This is a rush transcript of "Special Report With Bret Baier" from May 1, 2009. This copy may not be in its final form and may be updated.


PRESIDENT BARACK OBAMA: The process of selecting someone to replace Justice Souter is one of my most serious responsibilities as president.

So I will seek somebody with a sharp and independent mind, and a record of excellence and integrity. I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook. It is also about how our laws affect the daily realities of people's lives.


BAIER: Supreme Court Justice David Souter is retiring at the end of the court's session in June. We heard about it. However, it wasn't official, even at the White House briefing today, until the president surprised all of the reporters there and said he had just spoken to Souter on the phone.

We have the new pictures of that phone call in which he said he got word, and saying farewell to Justice Souter, that he will leave in June. And obviously Souter is part of the liberal wing of the court.

So how does this affect the Supreme Court and this president's decision to replace Souter? Let's bring in our panel, Fred Barnes, executive editor of "The Weekly Standard," Mort Kondracke, executive editor of "Roll Call," and syndicated columnist Charles Krauthammer.


FRED BARNES, EXECUTIVE EDITOR, "THE WEEKLY STANDARD": I think the president is wrong about one thing. It is about a legal theory. It is called the constitution of the United States, which outlines the roles of government, for the federal government and states, and so on. And it prescribes limited government.

Now, I suspect Obama, since he has said in the past he wants to name someone who has empathy, that that's important, we're going to get some liberal who's probably even more liberal than David Souter, who turned out to be awfully liberal after being — somehow selling himself, or causing people inside the Bush 41 White House, the first President Bush, to believe that he was a conservative.

And that's how they sold him, as a conservative, David Souter. He was instantly a liberal of the court.

And Republicans are not going to be able to block whoever Obama names, even though Obama does not come to this with clean hands. He was one who advocated a filibuster against Sam Alito when he was nominated by President Bush. Now, the Democrats wound up not trying to do that, but he was in favor of that. That would have been unprecedented.

Republicans do have a role here, and it's to talk about judicial activism and the dangers of it and the way it — not only do judges legislate when they shouldn't, but they divide the country on issues after issue, the best one being abortion.

BAIER: Mort?

MORT KONDRAKE, EXECUTIVE EDITOR, "ROLL CALL": Look, unless Obama nominates a true far left liberal activist, which you really wouldn't really expect him to do, it's not going to change the voting on the Supreme Court.

Souter's a liberal. He presumably will appoint a liberal, so it's a little bit like Arlen Specter switching parties. The votes will be the same.

On the other hand, Obama does have the opportunity to pick Sonia Sotomayor, who is a Hispanic —

BAIER: The second circuit court of appeals.

KONDRACKE: Right, and was born in the South Bronx, has some life experience that might recommend her to Obama — was appointed by George Bush the first to the court in the first place, so she has some bipartisan appeal.

Hispanic, she would be the first Hispanic on the court. That would, presumably, help seal the Hispanic vote for Obama. And so that would be a blow to the Republican Party, where they have some hope of getting the Hispanic vote.

So that's like Specter again, hit the Republicans.

CHARLES KRAUTHAMMER, SYNDICATED COLUMNIST: It's true that whoever Obama appoints is not going to make any change in the balance of the court because Souter was a liberal, as liberal as you come.

But I thought what Obama said today was really remarkable when he said I want someone on the court who understands that justice isn't about abstract legal theory. It's about how our laws affect the daily realities of people's lives. Now that is not only wrong, it's deeply corrupting. The idea that you ought to be thinking about how the law affects the reality of someone's life is something that you do when you are passing a law or create a law. That's what you do if you are a member of Congress who represents people and their needs. But once the law is passed, the only job a judge has is to interpret the law without consideration of a person's standing in life. Otherwise you could never have, say, a bank foreclosing on a home, because who, after all, is more affected, a bank that might lose a few dollars, or a family that's going to lose its home and future livelihood, et cetera? The whole idea blinds a justice and the statutes that we have outside our courthouses of a blindfold over justice is that you do not look at a person's station in life, their needs in life, requirements in life. It's entirely about the law. And for Obama to state the exact opposite openly as a way that will guide him in his appointments is quite radical.

BARNES: That's what liberal judicial activism, Charles, as you know, is all about. It's entirely results oriented.

KRAUTHAMMER: But rarely is it admitted.

BARNES: That was, the explicitness that the president was - but it's about achieving liberal goals through the courts. It's not about just interpreting the constitution.

KRAUTHAMMER: I credit Obama with candor.

BAIER: Let me go down the row. Are you pretty sure it's a woman?

BARNES: I have no way of knowing, I expect that.

KONDRACKE: Ye, I would guess so. But who knows?

KRAUTHAMMER: Oh, no — 100 percent it will be a woman. That's done.

BAIER: Is the swine flu overblown? Is President Obama overexposed? Would you trust Congress to fix college football? The Friday lightning round is next.



UNIDENTIFIED FEMALE: And now to the swine flu.

UNIDENTIFIED MALE: The swine flu outbreak.

UNIDENTIFIED FEMALE: Fears over swine flu.

UNIDENTIFIED MALE: The world on high alert for a possible pandemic.

UNIDENTIFIED MALE: The swine flu outbreak —

UNIDENTIFIED MALE: It really could spread into a pandemic.


BAIER: A lot of coverage of the swine flu. We're all concerned about it. Should we be? Is it overblown — Charles?

KRAUTHAMMER: I think the administration has handled it rather well, with the exception of Joe Biden.

I think they have emphasized that it can be a real issue, it can be a problem, but it's like, right now it looks like the regular annual flu, something like it, and if it stays like that, the idea that you ought to be cautious but not panicked is exactly the right approach.

KONDRACKE: As you noted earlier, there have been pandemics that have killed 40 million people in 1918, 1919, and others that have killed a million people around the world.

And by the way, the 1918 flu was an H1N1-type virus. So it's the same thing.

This is like a fire drill in school, you know. Every once in a while you have to test out the public health and the U.S. government's response to a possible emergency. Maybe we've gotten by this one. It's a false alarm. But it's good to practice.

BARNES: I'm worried, you know, being in crowds. I'm kind of worried about being in this panel, there so many people here!


BAIER: We got word that Joe Biden did travel on Amtrak today. We just got word.

BARNES: And Mort just coughed. I may have to get up and go.

No, I agree. I think the administration's handled it well, except for Biden. And, of course, they can track these things so much better now from the very beginning of the outbreak than they used to. So I'll have to say they seem on top of it.

BAIER: Fred, is President Obama overexposed?

BARNES: He is overexposed. And Presidents are always tempted, because they can get on television all the time and command a national audience to do it. But look at his press conference a few nights ago. He had nothing new to say. It was just pure vanity.

He didn't move any numbers either. When Ronald Reagan used to go on in this of his presidency early on, numbers would change on issues that he was promoting. That didn't happen with Obama.

BAIER: The FOX News choose not to take the press conference, and they did win the night of the networks.

KONDRACKE: Counterprogramming works. If everybody's doing one thing and you do the other, then it's usually to your advantage when it's an event like this, where 22 million people, I guess, 22 million people watched Obama. And you know, there were obviously some people who weren't interested in politics.

KRAUTHAMMER: He is slightly overexposed. He is spending a lot of political capital, except that he has a lot to start with. Like Reagan, he has got a big storehouse of goodwill and charisma.

And, secondly, he has a huge agenda that has to be enacted in the first year. And that's why he is spending a lot of that capital now. If he hoards it and waits, it will be too late.

BAIER: Congress on college football?

KRAUTHAMMER: Well, let's see. In Pakistan, the government is teetering, with the bad guys in reach of a nuclear arsenal. We have got a war in Iraq, we've got a war in Afghanistan. We've got Iran about to go nuclear. We had two quarters of contraction, the largest since the '50's, and we have a pandemic.

I would say that Congress holding hearings on the football playoff system is either a case of being completely out of their minds or an early symptom of the fever of swine flu.


KONDRACKE: Look, it is — college football is big business. It is interstate commerce. But this is not something that Congress ought to legislate. I'm in favor of the playoff system, but not by law.

BARNES: I'm in favor of limiting government, among other things, obviously, which President Obama isn't, as we heard what he said about the court.

But, look, the BCS is terrible. The team I like, Auburn, I think would have been the national champion a few years ago if they'd had an eight team playoff, which they ought to have. That's what they have in Division Two, Division One AA, they have it in Division Three. Why not with the top teams.

BAIER: Not by Congress, then?

BARNES: Not by Congress! Geez!

KRAUTHAMMER: The country of limited government, Fred.

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