'Special Report' Panel on Sotomayor and High Court's New Dynamic

This is a rush transcript of "Special Report With Bret Baier" from October 5, 2009. This copy may not be in its final form and may be updated.


THOMAS DUPREE, FORMER JUSTICE DEPARTMENT ATTORNEY: You've got a new justice, you've got a whole new group of cases. So it is an exciting time just to see the dynamics on the court, whether they have shifted, whether there is a change substantively for the addition of Justice Sotomayor. You never exactly know what is going on behind the scenes when they are sitting in that closed conference room talking about how they are going to decide a case.


BRET BAIER, HOST: Part of the mystique, the mystery behind the Supreme Court what happens in that conference room behind closed doors. And this is the first day of the new session, first day with Justice Sonia Sotomayor.

Let's bring in our panel tonight, Stuart Taylor, columnist for the National Journal, Steve Hayes, senior writer for The Weekly Standard, and Mara Liasson, national political correspondent of National Public Radio.

Let's start first with a new set of justices. Stuart, what does this mean? Does it turn the court? Does it change it?

STUART TAYLOR, NATIONAL JOURNAL: I think the addition of Justice Sotomayor won't probably produce dramatically different decisions in terms of ideology because she is expected to be a thoroughly conventional liberal. She is replacing Justice Souter, who is a fairly conventional liberal.

What it will change, and a lot of the justices have spoken to this, is the personal dynamics inside the court, and then it may produce, over time, you know, a little surprising changes here and there. A lot of people expect her to be more conservative than Souter was on criminal law issues, and more liberal than Souter was on business law issues.

And at her confirmation hearings, she played her cards very close to the vest.

In her first argument, she raised a provocative question as to whether corporations should really enjoy full constitutional rights, which was kind of in the background of a case they are hearing, but that raised some eyebrows.

BAIER: Steve?

STEVE HAYES, SENIOR WRITER, THE WEEKLY STANDARD: I think, in part, we won't know because, of course, as you say, all of this is done behind closed doors. We won't see the effect she has, if any, on the arguments as they are making them behind the scenes.

But I agree with Stuart. I think one of the most interesting areas to watch is going to be what happens in criminal justice issues, criminal proceedings issues, because Souter was sort of a fairly down-the-line libertarian on those issues, and Sotomayor, there are hints in some of her decisions earlier, some of her writings that she won't be that way.

And, you know, it will be interesting to see, given that she was nominated by a liberal president, and that we are in a Washington that is dominated by the left right now, if she, in fact, bucks that and tacks more to the right.

BAIER: Mara, what do you think?

MARA LIASSON, NATIONAL POLITICAL CORRESPONDENT, NATIONAL PUBLIC RADIO: I think watching her and seeing if she lives up to the liberal hopes that have been invested in her.

But also something else. Roberts and Alito have been there for a while and have gotten their sea legs. The question is will they be willing to push harder. Up until now, Roberts has been very, very careful, moving to the right for sure, but in tiny little baby steps.

And it will be interesting to see this term if he is willing to be bolder.

BAIER: What about that, Stuart? Does it change the dynamic for those two in how they may cases, and what about the effort to persuade other justices in that conference room?

TAYLOR: I don't think the presence of Justice Sotomayor changes that dynamic, but it may be changing over time anyway.

Ever since Roberts and Alito joined, particularly Alito being considerably more conservative than Sandra Day O'Connor, whom he replaced, one question has been will they incrementally push to the right here and there, or will they take giant leaps and overrule precedents and strike down big acts of Congress, which is the sort of thing that Chief Justice Roberts sounded like he wasn't into.

I think this term, and in particular big campaign finance case, may tell us a lot about how fast they're going to move.

Also, there are five relatively conservative justices. They know that they're not going to get any reinforcements while Barack Obama is president. And so if they want to make hey, they might think we better get to it.

BAIER: Speaking of that, Justice John Paul Stevens only hired one clerk for this term, and that raised a lot of eyebrows here in Washington whether he is positioning for retirement.

Steve, any thoughts about that?

HAYES: I think he probably just assumed he would be more productive himself and didn't need the support.


Yes, I think to the extent that Supreme Court watchers can divine those things, that may be one sign. But I think it's true that the two most likely retirements are Ginsburg and Stevens and they certainly hold down the left side of the court, if you divide it that way.

LIASSON: But it doesn't give — if, in fact, either one of them resign or step down, it doesn't give Barack Obama a chance to shift the balance of power on the court because of the number of liberals.

BAIER: Right. Stuart what about the cases they are agreeing to take up. That is obviously the big debate every year what they take up and what they don't. As you look at the list, and it is a wide variety, what strikes you?

TAYLOR: There is a big important list.

I mentioned the campaign finance case that. That has probably gotten more attention among Supreme Court watchers than anything else because if they decide it in the way they seem poised to decide it after an oral argument a couple of weeks ago, they would — it would be a big new decision striking down a big chunk of the McCain-Feingold campaign finance reform law and liberating corporations to spend money in elections more freely than ever before. There would be a — there is a law that is more than 50 years old that they're considering whether to strike down.

There is a big gun control case. Will their decision striking down a D.C. gun control law, a very strict one, will they apply that to other cities that are under state law? And there is a complicated doctrine there. Probably they will. That could open some important doors. I don't think it will lead to wholesales striking down gun control laws.

But then there is a whole long list of other things — dogfighting videos, are they protected by the First Amendment? Criminal cases, will the Miranda rights be weakened a little bit or strengthened a little bit?

By the way, I don't think criminal cases, which were the original Warren court revolution in a lot of ways, I don't think they are as important to the liberals compared to say gay rights, abortion, et cetera, as they once were.

BAIER: Steve, for Sonia Sotomayor, the business regulation cases will be, as we talked about, an interesting test of where she sides.

HAYES: Yes, there is a sense in Washington if you talk to people that pay careful attention to the court that she will be more liberal on those cases and we'll see exactly, a, how she decides, and b, what kind of influence she has, what kind of writings she does.

BAIER: Mara, anything else strike you?

LIASSON: I think just also watching the personal dynamics. She is a female. That counts for something. They can build consensus sometimes in ways that males can't. The question is will she not just be a reliable liberal vote but actually be a majority maker.

BAIER: OK, coming up, what happens after the Supreme Court rules? We'll take a look at that when we come back.



SCOTT BULLOCK, INSTITUTE FOR JUSTICE: This decision was at first blush seen as a great victory for cities and developers and business interests that wanted to abuse the power of eminent domain.

In ways it has turned into their worst nightmare because of the backlash. This project has been a failure. Over $80 million in state taxpayer money has been spent and there has been no new development in the area whatsoever.

ADAM SPRECACE, NEW LONDON CITY COUNCILOR: Between court cases, and now that those are wrapping up, you have an economy that has slowed things down, it is taking longer than we had expected.


BAIER: Four years ago the Supreme Court ruled that the city of New London, Connecticut could use imminent eminent domain laws to seize private property and essentially for economic development on this 90- acre tract. What you say there, there is nothing going on there as far as the development four years later.

What about the impact after Supreme Court cases, this case and also the D.C. handgun case?

We're back with the panel. Mara, on the eminent domain question, here are these people fighting for this, but they says the economy turned and they couldn't make it happen.

LIASSON: It is kind of ironic, the way that the court cleared the way for them to build something there and no and nothing has been built there.

The court's job is not to settle a local dispute. It is to settle a matter of law. And what they said is it a constitutional to do what the city of New London wanted to do, and it will make it easier for other cities should they want to take on the ire of their citizenry who they are going to be kicking out of their homes to do that.

I think it is ironic, but I don't think it necessarily means that what the Supreme Court did was right or wrong.

BAIER: Just because there is not development there doesn't prove this case. But the case has been looked at by a lot of people, Steve, as being an interesting ruling. It was a five-four decision.

HAYES: It was a disastrous ruling. It was a terrible ruling. I don't think we should mince words about it.


HAYES: It was an awful ruling, and that's exactly why you have seen this political backlash. Who would have thought before the ruling that you would have essentially a nation of people or a huge swath of a nation of people get so exercised about eminent domain?

But I think people understand the basic unfairness of having government bureaucrats, whether they be sitting on city councils or elsewhere, making decisions about what property they can take from citizens and give to corporations or to other citizens or what have you.

It was an unfair decision. I think it spawned exactly the kind of political quack lash it should have.

BAIER: Stuart, is there some looking back at that ruling by these justices?

TAYLOR: I think there is a lot of looking back.

I'm not so sure it was a terrible ruling. Basically the ruling was you can take private property for public use, and that includes giving it to another private person to develop it.

What is clear is that it has been a disaster in practice in two ways. It has been hugely unpopular in part because the people this property was taken from weren't rich people. They were ordinary folks who were put out of their homes for this fiasco.

And it has been a fiasco in terms of what was put there, and it was a fiasco before the economy collapsed. So this one has not worked out very well for advocates of government intrusions on property rights.

BAIER: The other story we did was the D.C. handgun case in which the Supreme Court ruled that Washington D.C. residents can own a handgun. However, in practice, it is much more difficult because of the city and how they set it up, Stuart.

TAYLOR: Yes. There was an interesting story in The Washington Post. I think one of the reporters tried to get a handgun and wrote a story about it cost hundreds of dollars, took hours and hours, multiple trips to the police station.

And basically the lesson was that D.C. may have to let us have handguns but they are making it as hard as they can.

Frankly, that should not be surprising. D.C. officials said afterwards we will go right up to the line of what the court will let us do in terms of restricting handguns, and that is what they are doing. It will probably take more court decisions to force them to make it easier.

BAIER: Yes. Steve, the lesson is that the court can rule on the case, but in practice it's a different story.

HAYES: I think we will likely see more court decisions.

There is also some interesting politics happening behind this where Republicans have worked to attach amendments to a bill, the D.C. Voting Rights bill, that would actually legalize all guns, make it a lot easier for people to do this.

And Democrats have thus far been very quiet about this because they don't want to raise the issue, and there are a lot of Democrats who have actually challenged the president on this issue, on gun control. They don't want to talk about it.

BAIER: And there is another case, a Chicago gun control case, a handgun case.

LIASSON: From the president's own hometown. And this is a president has said famously that the Second Amendment actually does give an individual the right to bear arms.

BAIER: So it will get another pass this term.

LIASSON: And the Democrats have been pretty clear for many years now, gun control is not at the top of their list.

BAIER: And Stuart, final word — any surprises that you predict here looking at this term?

TAYLOR: Oh, boy. I'll take a flier since nobody remembers when you predict wrong, and say at least for the first term, Justice Sotomayor will not be the flamboyant liberal that conservatives expected, but give her time.

BAIER: Welcome to the panel. Thanks for playing tonight.

TAYLOR: Nice to be with you.

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