President Bush Braces for a Judicial Fight

This is a partial transcript of "Special Report With Brit Hume," April 12, 2005, that has been edited for clarity.

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SEN. CHARLES SCHUMER (D), NEW YORK: We have approved 204 judges. Ninety-eight percent of those don't agree with me on hardly anything, or most Democrats. They are almost all pro-life, they are almost all extremely conservative. That's who the president has nominated.


BRIT HUME, HOST: The heart of the Senate Democrats' case, though, against some of President Bush's appellate court nominations is this: the nominees are extremists. And we, the Senate Democrats are therefore entitled to use the extraordinary step of denying them a vote in the Senate to keep them off our nation's second highest courts.

So let's take a look at some of the more prominent nominees with our favorite law professor, Jonathan Turley, of George Washington University.

Welcome, Jonathan. Always good to have you.


HUME: Let's take a look just in no particular order here. First, Janice Brown, who was nominated by the president. A vote on her in the last session of Congress was blocked by a filibuster, in effect.

First of all, tell us who she is, what court she came from, if it is a court, and what we know about her in terms of whether this woman is — could be assessed as an extremist.

TURLEY: Well, I wouldn't call Janice Brown an extremist in the sense that...

HUME: First of all, who is she?

TURLEY: She's a California judge who has, I think, drawn the ire of some groups because she believes very strongly in property rights. And she may have a slightly libertarian streak. But she's not by any means this threat to the rule of law that people have made her out to be.

I'm actually a little bit mystified as to why Brown has attracted so much criticism. Unlike many nominees, she's...

HUME: Is she thought to be someone who might cast a deciding vote if she ever could to against Roe v. Wade — to reverse Roe v. Wade?

TURLEY: She is expected of having pro-life views and being very conservative on a number of issues, particularly when it comes to property rights, environmental laws, and those types of things.

HUME: Has she been very — has she been heavily controversial in California?

TURLEY: Well, I don't think she's been terribly controversial. The decisions that she has written, most of her decisions are not controversial.

She actually stands out on this list as one of two nominees that has actually thought very, very deeply about the philosophical basis of law. She incorporates it into her decisions.

HUME: Right.

TURLEY: And...

HUME: Let's go to another here, William — we don't have a lot of time, so let's go to William Pryor. We know him as what — he was the attorney general in Alabama, right?

TURLEY: That's right.

HUME: And what about him, and how does he fit in this category of sort of out of the mainstream characterization?

TURLEY: Well, I actually know Pryor. Back when we were — we both clerked on the 5th Circuit for different judges. And back then he was known as sharp as a whip.

We weren't close back then, but he was well known even then as being a real bright light. And I think he's gotten a raw deal, quite frankly.

He's very conservative, there's no question about it. But I think it was very telling that he believes very strongly that the Ten Commandments can be shown in a monument or in a display. And yet, when there was that confrontation with Chief Justice Moore in Alabama, he carried out his duties.

He prosecuted Moore, even though he agreed with Moore. And so with Pryor, I think that he's gotten a uniquely raw deal, because he's proven that even against his own views, he will carry out the law.

HUME: Which is part of what the job of an appellate judge is to do, correct? Which is, if the Supreme Court has spoken on an issue, it is the job of the appellate court to recognize that and not to try to make new law an issue.

TURLEY: I think that's right. And Pryor I don't think is being credit by the fact that he was tested under fire. He was an attorney general in Alabama who took an incredibly controversial position.

HUME: Priscilla Owen, she's a Texas judge, correct?

TURLEY: Right.

HUME: What about her? What do we know about her?

TURLEY: Well, Priscilla Owen, I think, is primarily in trouble because she was criticized in print by Alberto Gonzales, who accused her of judicial activism. They both served on the Texas Supreme Court together, and he went after her in a couple of opinions and actually called her an activist, said she was ignoring the law. And those words have been used as powerful ammunition against her.

HUME: Did he mean that she was a liberal activist or a conservative activist?

TUCKER: A conservative activist. Yes, she's quite conservative. And the groups are also...

HUME: Well, from what you know of the cases involved, the cases she's decided, the issue she had with Gonzales and the rest of it, were the views that she was espousing outside the mainstream?

TURLEY: Well, it depends on who you ask. My view is that she was interpreting things like the parental notification law in a way that was plausible. I don't agree with it. But she's not some wild-eyed extremist.

But I think she has the best ground for the Democrats to attack because they have this prior criticism from Gonzales, and she is very, very conservative. There's no question about that.

HUME: Terrence Boyle, he is another one of those who is facing — or can't seem to be brought to a vote. He was previously nominated, I believe, didn't get to a vote. What do we know about him?

TURLEY: Well, Boyle actually has been a judge for a long time. He's been a trial judge. And Boyle's problem is a mix.

Some people have accused him of being an ultra-conservative, but his main problem is that he's been reversed a number of times on what's called plain error. That's a very low standard for a judge to make. So when you're reversed on plain error, it tends to mark up your record.

HUME: So the suspicion is that he's simply not a very sharp judge.

TURLEY: That's right.

HUME: Well, that's a different matter, isn't it?

TURLEY: It is a very different matter. But with Boyle, there really is ground for some senators to say we don't like the cut of this guy's jib. He's just not up to the task.

HUME: Not to appellate court intellectual standards.

TURLEY: Right.

HUME: All right. One last quick — Jonathan, it appears we're out of time. We had more of these. We would like to have you back some time to discuss some more of them.

TURLEY: I would love it.

HUME: Thank you very much.

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