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Special Report

'Special Report' Panel on Republicans' Tough Questioning of Sotomayor

This is a rush transcript of "Special Report With Bret Baier" from July 14, 2009. This copy may not be in its final form and may be updated.

(BEGIN VIDEO CLIP)

JUDGE SONIA SOTOMAYOR, SUPREME COURT NOMINEE: The words I chose, taking the rh etorical flourish, was a bad idea. I do understand that there are some who have read this differently, and I understand what they might have concerns about.

But I have repeated more than once and I will repeat throughout, if you look at my history on the bench, you will know that I do not believe that any ethnic, gender, or race group has an advantage in sound judging.

(END VIDEO CLIP)

BAIER: Judge Sonia Sotomayor at her confirmation hearing today, that was talking about the now infamous line, 32 words that, 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 life."

So what about the two Judge Sotomayors we saw today and the one from speeches and writings? Let's bring in our panel, Steve Hayes, senior writer for The Weekly Standard, Juan Williams, news analyst for National Public Radio, and syndicated columnist Charles Krauthammer.

Charles, first of all, your overview, your look — we heard from these two guys today — of how you thought the hearings went.

CHARLES KRAUTHAMMER, SYNDICATED COLUMNIST: Well, she had a tough brief. She had to defend the indefensible. That statement is indefensible. She knows it, and that's why she contradicts it and pretends that anybody who reads her words as they were originally said is misunderstanding her. They are understanding her perfectly well.

What I found disappointing is how the Republicans backed off. I thought Sessions had a pretty good attack —

BAIER: Senator Jeff Sessions from Alabama, the ranking Republican.

KRAUTHAMMER: He's the ranking Republican, and I thought he was the most on message.

Lindsay Graham, who was one of the leading Republicans, I thought, was disappointing. He had her on the ropes a couple of times, particularly on this issue, and also on issues of indefinite detentions of combatants in a war, also on the funding of abortion.

But it looked as if he had a checklist he had to fill out. And as she stumbled, he moved on, and he let her off the hook.

But her main issue is that she is a believer in identity politics. And to say as she did in that clip "judge me on my record" is, again, disingenuous.

As a lower court judge, her record of actions are constrained by precedent and the law. Once she is on the Supreme Court, she is unconstrained, un-tethered, and she will act on her beliefs. And you know her beliefs from what she said.

And it wasn't only a flourish said one. She said it about six times. And she had it published in a law journal article. That's a statement of who she is, and that's who she is going to be on the bench.

BAIER: Juan, you said she had a tough day.

JUAN WILLIAMS, NEWS ANALYST, NATIONAL PUBLIC RADIO: I think she had a pretty tough day.

I think, if you think about it, she said that much of her statement was a bad idea. She intended it as a rhetorical flourish, she intended it to inspire minority students, and that much of it fell flat. And it has came back to bite her big time in these hearings.

I think that the whole notion of identity politics has been — she has come to personify it, and that is not to her advantage in terms of public perception.

So I think that it was a rough day, and my thought was Republicans not going to go hard at Sonia Sotomayor because it looks like she has the votes to win.

But I thought today they went at her pretty hard. Now, I know some of my more conservative colleagues will say we expected them to even go harder and hit her harder, but from my perspective, she came out of this thing pretty much roughed up. And she has got a lot of cuts on her after the first round.

BAIER: Steve?

STEVE HAYES, SENIOR WRITER, THE WEEKLY STANDARD: I think Juan was talking about me.

(LAUGHTER)

I think she survived. I think she seemed competent, certainly not brilliant. She basically answered the questions. She knew — she sounded like she knew what she was talking about.

But Charles is exactly right. She can't defend the comments she has made in the past, comments that were not off the cuff remarks she gave in an interview, but comments that appeared in her prepared remarks, in speeches.

People have called it her stump speech. This is what she said again and again and again. You can't make that disappear.

Jeff Sessions was very effective lining up questions about that, lining up questions about her identity politics, and many other areas where she — and what she said yesterday in her opening statement contradicted what she said when she was free to speak over the years.

BAIER: Democratic senators, Charles, obviously tried to rehabilitate her by saying, pointing back to her rulings, saying that there isn't a showcase of these speeches in what she has written on the bench.

We will likely see that again tomorrow in this back and forth between Republicans and Democrats.

KRAUTHAMMER: It is her only refuge. But, of course, it doesn't hold up, because, again, when you're on the court, you are on the circuit, or you're a district court judge, you have to act within constraints. You cannot be who you want to be, especially if you have aspirations as she always had, to be on the Supreme Court.

But once you're on the Supreme Court, you make the law. Look, abortion law was one thing the day before Roe. It was something else the morning after Roe.

On affirmative action, it was something before Ricci and something the morning after Ricci. She is going to be a person who is going to determine what the law is, and her defense I have fidelity to the law is disingenuous.

BAIER: So if you were —

KRAUTHAMMER: There is no controlling law if you are on the Supreme Court.

BAIER: So if you are a Republican senator in the line left to question, what do you do tomorrow? Let's say Senator Cornyn, who is next up in the line?

KRAUTHAMMER: I would say to her, you said that a wise Latina is wiser. Today you would affirm that a wise Latina is not wiser. Who are you trying to kid?

BAIER: That's it?

KRAUTHAMMER: I would just try to express, not outrage, but extreme skepticism at her change of tone and substance, because, obviously, it's disingenuous.

BAIER: Today we said the short questions worked the best.

WILLIAMS: The short questions are good, absolutely. It's like a prosecutor in court. Let the person who has got center stage hurt themselves.

But my thinking, Charles, is 17 years experience, a tremendous record of experience, and we know what kind of judge she has been. She has been in the mainstream.

And not just — you know, Charles Schumer, the senator from New York, her home state, tried to walk that through today and make the case that if you look at her rulings, they have been in the mainstream.

It's just that the overwhelming wave, I thought, came from the Republicans and was about identity politics and double standards that if a white male had made that statement, the white male's career would have been over.

BAIER: And so far, Steve, nothing approaching the Lindsey Graham meltdown?

HAYES: Certainly no meltdown.

If I were a Republican, I would focus on the fact that she said she disagrees with President Obama's empathy standard for judges.

That is something that I think Republicans going forward, looking forward to future Supreme Court appointments an appellate court appointments, the many that he has in front of him, if they challenge him on that, and challenge Democrats, who yesterday embraced President Obama's standard, I think they have an opening there.

BAIER: You need a very fast calculator to keep up with the mounting federal deficit, which has now topped $1 trillion dollars. The panel reacts to that and how it affects the Obama agenda, next.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

BARACK OBAMA, (D) PRESIDENT OF THE UNITED STATES OF AMERICA: We're going to have to make tough choices necessary to bring down deficits. But don't let folks fool you. The best way to start bringing down deficits is to get control of our health care costs, which is why we need reform.

(END VIDEO CLIP)

BAIER: President Obama in Michigan today as the federal budget deficit has now topped $1 trillion for the first time ever, the Treasury Department saying the June deficit totaled $94.3 billion. That pushes the red ink since the budget started year last October to $1.1 trillion. It is expected to rise to $1.8 trillion by October. And there you see the graphic as it continues.

So what about the deficit and how that plays into the Obama agenda, especially, as you heard the president there, about health care? We're back with the panel — Steve?

HAYES: I actually think $1 trillion dollars is so hard for people to get their head around that it matters when you show a graph like that, where you can show the relative scale of this expansion. But just talking about a trillion dollars, I don't think that affects things as much as people might think inside Washington.

What I do think matters in terms of his domestic policy agenda of the continuing problems he is having with unemployment numbers and the fact that he says unemployment numbers will continue to rise, which basically has him stating the obvious, this is something economists have said for a long time, that's going to be his first problem.

And it's the combination of the unemployment numbers with the, shall we say, ambitious domestic agenda that he is trying to force through Congress right now that gives him more problems, I think, than deficit numbers.

BAIER: Juan, increasingly in polls deficits are a bigger concern for Americans. And for conservative Democrats who have to deal with getting reelected back home in some red states, this is going to be an issue.

WILLIAMS: It's an issue off the bat. The number one concern is jobs. Number two is the deficit. And you can't help with the jobs issue unless you want to go to the second stimulus that people have been batting around for the last several days without increasing the size of this record deficit.

But when it comes to health care in specific, the question then becomes can we afford a major initiative, a costly initiative like health care reform.

And suddenly you give ammunition to people who are trying to stop health care reform from going forward, especially at the rapid pace before the August recess.

And you look at the Senate finance committee, Max Baucus, the Democrat, how is he going to do this? He promised yesterday at the White House, promised the president that he would get something out next week.

It's hard to imagine anything that he can do at this point that will set off alarms and play into Republican concern, even hysteria over this deficit.

BAIER: Charles?

KRAUTHAMMER: I don't think it is hysteria. I think Obama is misreading the mood of the country.

Look, he was a genius last year at reading the mood of the country. That's how he got elected — hope and change and newness and novelty, and all that. And he understood that the American people are willing to spend trillions as a way to undo a recession or to get out of unemployment.

But they are not willing to risk the budget and the future high interest rates and perhaps a collapse of the currency on radical social experiments like health care or cap and trade and energy.

So he got it on stimulus. He got everything he wanted on stimulus. He got almost $1 trillion dollars, and the problem is it has had no results.

So it has hurt him in two ways. A, it has increased the deficit to the point where he would be adding on to it with health care and cap and trade. And secondly, it proves he is not infallible, which, to a lot of Democrats, has come as a shock. And they are now in quiet recovery.

And I think that's really going to hurt him. It's going to make the health care agenda and the energy agenda extremely hard to pass.

BAIER: He says he wants health care to be definite neutral. One of the plans on the House side, House Majority Leader Steny Hoyer says he thinks it can pass the House by the August recess.

One of the plans is to have this surtax on the wealthy. And we're just getting breaking news from Peter Barnes at the FOX Business Network that the surtax on wealthier taxpayers could actually rise in 2013 under the House Democrats' plan, that it could tick up from what even they are talking about now.

When you start talking about surtaxes paying for health care, Steve, does that open up another can of worms?

HAYES: Absolutely it opens up another can of worms. And anybody who is surprised that the taxes that they have initially proposed would increase hasn't been paying attention to Washington for very long.

I mean, this is inevitable. This is what happens. I think it is more likely that the taxes will not only increase when you're talking about percentage of income, whatever percentage the surtax actually will be on the wealthy, but I also think it will creep down.

I think you are going to have to start taxing people who are not in this top 1 percent that the president and House Democrats have looked at.

WILLIAMS: Don't forget the argument that President Obama makes that, in fact, if you get health care costs under control, it will help the American economy. We haven't seen it so far.

And also, let me just say about the stimulus package, I think it is only 10 percent out the door. But I must say the amount of time, the patience with the American people, is wearing thin.

KRAUTHAMMER: The increasing cost of health care blows a hole in the Obama idea of controlling health care as a way to controlling deficits. It does exactly the opposite, his plan does.

BAIER: That's it for the panel

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