.

A judge should be unbiased, should not give consideration to a person's wealth or poverty, should do what is right under the law. A judge should not be a super-legislator from the bench. A judge should not be making laws from the bench. Unfortunately...

HANNITY: Senator.

HATCH: ... a lot of course activist judges do exactly that.

HANNITY: I'm running out of time. If you find out that she is that type of judge you're describing will you vote against her?

HATCH: You bet your life I will. And I voted for her for the Circuit Court of Appeals and I would vote against her if she's that type of an activist.

HANNITY: All right. Senator Hatch, thanks for being with us. Appreciate it.

Watch "Hannity" weeknights at 9 p.m. ET!

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.