Biased Against the Boy Scouts?

This is a partial transcript from The O'Reilly Factor, August 6, 2003. Click here to order the complete transcript.

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BILL O'REILLY, HOST:  Now for comment on this ruling and our lead story, FOX News chief judicial analyst Judge Andrew Napolitano and from Anaheim, California, Dr. John Eastman, professor of constitutional law at Chapman University.

Dr. Eastman, we'll begin with you. How do you see this?

JOHN EASTMAN, PROFESSOR, CHAPMAN UNIV.: Well, Bill, this is an extraordinary decision. I don't think I've ever read the first paragraph of a court opinion that just drips with animosity towards one of the parties, as this opinion does toward the Boy Scouts (search), calling it, displaying an intolerance toward homosexuals or agnostics or atheists simply because they have adhered to a policy that they've had on the books for the entire 100 years of their existence, that we want our children to acknowledge a duty to God and their country.

This is extraordinary. And that they would cancel a lease that the Boy Scouts have had for over 50 years on land that, in fact, never was the city's originally donated for the very purposes of giving it to the Boy Scouts is extraordinary.

I think the Boy Scout's own constitutional rights are being infringed here. And the notion that this would be done from the court bench, rather than the city through the legislative process deciding who to give a lease to, is also extraordinary.

O'REILLY: All right, so we can draw by your remarks, doctor, that this Judge Napoleon Jones basically has a grudge against the Boy Scouts and is using his power, all right, to punish that group.

EASTMAN: I think that's right. What we have here is to treat the Boy Scouts as if it's a church is in itself bizarre. But to do so then as the basis that somehow by leasing property to the Boy Scouts on similar terms that they leased to, you know, every other youth group organization in San Diego County is to discriminate against the Boy Scouts for holding true to their principles.

O'REILLY: All right.

EASTMAN: It's not unlike the religious test that's being imposed on Alabama attorney general Bill Pryor for holding to his beliefs in his Senate confirmation hearings.

O'REILLY: Okay.

EASTMAN: The intolerance that's at issue here is those who wouldn't allow anybody else to have beliefs contrary to the kind of perceived wisdom of the day.

O'REILLY: Judge, how do you see it?

ANDREW NAPOLITANO, FOX NEWS JUDICIAL ANALYST: Well, I think the professor is exactly right. And in the early part of that opinion, the judge, whom I don't know, not only expresses animosity towards the Boy Scouts, but towards his superiors in the Supreme Court of the United States he's saying that the decision of the Supreme Court of the United States, which says to the Boy Scouts, you can include or exclude whoever you want because you're a private organization, that this decision he made today is the fallout from that decision. Bologna.

He made this decision today by avoiding and evading an analysis of the facts in this case and imposing his own, I'm going to call them, bizarre views on the litigants. There is no basis in the evidence for him to find that the Boy Scouts are a church. It is only an obviously conspicuous religious organization that the government can't have a financial relationship with, not one that simply says we want you to express some kind of belief in some kind of a God.

O'REILLY: Yes, nature. And it can be nature. Sure. But the big point is, and that's why we didn't have a debate here, ladies and gentlemen. This really isn't a debate. I mean, this is just way beyond the pale.

But what this judge has succeeded in doing, along with the ACLU, who basically found two people, lesbian couple and an agnostic couple, as I said, who have children, to file this. You know, this is what they do. They go around and they find people.

But what they've done here is they've basically tied up the courts for years with this, costing taxpayers millions of dollars because this guy's ruling has to stand until it's appealed and appealed where, to the ninth, which is the most liberal court in the world.

NAPOLITANO: Correct, and then ultimately the Supreme Court of the United States. I'll tell you what the next step is going to be. The next step is going to be to invalidate the lease and to get the Boy Scouts off the property. Now what the judge didn't look at is the fact is the Boy Scouts maintain, take care of the property. There's not a single incident that -- of someone trying to get on that property who was excluded by the Boy Scouts. There's no religious test. There's no sexual orientation test. Anybody can go into that park who wants to, and the judge wouldn't hold a trial. He wouldn't look at this.

O'REILLY: All right. Dr. Eastman, now people are saying well what can we do about this? But you really can't do anything about this. This federal judge is appointed by President Clinton for life. He was confirmed by the Senate. And you just have to go through the process now, right?

EASTMAN: Bill, last time we were on, we were talking about courts getting out of control. And I think we need to revive the notion that judges can be impeached when they refuse to follow the law or they so distort the law as to issue rulings like this. I think that threat of impeachment needs to be revived.

O'REILLY: All right, now who would impeach him though? How would that happen?

EASTMAN: Well, you know, the House of Representatives has the right to bring impeachment. The standard for impeaching judges is, you know, they are there for life or during good behavior.

O'REILLY: All right, so a member of the House...

EASTMAN: And they manifest bad behavior...

O'REILLY: All right.

EASTMAN: What's that?

O'REILLY: But I want to carry this through because we can contact many members of the House who might be interested in doing this. So the members of the House would have to draft an impeachment against this Napoleon Jones, based upon, as Judge Napolitano stated, totally disregarding the law and using his personal animus against the group for his ruling, right?

EASTMAN: That's right. And in fact then, undermining their own exercise of constitutional rights, rights that have been explicitly and recently recognized by the Supreme Court of the United States.

And there's another thing that we need to put on the table here because the way this story has been played is the Boy Scouts have this favorable lease for $1 a year. What's not coming out in the major national media is that they have agreed to spend millions of dollars in upkeep and renovation...

O'REILLY: Yes, but I don't think anybody even cares...

EASTMAN: ...for a park that's going to be available to the citizens of San Diego.

O'REILLY: ...at this point. They just care about the abuse of power. I'm going to let Judge Napolitano wrap it up. We got 20 seconds.

NAPOLITANO: I'm very interested in the impeachment issue.

O'REILLY: Yes, let's -- we'll pursue that.

NAPOLITANO: I'll tell you why. Federal judges can only be impeached if they commit a crime which is a felony, with the exception of Judge Alcie (ph) Hastings, who's now a member of the House of Representatives. The only federal judge in history, who was impeached even though he was acquitted of the felony for which he was charged. So...

O'REILLY: But can this judge be impeached just basically on his attacking a group?

EASTMAN: Not according to case law, no.

O'REILLY: Yes?

EASTMAN: There has to be a criminal charge filed against him first.

O'REILLY: All right, well we'll sort it out. Gentlemen, thanks very much. Very disturbing.

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