Judge Robert Bork on the Upcoming Bench Battle

This is a partial transcript from "Hannity & Colmes," July 6, 2005, that has been edited for clarity.

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SEAN HANNITY, CO-HOST: The last time I checked, the Constitution — you know, that's the one that allows the president to nominate candidates to the Supreme Court — but that doesn't stop Democratic Minority Leader Harry Reid (search) from adding his two cents today. He announced that Attorney General Alberto Gonzales (search) is qualified to sit on the Supreme Court, but added, "I don't know if he'd have an easy time through the Senate confirmation process."

So is the opinion of the minority leader going to influence the president's decision? Joining us now, former nominee to the court himself, Judge Robert Bork.

Judge Bork, always good to see you, my friend.


HANNITY: Already Ted Kennedy, Joe Biden, Dianne Feinstein, Barbara Boxer, and Pat Leahy have uttered the filibuster word. And Chuck Schumer says, "We're going to war over the Supreme Court." Do they really want consensus, or would they prefer a liberal on the court?

BORK: Well, if they don't go to all-out war, it will mean the president has nominated the wrong person.

HANNITY: So you anticipate a full war?

BORK: Oh, yes. Oh, yes.

HANNITY: Is it one the president will win, or will...

BORK: I think he'll win it if he conducts a public campaign. If he organizes groups, if he gets coordinated groups to support him, and if he himself goes out and conducts a campaign, he'll win it. However...

HANNITY: The president — go ahead.

BORK: I was going to say, however, if he nominates somebody who is kind of squishy and turns out to be what so many Republican appointees to the court have turned out to be, he's going to lose a lot of support in the conservative ranks.

HANNITY: Yes. One of the questions that are coming up, and Chuck Schumer keeps bringing this up, while he's talking about his partisan war, he wants specific answers to specific questions on abortion, and gay rights, and gay marriage, and other issues, and the president says he's not going to use litmus tests like abortion and others. Wouldn't this be a precedent-setting change?

BORK: Well, no. Which, you mean Schumer?

HANNITY: Schumer.

BORK: Oh, no, they do that all the time. If they ask you to, in effect, make campaign promises that you will uphold Roe against Wade, that you will uphold Lawrence against Texas, the constitutional right for homosexual sodomy, and so forth.

HANNITY: But to give an answer? But a candidate shouldn't give an answer?

BORK: Well, it's hard, because they may not confirm him if he doesn't give an answer. On the other hand, if he does give an answer, he has, in effect, made campaign promises. And the senators are controlling what the Constitution means rather than the judge.

HANNITY: Well, it is a lifetime appointment. I guess they have every right to do what they want.

One of the things that's amazing to me. You had a hard time, obviously. Clarence Thomas has a hard time. When we look at, for attorney general, Ashcroft, Senator Ashcroft, or Judge Gonzales, they have a hard time.

But Ruth Bader Ginsburg, the former general counsel of the ACLU, has an easy time. Stephen Breyer, an easy time. Why is there this double standard with conservatives and liberals in this process? I don't understand that part.

BORK: Well, it's not so much a double standard. I think it's a failure of will by conservative groups.

There was plenty of evidence that Ruth Ginsburg could have been questioned about and she wasn't. And Breyer could have been questioned more closely than he was. Republicans seem to give a pass to liberal candidates when a president is liberal. Democrats do not give a pass to a conservative candidate when the president is conservative.

ALAN COLMES, CO-HOST: Hey, Judge, it's Alan Colmes. Good to have you back on the show. Isn't it what happened was — and Orrin Hatch mentioned in his autobiography — that Bill Clinton and he spoke. And he said to Bill Clinton not to nominate Bruce Babbitt, Bill Clinton's — but he did say to Bill Clinton — Breyer, Ginsburg would have an easy time. And Bill Clinton, in counsel with Orrin Hatch (search), did just that, so there was consensus and there was a dialogue about it?

BORK: Well, there was consensus. And we now have two very liberal judges who are activists, who are making up the Constitution, who are reaching results that have no plausible relationship to the actual Constitution.

So you can say it's wonderful, you have consensus. On the other hand, it is very bad for the Constitution.

COLMES: I wonder how you define activist, because, according to one study that was done, the justice who more than any other justice overturned or voted to overturn law passed by the Congress is Clarence Thomas. So I guess one person's activist is another person's constitutionalist.

BORK: No, no. No, no. No, not at all. An activist is a person who reaches results that have no plausible relationship to the Constitution. Now, it doesn't — you may be overturning a lot of statutes or you may be overturning very few statutes. The question is, have you made an argument that shows that what you're doing comes out of the Constitution? If you don't make that argument, if you don't make that showing, you're an activist.

COLMES: Is there a time when you would have been confirmed in our history, or in recent modern times, when you would have made it to the Supreme Court?

BORK: Oh, yes.


BORK: Oh, I think if the Republicans had controlled the Senate, I would have made it, or if the White House had been prepared for the kind of onslaught that occurred and had been ready to fight back, it probably would have gone all right, too. But it occurred at a very unfortunate time. The Republicans did not control the Senate, and the White House was unprepared to do battle.

COLMES: And Ted Kennedy said some very strongest statements about you, talked about what kind of America it would be. Do you bear any animosity or ill will toward him because of the comments he made about you at that time?

BORK: No, I didn't think much of him before he made any comments about me...


BORK: ... so it didn't really affect me in any way. Teddy Kennedy has become the Joe McCarthy of the extreme left-wing.

COLMES: Joe McCarthy?

HANNITY: He really — well, his statements about you, Judge, were outrageous.

COLMES: Joe McCarthy?

HANNITY: There's no doubt about it. And you can start questioning him and lecturing him about his past, and we know some of his instances. Thank you, Judge. All the best. We appreciate your coming on the program.

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