This is a rush transcript of "Special Report With Brit Hume" from November 16, 2007. This copy may not be in its final form and may be updated.


SEN. HILLARY CLINTON, D-N.Y.: And I understand very well that people are no t attacking me because I'm a woman. They're attacking me because I'm ahead.

CAMPBELL BROWN, CNN: What did you mean at Wellesley when you referred to the boys' club?

CLINTON: Campbell — well, it is clear from women's experiences that from time to time there may be some impediments.


BRET BAIER, GUEST HOST: Well, there is just one exchange from last night's Democratic presidential debate in Las Vegas. You see the frontrunner Hillary Clinton getting asked a question about whether she is playing the gender card. So after last debate where it was said she did so poorly, did she regain her footing?

Some analytical observations from Fred Barnes, executive editor of the Weekly Standard, Mort Kondracke, executive editor of Roll Call and syndicated columnist Charles Krauthammer — FOX News contributors, all. So, Fred. What was your take on the debate?

FRED BARNES, "WEEKLY STANDARD": Well, she did do better. It was like a batter who has been in a slump going 0-4 for a week and gets a couple of hits and she did. It was pretty good. But she had an easy time. The questions were easy, nothing about all these documents that are in the archives that she thinks it is up to the archivists to decided whether they come out or not, nothing about the issue of planted questions and look, we did, we just saw that bite and that was playing the gender card right there.

Mark Penn, her chief strategist, as Mort and I have heard him, he brags about it, you know, she's going to do so well among women, you know, they're all go going to vote for her because she's a woman. Twenty-five percent of Republican women. You remember that one, when Mark Penn was peddling that one?

But you know what I thought was unfair, or I could think of probably a similar word, were the boos in the audience, obviously from the Clinton people once or twice when Edwards said something critical of her and at least once when Obama did. And the boos worked. It seemed to rattle the other candidates.

KONDRACKE: The questioners did allow her opponents, in fact, invited her opponents to whack away at her and they started to do so. Obama tried it and Edwards tried it and said that she was part of the corrupt Washington conspiracy and so on, and she, I think, rather over the top said that he was slinging mud, and it brushed him back. He did not readily return to a vigorous attack style, and I thought, you know, of all of the candidates I thought Edwards did the worst, he's close to her in Iowa. I think that by sort of slinking away after she whacked him that he was the loser here.

BAIER: Charles, the thing that seemed to be getting traction for Obama and Edwards was this thought that Hillary Clinton is not fully honest. She can't answer a question completely ore definitively and yet last night, did she effectively deal with that and get away from that issue?

KRAUTHAMMER: She didn't have to, because Obama was given her question on the license for illegal aliens and he fumbled around as badly as she did, so it put her performance two weeks ago in relief and she was asked the question against and she answered last night as she should have in the first debate and said no.

She had a good night because she didn't lose, and if you're ahead and you hold your own, you're a winner. It was like when Reagan did badly against Mondale in the first debate and then in the second he held his own and he was a winner. He also got off the zinger about Mondale's age the same way that Clinton got off a zinger here in defending herself against the gender card charge.

I thought the loser was Edwards. I didn't actually see him slink away after the mud charge. I saw him pile on in an extraordinarily sleazy and slimy way. It was Kucinich of all people who pointed out after stepping off his UFO that a lot of the other candidates were going against stuff that they had voted against years ago.

Edwards voted in favor of the PATRIOT Act, in favor of the war, in favor of Yucca Mountain as a nuclear repository and now he's not only against all of this, he's passionately against them, accusing those who believe what he believed a few years ago of being a corrupt cynical and the tools of large rich interest of the kind I suppose who live in mansions, I suppose like him.

BARNES: Or hedge funds like he worked for.

BAIER: How does this translate, Mort, in Iowa where it appeared to be closing the gap, the latest polls appear to be slipping for Hillary.

MORT KONDRACKE, "ROLL CALL": Look, if we're right and Edwards the loser, the dynamics this sets up is what happens if the Edwards people start to get discouraged about his prospect and they think he can't win this election, where do they go, and do they go to Obama? Some of them undoubtedly will, probably the left/populist will go to the Obama, maybe some of the trial lawyer, establishment types will go to Clinton. I would think that the populists probably outnumber the trial numbers so that could help Obama actually beat Hillary in Iowa.

BARNES: I wonder whether people, average viewers that are looking at it look at it the way we do. I don't think the average person — in the first place, the average person probably wasn't watching. In the second place ...

KONDRACKE: Oh, that's for sure.

BARNES: Well, I don't know. I don't think they score it the way we do, looking for a winner and then this question Obama did badly and Hillary did well. I don't think they look at it that way. They form an impression an Hillary's impression was better but I thought Obama's was OK except for that one question.

BAIER: And listen to you guys.

KRAUTHAMMER: Only (inaudible) watched it all the way through.

BAIER: That's the last word.

When we are return with our panel, Rudy Giuliani makes his judicial pitch to the Federalist Society. Did he make any headway? And where were the other candidates? That's next.



RUDY GIULIANI, PRESIDENTIAL CANDIDATE: We're seeking to find judges who understand the very, very important concept that judges exist to interpret the law, not to invent the law. Justices like Justice Scalia, Justice Thomas, Justice Alito and Chief Justice Roberts. That would be my model.


BAIER: That's Rudy Giuliani today at the Federalist Society talking about the judges he would put on the bench. He was only one that spoke to that group. We're back with our panel now. Fred, how did he do? It is an important group to try to sway. You listened to the debate.

BARNES: I thought he did pretty well. This is something for someone who is liberal on social issues, particularly abortion, he has a way to get around that by saying although he is not explicit, look, I may be pro choice, but I'm going to nominate judges who aren't, and they are going to - and I think the implications is that even they may overturn Roe v. Wade. Now, I'm in favor of it, but I'm going to nominate judges who will. The problem is that the candidates, they don't know who they're going to appoint. Ronald Reagan said al this stuff, George Bush I said it.

All of them have been promising these conservatives and originalists and what happens? Ronald Reagan named Sandra Day O'Connor and Judge Anthony Kennedy, who are not conservatives and George Bush the First has given us David Souter. George Bush right now has given us two very conservative justices. Roberts and Alito. But then he wanted to name Harriet Miers, his legal counsel. So a lot depends on the legal circumstances they face when a vacancy comes.

BAIER: Charles, why do you think is the only one to go?

KRAUTHAMMER: Because he needed it. He is the social liberal and he had to actually show that by appointing judges he will not enact his philosophy on issues like abortion. Gay rights.

BAIER: But there were a lot of people could have benefited from that group.

KRAUTHAMMER: Not as much as he needed it. And I think he did really well. He touched all of the icons of the conservative pantheon, Ed Meese and Ted Olsen who introduced him, a conservative jurist, the dean of conservative jurists and of course Reagan had a great line that he quoted Reagan on. Reagan had said when he was governor that he had been accused by some of having a 19th century attitude to law and order and he said that was a grossly unfair charge. He had an 18th century attitude on law and order. Meaning the Constitution.

And what Rudy did was he gave a coherent speech on philosophy. He said there are originalists who believe in the Constitution as written and that's how they will interpret it and liberals who believe in the living constitution, i.e., needs to be reinterpreted as time progresses in every age, the way that any judge wants so it becomes arbitrary. He said I am an originalist, I will appoint a judge and he named all of the conservative justices and that does is it commits him.

It is not just an empty promise, if he becomes president and you are a conservative, here is a guy who has committed himself in public, he said Ted Olsen is the guy who will advise me and he is the guy all of us would rely on. I think he won over a crowd and I think he made a point that is really substantive.

KONDRACKE: Look, his record, however, is one of appointing people who are — who were liberal to moderate, and you know — well, that was in New York, OK.

KRAUTHAMMER: From a list draw up by Democrats.

KONDRACKE: That's what Ted Olsen says, that it was a list drawn up by — but he had a judicial list of his own, as I understand it. There is no question that there are judges who legislate from the bench and they take their whatever their opinions are and they try to write them into law. Originalists remind me of religious fundamentalists, if it ain't in the Bible, if it ain't in the Constitution, it doesn't exist, like the right of privacy. Can't find the right of privacy in the Constitution. Well, it's not written in black and white, right of privacy, but if we don't have a right of privacy in this country, given the advance of technology, of the ability to tap and listen and stuff like that, then where are we? Now, there needs to be a living constitution.

BARNES: We need a constitutional amendment that says we need a right to privacy not just a judge that says all of the sudden, after 200 years saying there is one in there if the emanations were found by the Supreme Court.

BAIER: He made points.

BARNES: I think he did but it didn't win the election for him.

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