OTR Interviews

What are the potential ramifications of Ginsburg-Trump spat?

What if a conservative Supreme Court justice had blasted Hillary Clinton? What if Trump is elected president and Ginsburg stays on the bench? One former clerk and the OTR legal panel sound off


This is a rush transcript from "On the Record," July 13, 2016. This copy may not be in its final form and may be updated.


GRETA VAN SUSTEREN, FOX NEWS HOST: OK. I know what some of you are thinking. What if a conservative justice like Justice Clarence Thomas said this about Secretary Hillary Clinton?

Chief counsel and policy director of the Judicial Crisis Network and former law clerk for Justice Clarence Thomas, Carrie Severino goes ON THE RECORD.

Nice to see you, Carrie.


VAN SUSTEREN: What do you think if your former boss had said this about Hillary Clinton?

SEVERINO: Oh my goodness, it would be an explosion. You had people in their stump speeches calling for his resignation. You would have people trying to impeach him. I mean, it would have been just out of control. And I think that really shows as you were saying there is a clear double standard here about what people are expecting.

And while we have thankfully, I think, "The Washington Post" and the "New York Times" admitting this is so far out of bounds of what justices have said, they certainly have not said the kind of things that would have done, I think, if Justice Thomas had been there.

VAN SUSTEREN: See, I think it's frightening. I mean, I know that we all walk into every case as a lawyer with some bias and we try to set the biases aside. But it's never quite so passionate as this. And I think, you know, you clerked in the Supreme Court. I mean, it's sort of frightening to me to think that the Supreme Court has a justice who has -- I guess I should be happy for the transparency. She laid it all out for us. But I think it's frightening.

SEVERINO: Yes. I think, again, we're not totally surprised because unfortunately her tenure as a justice has been marked by using the law to achieve her political goals and ends. And she has been more and more transparent about that in her comments lately.

But I think it's also discouraging because it really shows the court in a bad light. I think it's discouraging also to see that someone like Secretary Clinton, who has not stepped up and said something, criticism of this, because Justice Ginsburg basically decided to work as her surrogate. If she wants to be a surrogate for Hillary Clinton, she should just step down and do that honestly.

VAN SUSTEREN: Well, I think she has hurt Secretary Clinton by this because I think she has given a great fundraising issue to the Republicans as well as, you know, it feeds right into the theory that we know how important the Supreme Court is for this next presidency.

We have also got the situation where you got the attorney general having a meeting with Secretary Clinton's husband on the plane. A lot of people are suspicious about this. I mean, it's almost as though these people are making it very difficult for Secretary Clinton.

SEVERINO: Yes. And it just shows another area where can people really trust her to now appoint someone who is not going to be politicized.

Remember, Ginsburg was a Bill Clinton appointee to the court. And do we want another judge appointed by another Clinton who is going to be the same kind of things, someone who is basically a politician in robes, trying to just use the court to achieve their political ends.

Unfortunately, Ginsburg has done that. And as we all know, it's not just Scalia vacancy that hangs in the balance with the next president. It's going to be possibly Ginsburg's vacancy and others as well.

VAN SUSTEREN: Well, assuming they fill the vacancy of Scalia, and we have nine justices and assuming that Donald Trump becomes president, how in the world can she ever fail to recuse herself on any cases involving something, especially like executive powers?

SEVERINO: Oh, I think it would be very difficult. And certainly if we saw Bush V. Gore type case, she would have to recuse herself, right, during the election season. But she's been so clear and doubled down and tripled down on this issue. I think she has faced a lot of pressure to recuse on almost any presidential issue. So that's going to be a real issue going forward if she stays on the court.

VAN SUSTEREN: Got to give her credit for transparency. I mean, she is not hiding her hate for him.

SEVERINO: Yes. No, although, I got to say, it's kind of like the old saying, it's better to keep your mouth shut and be thought maybe a politicized judge in this case, than to open your mouth and prove it. And she opened her mouth pretty big this time.

VAN SUSTEREN: Well, it's quite shocking.

Anyway, Carrie, thank you for joining us.