Let the Battle Over Supreme Court Nominee Kagan Begin

This is a rush transcript from "On the Record," May 10, 2010. This copy may not be in its final form and may be updated.

GRETA VAN SUSTEREN, FOX NEWS HOST: Tonight, the knives are getting sharpened and the battle begins over the president's Supreme Court nominee, Elena Kagan.


RUSH LIMBAUGH, RADIO TALK SHOW HOST: This is a great opportunity to find out about this woman's mind. That's what we need to find out, what is in her mind? And due to exhaustive research that I have personally conducted today on this, I think I can give you a pretty good idea what is in her mind. She is a pure academic elitist radical! She comes from the faculty lounge. She is a utopian theoretician!


VAN SUSTEREN: Well, I guess we know what Rush thinks. But Rush does not have a vote. Our next guest does, Senate minority whip Jon Kyl. Now, Senator Kyl has a voting history involving Kagan that might make things complicated.


VAN SUSTEREN: Senator, nice to see you, sir.

SEN. JON KYL, R - ARIZ.: Thank you, Greta. Good to be with you.

VAN SUSTEREN: All right, last time Elena Kagan was before the Senate, you voted yes to confirm her for the solicitor general's job. She's now up for the United States Supreme Court. What are you going to look for this time? What could possibly change your mind or what reinforces your earlier decision that she's a qualified candidate?

KYL: First, I made it clear then that it's one thing to confirm someone for a temporary job, maybe up to four years or so as solicitor general, quite another to give someone a lifetime appointment to the highest court in the land. And she is quite young for this kind of job at age 49, almost 50. She could have decades on the Court. So we will need to look into her record more thoroughly than I think we did for solicitor general. And the fact that she hasn't been a judge means that we don't have clues about how she will act in a judicial setting. And that's something we'll have to make up for by inquiry into other areas.

VAN SUSTEREN: Could it be a plus -- not in terms of whether there's a track record for you to make your decision, but could it be a plus that we have -- that someone's on the Court who doesn't have a judicial background, that has a different background?

KYL: Yes. As a matter of fact, Justice Rehnquist I think is the last to reach the Court without any judicial experience. And I think that having some judges without judicial experience is not bad thing, particularly if they have something else to make up for. But it makes our job a little more difficult as senators because we don't have an idea then as to how she will react as a judge, as we do of somebody who's already served in that capacity.

VAN SUSTEREN: Well, he may want a do-over on something. In about 1995, she wrote an article in which she basically was critical of the confirmation process, saying senators really didn't get answers, really didn't get information about what the candidates would like (ph) to be. I assume she'd like a do-over on that. Maybe not.

But I'm curious. Are you going to be asking her or even billing her on the commerce clause? Because that is the health care legislation that's going to -- it's going to bubble up to the United States Supreme Court. How one -- how one perceives the commerce clause will make a big difference.

KYL: First, I think she's almost done a do-over on that statement back 15 years ago. More recently, she has said she thinks she got it a little wrong then and that it's more difficult to inquire into a Justice's points of view to discern how they might rule on issues. She doesn't think it's quite as good an idea now to do that. And I, frankly, happen to agree with her.

For example, on the commerce clause, I can inquire and probably will about general views on the commerce clause, but she's going to be very careful. Given the fact that this case might come before her on commerce clause grounds, the United -- Citizens United case, for example, she's going to be careful not to give any clues as to how she might decide that case. And she shouldn't. She hasn't heard the case yet. She doesn't know all of the facts and she hasn't researched all of the law. So it's unfair for us to ask a prospective Justice how they might rule on a case. And if that's the case, then it's also somewhat unfair to ask all the questions that get right up to that point but don't really ask the final question, So how would you rule? It's a very difficult proposition.

VAN SUSTEREN: Are you not curious, though? Because, I mean, just in the health care legislation, that fight, the case down in Florida, the big question is if you have a broad reading of the commerce clause, then it's pretty clear the health care legislation is constitutional. If you have a very narrow view of the commerce clause, then it's likely you're going to say it's unconstitutional. So if I were sitting there, trying to decide whether, you know, a Justice is someone that I might want, I would want to know that issue.

KYL: I misspoke. I was thinking of another case that she might be dealing with, the Citizens United case. But no, you're absolutely right. How the Court rules on the health care legislation will depend on how broad or how constricted they view that phrase. She knows that. She knows all eyes are going to be on that, and she'll probably give some platitude about, you know, It has a certain kind of meaning, but I'm not going to tell you how I might rule in a case like the health care legislation. And I think she shouldn't tell us that.

She needs to -- and here's my point, Greta. I don't want a Justice who goes into the Court with an idea of how she wants to rule in certain cases, with a predisposed notion of how justice should come out. I want her to read each case based on the facts and on the law and decide it. And as Justice Roberts said, if the law's on the side of the big guy, the big guy wins. If it's on the side of the little guy, the little guy wins.

Now, she has said some things in connection with her clerkship with Justice Thurgood Marshall on the Court that could lead one to believe that she has a standard somewhat similar to the Justice Sotomayor language about empathy for the downtrodden and the disadvantaged and that a Justice's job is to try to protect them. That we will want to inquire about because, obviously, you want justice for all, and that may or may not mean protecting someone who is disadvantaged.


VAN SUSTEREN: Republican senator Jeff Sessions is the ranking member on the Senate Judiciary Committee. He went "On the Record."


VAN SUSTEREN: Senator, nice to see you, sir.

SEN. JEFF SESSIONS, R- ALA., JUDICIARY COMMITTEE: Thank you. Good to have you in my offices.

VAN SUSTEREN: Well, I appreciate it. We sort of -- we always sort of invade your office, so it's nice to be here.


VAN SUSTEREN: Last time around, when Elena Kagan came up for solicitor general, you voted no to confirm her. What would she have to tell you now, or what would have to change in order for you to vote yes?

SESSIONS: You know, I'd have to deal with the military exclusion from the Harvard campus when she was dean. That was something that did concern me because I was involved in passing the legislation that required the admission of the military on campus. I think she'd have to deal with that.

And secondly, there is afoot in America a philosophy of judging that I think is dangerous to the Constitution. It suggests that a judge can consider evolving circumstances and things outside the Constitution to redefine its meaning. So I believe any good judge should be faithful to the words and text of the Constitution.

VAN SUSTEREN: All right, let me talk about the military aspect first. You grilled her about "Don't ask, don't tell" last time she was here. Do you intend to ask her about that this time?

SESSIONS: She was asked about that last time, and I made some remarks about it on the floor...

VAN SUSTEREN: I guess "grill" is my term. I -- "grill" is my (INAUDIBLE)

SESSIONS: But she'll need to answer that because I think it's not a small matter. And when she was a dean of Harvard, we had 900 people killed in Iraq and Afghanistan, and they were not permitted to come on the Harvard campus to recruit JAG officers because she believed that President Clinton's "Don't ask, don't tell" policy was wrong. And I could see her disagreeing with it and disagreeing with the policy. But to block these wonderful men and women from being on the campus of a great university like Harvard I think was a step too far. And so I think she'll have to deal with that.

VAN SUSTEREN: Could she? I mean, is it theoretically possible? Did you have insufficient time to question her or she had insufficient time to answer, so that this second round, as she gets nominated for the Supreme Court, that -- that there's -- the door's open on that issue with you?

SESSIONS: I think she should be given a full chance to explain it, and she will be given that chance. And her whole record should be looked at, and it will be looked at more thoroughly this time. You know, I think that hearing last time was just a week or 10 days, two weeks from the nomination. It was a pretty quick hearing. And I'm not sure when -- this one will be a lot more in depth.

VAN SUSTEREN: You know, I'm sort of curious how the Senate is going to deal with one particular issue, is that there's a lot of national attention on this health care bill. And it's in the trial court down in Florida, but it's going to make its way to the United States Supreme Court and it's going to hinge on how the commerce clause is interpreted. Someone who interprets its broadly will say that the statute's constitutional. If it's narrowly, then the statute probably is not constitutional. Do you ask her about the commerce clause or not? Or do you expect to?

SESSIONS: I think she will probably be asked about the commerce clause and how far it reaches and how it should be interpreted. I think she should be able to give some general statements about that.

But I -- one thing we've got to know, that if President Obama appoints her and she sits on that Court that she shouldn't have any hesitation to reverse any part of any legislation that he worked to pass if it's not constitutional or if it's defective. So we'll need to know she's independent. Mr. Gibbs said the other day that the president looks for results-oriented judging, and that's troubling because a judge, you know, should be objective and hear both sides of the case and render an objective opinion. So I think objectivity, not being a rubber stamp for the administration, will certainly be an issue to raise with her.

VAN SUSTEREN: Is there any sort of other burning issue that you didn't get a chance to ask her last time that you think is fair chance now, or you -- or you -- for some other reason didn't ask it last time but now you want to ask her?

SESSIONS: Well, I think we'll want to know whether or not she can set aside her political beliefs. Her demeanor and style is friendly and collegial, but she's been a very aggressive liberal Democrat, not a mainstream Democrat so much as an activist Democrat. And I think we need to be sure that she can separate that but -- from...

VAN SUSTEREN: How does she tell you that, though? Instead of just saying, No, I'm just going to do the job, I'm just going to apply the law? I mean, how does a candidate impart to you an ability to simply follow the law, other than just saying, I will?

SESSIONS: That's a good question. If you're a judge, you've got a record. If you've practiced law for a long time and have a record of objectivity and being able to handle those kind of things in a fair way, I think that creates a record. But she doesn't have that kind of record, so we'll have to ask her about it. But you're right, it's pretty easy for a judge to say, Well, I'll follow the law, or, I'm going to be fair. And each senator would then have to, you know, evaluate honestly how they feel about that response and whether it's satisfactory.

VAN SUSTEREN: Senator, thank you, sir.

SESSIONS: Thank you.


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