'Special Report' Panel on How GOP Will Handle Obama's Supreme Court Nominee

This is a rush transcript of "Special Report With Bret Baier" from May 27, 2009. This copy may not be in its final form and may be updated.

(BEGIN VIDEO CLIP)

PRESIDENT BARACK OBAMA: We seek somebody who is dedicated to the rule of law, who shares my respect for constitutional values on which this nation was founded.

UNIDENTIFIED FEMALE: Here is Judge Sotomayor in her own published words, "Our experiences as women and people of color affect our decisions. I would hope that a wise Latino woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hadn't lived that life.

Equal justice under law or under attack? America deserves better.

(END VIDEO CLIP)

BRET BAIER, "SPECIAL REPORT" HOST: The battle over the ads over the president's nominee, Sonia Sotomayor.

So what now, and what about all of this talk that Republicans really can't oppose this nominee without a major push back from a certain portion of the population?

Let's bring in our panel, Steve Hayes, senior writer of the "Weekly Standard," A.B. Stoddard, associate editor of "The Hill," and syndicated columnist Charles Krauthammer.

Charles, you listen to everyone. You read the papers, and you see that Republicans just can't stand up and oppose Sonia Sotomayor, otherwise they risk the entire Hispanic vote.

CHARLES KRAUTHAMMER, SYNDICATED COLUMNIST: They can and they should. There should be nothing about rumors in liberal magazines about her intellectual capacity, nothing about her temperament, nothing ad hominem. It should be entirely on judicial philosophy.

This ought to be a seminar that ought to focus on two issues — number one, identity politics, as we saw in that clip. She and the president believe that her background is extremely important in her ruling as a judge.

She says that she has the physiological, cultural, experiential tools as a Latina woman to be a superior judge to a white male, which is reflective perfectly of the Democratic Party's identity politics, in which free citizens are herded into groups, arranged into a hierarchy of wisdom, authority, and entitlement.

That's a Democratic idea, and I think it's her idea and ought to be emphasized.

Secondly is the idea that Obama has stressed, and she has, as justice as empathy, as understanding a person's positions, their needs, their wants, their history, and how a ruling will affect their lives.

That is entirely contrary to the western tradition of justice, which is blind as to the person's station in life.

Republicans ought to ask her, how do you believe in that, and swear her oath? If she is on the court, she has to swear an oath which says I will solemnly swear I will administer justice without respect to persons and to equal right to poor and rich. That's what Republicans ought to do, and not attack her in a personal way in any way.

BAIER: A.B.?

A.B. STODDARD, ASSOCIATE EDITOR, "THE HILL": Well, I think the groups, you can leave it to the groups to do the speeches that she has given, saying that white men don't have the right perspective that she does as a Latina woman. You can leave it to the groups to talk about the concept of judicial activism. But I think for Senate Republicans, they have handled this well. They had a good — for a rollout day, Senate Republicans did not offend. They didn't make it personal. They didn't engage in reckless attacks. They asked for time and a fair process.

Going forward, I think there is an opportunity for Senate Republicans to help this conservative cause and help damage the Obama coalition by engaging in a healthy debate about the Ricci case, and just focusing solely on that very compelling case...

BAIER: The firefighters.

STODDARD: ... case involving the New Haven firefighters, and the fact that that promotional test was thrown out and the white firefighters were therefore not promoted after the test was thrown out. If this becomes a debate only about that case, that this is a party talking about fairness, it's going to galvanize the nation. It's going to get repeated media attention.

And it doesn't mean that she won't be confirmed, but I think they have an opportunity to debate this case, and thereby damage the Obama coalition and help the conservative cause.

Leave it to the groups to run all those quotes about her speeches.

BAIER: And, Steve, we expect that ruling on that case, the New Haven firefighter case, from the Supreme Court, really any day before the end of June.

STEVEN HAYES, SENIOR WRITER, "THE WEEKLY STANDARD": Certainly we expect it — certainly before we get knee deep into hearings for her.

I think you AB is absolutely right. I think you will see a focus on the Ricci case. And I think it needs to be an aggressive and tough questioning of her on that case specifically, but a respectful one.

I don't think we should stop at Ricci case, those of us who are going to be asking questions in the media and Republicans in the Senate. You need to ask her questions about her broad racial outlook. I think the post-racial president, as he presented himself to the American people, has, in a sense, chosen someone who has a racialist outlook, and has going back to her days in the '70's at Princeton.

She should explain, I think, and defend those positions. And there are specific questions that senators can put to her — do you agree with Sandra Day O'Connor's case in the Michigan case just a few years ago that we need racial preferences, points given to racial minorities, to even the playing field for another 25 years?

That was a strong claim for Sandra Day O'Connor to make. I would be interested to hear what she says about it.

BAIER: And Charles, it is interesting, when you bring up the race, it was a Clinton appointee, Judge Cabranes, who mentioned in the Ricci case, that Judge Sotomayor was not following essentially constitutional guidelines in taking up the case.

So Republicans could potentially — could they protect themselves by mentioning that the judge who raised the issue was also Hispanic?

KRAUTHAMMER: He was a Clinton appointee and Hispanic, and wrote an opinion representing nine of the justices on the court, really appalled by her summary dismissal of the Ricci case, which she declared without any inquiry into the constitutional issues underlying it as facially race neutral, which obviously it wasn't.

If Ricci had been a non-white, he would now be a lieutenant. He's not.

BAIER: Last word, AB. Barring some major revelation, we still believe this confirmation moves through?

HAYES: Oh, yes. The Senate Republicans are standing down on blocking this. She is going to be moved through.

They just need to gain some ground in this process.

BAIER: The president has another battle on his hands over what to do with terror detainees once he closes the Guantanamo Bay prison. And the Senate Majority Leader really isn't helping.

(BEGIN VIDEO CLIP)

HARRY REID, (D-NV) SENATE MAJORITY LEADER: The United States Senate, Democrats and Republicans, do not want terrorists to be released in the United States. That's very clear.

(END VIDEO CLIP)

BAIER: That's not what he is saying now. The panel on the senator's flip flip-flop when we come back.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

REID: We will never allow terrorists to be released in the United States. I'm speaking for the majority of the Senate.

QUESTION: Would it be all right if they are transferred to an American prison?

REID: Not in the United States.

QUESTION: You think eventually the plan is to put them in maximum security prisons in the United States?

REID: I think some.

Keep in mind, John, there are so many different issues. There is no question that a number of these people there are not guilty of anything. The Uighurs — these are a group of Muslim Chinese who are guilty of nothing.

(END VIDEO CLIP)

BAIER: Well, the Senate majority leader is right. There are a lot of issues to cover here, many of them about what he has said before and what he is saying as of last night to a Las Vegas reporter.

We are back with our panel. Steve, what about this?

HAYES: First the politics, then the substance.

On the politics, you can see that Democrats in total disarray, still, after the president's speech last Thursday, which was meant to sort of wrap this up, and at least contain it.

It's not contained. Harry Reid is off message, or on message and then off message again.

On the substance of it, it is extraordinary to me that he would say that the Uighurs are guilty of nothing. That is an extraordinary comment.

These Uighurs, 13 of the 17 who are currently detained at Guantanamo were trained at Al Qaeda camps, eight of the 17 were trained by a guy named Abdul Haq, who the Obama administration, not the Bush administration, the Obama administration, has designated an Al Qaeda terrorist and an Al Qaeda leader. He is, in fact, on the Al Qaeda Shira council, which is sort of its leadership body.

So you have Harry Reid taking the position that the trainees are not dangerous, and the Obama administration taking the position that the trainer is so dangerous that we need to freeze his assets and otherwise pursue him all over the world. It doesn't make any sense.

BAIER: Maybe this is a loser as an issue.

STODDARD: Yes. Nothing has changed since last week. No one is happy to have these people come to their states and their district. Steve is right that even Harry Reid admitted after the president's speech that there still was not a plan.

What you saw in those comments in Nevada last night, as the president was doing a fundraiser for Harry Reid, was him signaling a willingness to try to be the leader of the Senate Democrats and help the administration with this sort of unsolvable problem. But there is no plan. None of these questions that the Senate Democrats had last week have been answered.

As for the Uighurs, who Harry Reid thinks have done nothing wrong, Frank Wolf, who is a congressman from the tenth district of Virginia, has a large population of them there and is a friend and supporter of the Uighurs community, and though he does not believe that they are terrorists, he is so worried that they have been radicalized as detainees that he does not want them to come back here.

And, obviously, this is what FBI Director Muller told everyone in his congressional testimony last Wednesday, that the fear is that they come in and blend in with our prison population and can radicalize.

So there is no change in comfort level yet among the members of congress.

BAIER: And not only Congressman Wolf, but also Senate Democrat, Senator Jim Webb from Virginia said — he shot it down as well — Charles?

KRAUTHAMMER: I disagree slightly. I think things have changed in a week. A week ago the Democrats were in disarray, and now they are in somewhat of array.

What you see going on is, look, it was either going to be Obama having a humiliating retreat on Guantanamo and declaring it's going to stay open, or the Senate Democrats having a humiliating retreat and saying we will actually take prisoners in the U.S.

It looks like the Senate is yielding in deference to a president who is new, strong, and they don't want to unman.

What Harry Reid is doing is creating the premise for a new policy on behalf of the Senate Democrats — accept a few in maximum security prisons and disburse the others.

Look, Republicans have a real opening here, because that position is extremely unpopular, and it is quite nuts. Guantanamo works. Eric Holder, on a visit, said it's a good facility. Gates has said it is one of the best holding prisons in the world. So why not leave it open? Public opinion has shifted on this.

Republicans ought to seize on this issue and say it makes no sense to close a prison that works, is humane, is open, and would be extremely expensive and dangerous to shut. It's a win-win if the Republicans play it right.

BAIER: One of our emailers said we should rename Guantanamo Bay and perhaps call it the "Sunshine Center for Implementers of Man-Caused Disasters," and then it would solve everything.

(LAUGHTER)

KRAUTHAMMER: Rebranding is the key.

BAIER: That's big in this administration.

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