Rove's Report Card: Supreme Court Nominee Sotomayor

This is a rush transcript from "On the Record," May 26, 2009. This copy may not be in its final form and may be updated.

GRETA VAN SUSTEREN, FOX NEWS HOST: Well, now the debate begins. President Obama says Judge Sonia Sotomayor is the one, the one he says he wants on the Supreme Court. So what do we know about Judge Sotomayor? And how big a fight will this appointment be on Capitol Hill? Moments ago, Karl Rove went "On the Record."

(BEGIN VIDEOTAPE)

VAN SUSTEREN: Karl, what do you make of this choice, this -- the nominee by President Obama for the Supreme Court?

KARL ROVE, FORMER BUSH WHITE HOUSE ADVISER, FOX CONTRIBUTOR: Well, he's going to get himself a judge at the end of this who is very liberal, has an expansive view of the judiciary and has a compelling personal story. In a way, both sides, Democrats and Republicans, are going to get what they want. He gets a liberal judge, gets to appeal to Latinos and women, which they expressed some concern about the criticism that they've received from Latino groups. Republicans get a chance to talk about the proper role of the judiciary.

And at the end of the day, the drama will play out, probably complicated, up and down, around, about, but at the end of the day, President Obama's going to get his Supreme Court nominee.

VAN SUSTEREN: Not to take away from her accomplishments and not to sort of poison the process, but to what extent, the fact that she is Hispanic, does this become -- you know, is this a partial political decision or a total political decision?

ROVE: Well, they clearly said that they were sensitive to the criticism that they've received from Hispanic groups for the failure of the Obama administration to make more Latino appointments, so they not only get to appoint a woman but a Latino woman. And this is obviously a political advantage to them. They're going out of their way to emphasize that.

What's interesting to me, though, is the question of how effective she's going to be on the Supreme Court. We know that David Souter was a cipher. We know from her record on the 2nd court of appeals that she's not a particularly effective colleague.

I first got wind of this when Sam Alito, who was her colleague on the court, while we were reviewing his record, it -- you know, people who were familiar with the workings of the court said that she was combative, opinionated, argumentative, and as a result, was not able to sort of help create a consensus opinion on important issues.

VAN SUSTEREN: Is it consensus opinion we're looking for, or do we want some independent thought? Do we also -- I mean, in an ideal situation, do we want -- also want someone who's, you know -- you know, strong in his own or -- his own convictions as to how the law should be properly applied?

ROVE: Well, you know, you do want a mixture of backgrounds and personalities. But the one thing that if you're Obama and you want to change -- you want to -- you want to have leaders in the Court, not just a dependable liberal vote like Souter, but you want somebody whose intellectual argument and personal style and consensus building can change a 5-4 decision one way to a 5-4 decision the other way. And she has no record of that on the court.

You need only look at the recent decision, for example, in the case involving the New Haven firefighters, where her opinion was so over the top that she drew pointed criticism in an opinion by another justice who agreed with her on the finding but was very critical of the way in which she arrived at it. That's highly unusual, as you know from your experience, for one appellate judge to criticize another appellate judge in dueling opinions when they're both on the same side.

VAN SUSTEREN: What did Justice Alito say about working with her?

ROVE: Well, I'm not going to comment on what he said about her because I didn't hear him say anything specifically about her. But when I was talking to people about the 2nd court of appeals -- for example, look, as you know, justices circulate opinions and -- to their colleagues to get their feedback and to act as, you know, sort of a prompt for discussions when they meet in chambers. Well -- in conference, excuse me.

What she would do is she would mark them up like she was your English school teacher and -- with your typos and misspellings and other words that she wanted to have changed and send it back to her colleagues. Not exactly the best way to ingratiate yourself with your colleagues. Rather than say, Oh, I thought you had an interesting legal argument here and I'd like to talk to you more about this here, she was acting like sort of a schoolmarm.

We've gotten a taste of this in the clips that we've seen, for example, at the Duke law conference, where she says, We write policy. We're not supposed to say it, but we do write law, you know, which is not exactly how the American people view what judges ought to be about. But you get a sense of the sort of brashness that sometimes in the close quarters of a conference can rub other justices the wrong way.

VAN SUSTEREN: You make me nervous about the times I correct people for grammatical errors. I'm not going to do it anymore.

ROVE: Well, you...

VAN SUSTEREN: I got to take that as...

ROVE: Well, no, no. You should. But if they're colleagues, if they're equals, I mean, be very careful about getting out your red pen and marking it up like you're their English teacher.

(END VIDEOTAPE)

VAN SUSTEREN: Next, more with Karl Rove. Here's a question. Who gets the awkward job of calling potential nominees for the Supreme Court and telling them they didn't get the job? Karl's going to tell you.

And later, like TV, you never know -- or live TV, I should say -- you never know what will happen. And wait until you see what happened during a Cleveland, Ohio, local news show, starring the most excited reporter in history, an NBA star, LeBron James. There is no doubt you will love this.

(COMMERCIAL BREAK)

VAN SUSTEREN: More with Karl Rove on the president's nomination of Judge Sonia Sotomayor to the United States Supreme Court.

(BEGIN VIDEOTAPE)

VAN SUSTEREN: President Bush 41 appointed her. How does that sort of play (INAUDIBLE) Is that sort of -- you know, I imagine that that will be - - the Democrats on the Judiciary Committee will certainly use that, but how -- you know, as a weapon to help them. But then, of course, President Clinton elevated her. How does this work out politically?

ROVE: Well, I'd want to take a look at the original appointment. After all, she's from New York. There was a Democrat senator and a Republican senator at the time of her original appointment in New York. The senators used to have an agreement, I believe, where they sort of took -- they took turns of recommending somebody for a district bench, so that if there was a Republican president, the Democrat senator got to recommend some and the Republican senator got to recommend some for the federal bench, or a trade-off. It might have been two of the -- if you were -- if you -- if you were the party of the president, you got to appoint two, and then -- and then the third choice went to the person from the minority party, the out-of-power party. But I'd have to see a little bit more before I put a lot into that.

But look, (INAUDIBLE) here. President Bush appointed -- President Bush 41 appointed David Souter, who turned out to be reliably liberal. I doubt that another future Republican president would say, I want to appoint somebody just like David Souter simply because President Bush 41 appointed him. I mean, she has compiled a dogmatically liberal record on the court, and as you can see from her public statements, there's a reason why. She is a liberal. She's self-described herself as that before she even went on the bench.

VAN SUSTEREN: You know, we watch this from outside. You've been on the inside. How -- I mean, I realize that the workings of the President Obama administration may be different from the President Bush 43 administration. But how does it happen? I mean, a notice comes from the Supreme Court there's a vacancy. Is there already a list? (INAUDIBLE) thought about (INAUDIBLE) I mean, give me some of the inner workings of how a nominee -- not necessarily the deliberations, but how's this done mechanically?

ROVE: Well, look, you're right, there are differences. The Obama administration came in roughly 150 days ago, so I suspect it was not the process that we set in place over the course of the first year, in which, literally, there was a group, a five-person group -- counsel's office, vice president's office, senior aides to the president, and the Justice Department -- who had big binders on each prospective Supreme Court nominee, and so that we had a lot of information.

We looked at all their public documents, all their public records, so that when we -- when it came time to fill a vacancy, there were private documents we had to ask for, like the ability to look at their tax returns and their financial statements, but we had big binders of material that we could read about prospective nominees well in advance of the vacancy. It was enormously helpful. My suspicion is...

VAN SUSTEREN: I assume -- yes, go ahead. I'm sorry.

ROVE: My suspicion is that this White House didn't have the exhaustive research on their prospects that we had on ours simply because they've only been there for 150 days.

VAN SUSTEREN: Well, it's going to be a lightning rod, I assume, the comment that she's -- says -- made in 2005, where she said, in part, Court of appeals is where policy is made. That's going to light some people on fire. I assume that that -- that would be something, in all likelihood, they've vetted and they're ready for that, right? I mean, is that your guess?

ROVE: Yes. That one had already appeared on television during the process of -- of speculation about who the nominee might be. A couple of weeks ago, I think I saw it for the first time.

But look, they rushed this thing, so they -- I suspect that they didn't have and may not have had the quote where she said, you know, in essence, white judges, white male judges can't -- can't -- can't provide the same quality decision making that female judges, particularly female judges who are minorities can.

I mean, that's a pretty incendiary comment. My suspicion is they rushed this thing so quickly that they weren't able to collect all of her public statements and carefully vet them. I certainly didn't hear anybody out of the White House earlier (INAUDIBLE) Oh, yes, well, knew about that and don't think that that's -- you know, that that -- that that's something that ought to be held against her.

But you know, the interesting thing is that you go from a process in which there's a closely held group of people -- maybe 5, 10, 15 people, most at Justice and the White House -- who are looking at, are preparing or collecting these documents. Then suddenly, the moment after he named her this morning at 10:15, were literally 10,000 people were examining her record. So if they didn't do a good job of the vetting, we're going to have more surprises like this in the weeks ahead.

VAN SUSTEREN: Based on what we know now, what's out in the public domain right now, and based on the numbers in the United States Senate, do you have any sense -- do you have any doubt whether or not she's going to be confirmed? I realize there'll be a food fight and there'll be, you know, a lot of argument about things she's said and a dissection of her opinions and everything. But do you have -- do you have -- is there any part of -- any doubt that she's going to be the next Supreme Court Justice?

ROVE: A vote on the floor is going to -- is going to confirm her. There's no ifs, ands or buts about that. The question would be in the Judiciary Committee. And if things -- if there are a lot more bad things, then there is a problem because rule number 4 of the Senate Judiciary Committee specifies that any judicial nominee can be sent to the floor with a vote of 10 members or more, and of those 10 members, at least one has to be from the minority. So they're going to have to have at least one Republican on the committee to vote for her to send her to the floor.

Now, beforehand, you could almost count on Arlen Specter, who was the ranking Republican on the Senate Judiciary Committee, to have been that one vote. Now that he is a Democrat, there's no absolute guarantee that there won't be unanimity among the Republicans, particularly if there's more that comes out about her that's troubling. But he has to get at least one Republican to vote for her in the committee in order to have her brought to the floor.

And I'd remind your listeners, President Obama has really set by his own actions in the United States Senate, you know, pretty wide-ranging rules for this. He voted against Justice Roberts, Chief Justice Roberts, after declaring him well qualified and lauding his temperament. He not only voted against Sam Alito for Associate Justice after, again, saying that he was qualified and lauding his judicial temperament, his experience and his training, he led -- he also led the filibuster against Alito.

So if you vote against somebody after saying they're qualified and you lead a filibuster against somebody or vote for a filibuster against somebody, despite the fact you find them qualified, you're basically saying you can do anything you want to somebody that I nominate, just as I tried to do anything to the nominees of my predecessor when I was in the Senate.

VAN SUSTEREN: All right, here's a question out of left field. President Obama, no doubt, interviewed other people. We heard that Governor Granholm might have been one, maybe Elena Kagan, who is the solicitor general of the United States. Who makes those calls to say, You didn't get it?

ROVE: Well, it -- either the White House counsel or the attorney general or the head of White House personnel. My suspicion is it was probably Gregory Craig, the head of White House -- the White House counsel's office, who made these calls. But you don't expect the president to give the disappointing news, but you want it done at a relatively high level.

(END VIDEOTAPE)

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