Are conservatives consolidating around Romney?

This is a rush transcript from "Special Report," March 22, 2012. This copy may not be in its final form and may be updated.

BRET BAIER, ANCHOR: For the men trying to get to that house to take the job of the current person who is there, this raised some eyebrows. Rick Santorum on the stump today saying, quote, "You win by giving people a choice. You win by giving people the opportunity to see a different vision of our country, not someone who's just going to be a little different than the person in there. If you are going to be a little different, we might as well stay with what we have instead of taking a risk with what may be the Etch A Sketch candidate of the future." Etch A Sketch, he held up the toy. This obviously the reference to yesterday, the comment by Romney advisor about resetting the race.

The Romney campaign was quick to have its own release of a statement. From Mitt Romney, "I'm in this race to defeat Barack Obama and restore America's promise. I was disappointed to hear that Rick Santorum would rather have Barack Obama as president than a Republican. This election is more important than any one person. It is about the future of America. Any of the Republicans running would be better than President Obama and his record of failure."

This on a day when Senator Tea Party, Jim DeMint of South Carolina, said this to reporters, not on camera, but to print reporters, quote, "I am not only comfortable with Romney, I'm excited about the possibility of him possibly being our nominee. His leadership skills, the fact he hasn't lived in his life in Washington. There is a lot to like there."

A lot of full screen graphics to absorb there. But we're back with the panel. Judge, are conservatives consolidating around Mitt Romney?

JUDGE ANDREW NAPOLITANO, FOX NEWS SENIOR JUDICIAL ANALYST: Reluctantly so, yes. I think people are tired of the long primary. I think people are beginning to say we can find things about Romney that we like. We're curious as to who his VP is going to be. But we're gonna reject the Rick Santorum attitude. It's gonna be any Republican but Obama, and I think that view is getting out there. I note, that as you pointed out, that Senator DeMint, who is the standard against whom many other conservatives measure themselves, did not say this on camera.

BAIER: He said it was not a formal endorsement, but that is a big informal endorsement, isn't it?

NAPOLITANO: We're all talking about it because it is an informal endorsement, yes.

BAIER: Steve, the Santorum quote on the stump, is this a turning point?

STEVE HAYES, SENIOR WRITER, THE WEEKLY STANDARD: I think it's a big deal. I think it's a really striking quote. I think for the people who have wanted a non-Romney candidate, those who have supported somebody else, at any point along this way, I think the presumption -- the working assumption is that Barack Obama would not beat the non-Romney candidate. I don't think there are other ways to read Santorum's comments other than to think that is what he is saying. There is no difference in effect between Mitt Romney and Barack Obama. It's the kind of comment that I think Republican primary voters will not look kindly on, including people who are inclined to support Rick Santorum.

BAIER: A.B., Rush Limbaugh said yesterday the conservative alternative to Mitt Romney may be Mitt Romney. And you have Freedom Works, the Tea Party movement, saying this about the Romney candidacy.


UNIDENTIFIED MALE: For us, the U.S. Senate is key to the success in moving policy in this country. If we can create a caucus of legislative entrepreneurs inside the majority and recapture the majority in the Senate, they will move policy that we can agree with to the president's desk. And in that case, Mitt Romney, if he is the presidential nominee for the Republicans and becomes President of the United States, could end up being the most conservative president we have ever had.


BAIER: Tea Party movement leader...

A.B. STODDARD, ASSOCIATE EDITOR, THE HILL: What's so interesting about Senator Jim DeMint saying that he's actually excited, that's the word that he used, is that he is famous for saying he would rather be in the minority in the Senate with 30 pure conservatives than being in the majority with a bunch of fakers. So he really has had quite an evolution.

When Rick Santorum starts saying things that indicate that he is out to get Romney more than just to elect a Republican, this is what Newt Gingrich started to say, and it's around the time he began to lose support. It becomes a battle of ego where you don't really want a Republican conservative to stop President Obama, people start to wonder what you are really doing. And I think that is a problem for Rick Santorum who endorsed Mitt Romney four years ago. I think it's the end for Rick Santorum. I think that he's gonna try to take a few more contests but I think he blew up his message. And he's failed to really make an argument as a disciplined general election candidate who could appeal beyond his base of rural and evangelical and non-college educated voters who earn $50,000 or less. And I think beyond that he is not trying to convince the party he wants to represent all of America. That's something that Romney has done from the start.

BAIER: Judge, what about libertarians? Where do you think the mindset of the libertarians who are most supporting Ron Paul is in this race at this point?

NAPOLITANO: You know, there is a division. There is the anybody-but-Obama. And there is the Rick Santorum view that libertarians would be far better off in 2016 after a disastrous four more years of Barack Obama than after a middle of the road presidency of Rick Santorum. I don't know what they're do. If he puts Rand Paul on the ticket, rumors that we've all heard about, libertarians will come out in droves. But there is no fire in the belly for the Mitt Romney that's campaigning because they don't know which one's going to show up to work the day after Inauguration Day.

BAIER: Judge, I would be remiss if I didn't ask about your thoughts heading into next week with the U.S. Supreme Court and this battle over the healthcare law, and it really comes down to fighting whether the mandate is constitutional. As you look at the court, the makeup of the case, what are your thoughts?

NAPOLITANO: I have read in preparation for many of these conversations all of their decisions on the commerce clause, particularly those of Justice Kennedy, the perceived, and I think accurately so, swing vote. The question is, does the Constitution's authorization to Congress to regulate commerce let Congress force you to engage in commerce? In my opinion he will say no as will the four conservatives and it will be a five to four vote to invalidate the mandate. And then Congress will have to decide what remains of that statute. Not the court -- Congress.

BAIER: And does it depend on these oral arguments? Or do you think that these justices by what they have said before and where they stand are pretty much locked into that -- where you see it, a five-four.

NAPOLITANO: I think they know exactly which way they're going to vote. They want to give the country the courtesy of a long and broad oral argument because the interest in this case is so intense. Rarely does oral argument change your mind when you're on that bench.

BAIER: Quickly, does it change the dynamic of this political risk?

HAYES: Well, it could. I don't think losing that, if it happens that way, I don't think losing that would be the end of the argument for Republicans. They would then say President Obama overreached so far that he tried to do something that was later found unconstitutional.

BAIER: A.B., you agree?

STODDARD: I think that it's gonna be very hard for Mitt Romney to fight back on mandates, whether it's upheld or not, in a debate with President Obama.

BAIER: OK, panel, thank you. Judge, it's been a pleasure having you here.

NAPOLITANO: Good to be here.

BAIER: That is it for the panel. But stay tuned for something you must see, especially if you're a parent.

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