'Meltdown'-Proof? Sotomayor's Confirmation Assured?

This is a rush transcript from "On the Record," July 13, 2009. This copy may not be in its final form and may be updated.

GRETA VAN SUSTEREN, FOX NEWS HOST: President Obama's Supreme Court nominee faces the United States Senate. Judge Sonia Sotomayor's confirmation hearings, day one.


SEN. LINDSEY GRAHAM, R - S.C.: Unless you have a complete meltdown, you're going to get confirmed.


GRAHAM: And I don't think you will, but you know, the drama's being created here is -- is interesting.

SEN. JEFF SESSIONS, R - ALA.: I will not vote for, and no senator should vote for, an individual nominated by any president who believes it is acceptable for a judge to allow their personal background, gender, prejudices or sympathies to sway their decision in favor of or against parties.

SEN. DIANNE FEINSTEIN, D - CALIF.: I do not believe that Supreme Court Justices are merely umpires calling balls and strikes. Rather, I believe that they make the decisions of individuals who bring to the Court their own experiences and philosophies.

SEN. JON KYL, R - ARIZ.: From what she has said, she appears to believe that her role is not constrained to objectively decide who wins based on the weight of the law but rather who, in her personal opinion, should win. The factors that will influences her decisions apparently include her gender and Latina heritage and foreign legal concepts that, as she said, get her creative juices going.

SEN. CHUCK SCHUMER, D - N.Y.: It is the judicial record, more than speeches and statements, more than personal background, that accurately measures how modest a judicial nominee will be.

SEN. RICHARD DURBIN, D - ILL.: We need Justices whose wisdom comes from life, not just from law books.

SEN. JOHN CORNYN, R - TEXAS: Some of your opinions suggest that you would limit some of these constitutional rights, and some of your public statements that have already been mentioned suggest that you would invent rights that do not exist in the Constitution.

SEN. AL FRANKEN, D - MINN.: I am wary of judicial activism, and I believe in judicial restraint.

JUDGE SONIA SOTOMAYOR, SUPREME COURT NOMINEE: In the past month, many senators have asked me about my judicial philosophy. It's simple, fidelity to the law. The task of a judge is not to make law, it is to apply the law. In each case I have heard, I have applied the law to the facts at hand.

GRAHAM: When it comes to your speeches, that is the most troubling thing to me because that gives us an indication when you're able to get outside the courtroom without the robe, an insight into how you think life works. And this "wise Latino" comment has been talked about a lot, but I can just tell you one thing. If I'd said anything even remotely like that, my career would have been over. It just bothers me when somebody wearing a robe take the robe off and says that their experience makes them better than someone else. I think your experience can add a lot to the Court, but I don't think it makes you better than anyone else.


VAN SUSTEREN: Well, you just heard Senator Lindsey Graham thinks Judge Sotomayor will be confirmed, but he has worries about her. Senator Graham is back with us. Is that a good description, you have worries about her?

GRAHAM: Yes. Her case -- she's been a judge for 12 years, and when you look at her opinions, she's left of center but within the mainstream. The time she spent on the bench doesn't bother me as much as her speeches. And here's what she said. "I would hope that a wise Latina woman, with the richness of her experience, would more often than not reach a better conclusion than a white male who hasn't lived that life." And what I was trying to tell the judge, if I had said that, a Republican, white guy from South Carolina, people would be all over me. My career would be over. And that bothers me, what she said. It's OK to say that I think that I have something new to offer and I have a background that will make the Court like America. But to say that my background makes me wiser than someone else is inappropriate.

VAN SUSTEREN: Did you see any evidence in any of her decisions of that?

GRAHAM: You know, quite frankly, at the court of appeals, she's been sort of mainstream left-of-center, what I would expect from Obama in many ways. But these speeches are troubling in the sense that when she gets to be on the Supreme Court -- and you know this better than I do -- on the court of appeals, you're bound by the law set by the Supreme Court. On the Supreme Court, you sit there and you have a chance to make the law, literally, legal policy. You have a chance to change precedent. And I hope she doesn't take what I think is sort of a chip on her shoulder to the Supreme Court.

VAN SUSTEREN: Are you going to vote yes or no?

GRAHAM: I'm going to see what she says. I want her to explain to me what she meant. And I think she ought to apologize for that, quite frankly. I think it was way out of bounds. But my hope is that she will be able to convince me that that doesn't represent how she will be on the Supreme Court, that her 12 years as a judge is a better reflection. Quite frankly, I'd like to vote for her because President Obama won the election. She's a historic nominee. But I'm not going to vote for her if I don't think she's fair.

VAN SUSTEREN: Well, it's sort of interesting. You say that she -- you know, President Obama won the election, so he gets to pick.

GRAHAM: Yes, he did.

VAN SUSTEREN: But when he had the opportunity to vote on...


VAN SUSTEREN: Well, I mean, I've actually got it in front of me. He said about Justice Roberts, who he voted no on, he said, "There's absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land," but then he said that what he was worried about is whether the judge -- the critical ingredient is supplied by what is in the judge's heart.

GRAHAM: I would tell every member of the Senate to ignore Senator Obama. He set a standard that no one could follow. If I'm going to ask her about her heart -- she supported a brief when she was at Puerto Rican Legal Defense Fund that said that if you do not allow a low-income woman a federally-funded abortion, you're making a slave out of her. That to me is a radical statement. And am I going to talk about her heart when it comes to the unborn?

What Senator Obama did was he wanted to vote no against Alito and Roberts because he was running for president. And he made a standard up that's never been used before that I -- quite frankly, I think is dangerous. And if I followed his rationale, there's no way I'd vote for her or anybody else he picked.

VAN SUSTEREN: All right, well, the hearings go on. By the way -- cliffhanger.

GRAHAM: Yes...



GRAHAM: We'll see how she does. She could talk me out of voting for her. We'll see if she does.

VAN SUSTEREN: (INAUDIBLE) tease you about a cliffhanger because we sat and listened to all you elected officials today.

GRAHAM: Oh, God. Yes. I wouldn't wish that on the people at Gitmo to have to sit there and listen to 19 senators for three hours!


VAN SUSTEREN: And with that, I'll (INAUDIBLE) You said it! I did not!


VAN SUSTEREN: Thank you, Senator.

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