Starr: Sotomayor's Words 'A Little Troubling'

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: For more on this, joining us live is Ken Starr, the dean of Pepperdine University law school and a judge of the United States court of appeals for the D.C. circuit. So he has been through some of these proceedings. Nice to see you, Ken.

KEN STARR, DEAN OF PEPPERDINE LAW SCHOOL: Good to see you, Greta. Thank you.

VAN SUSTEREN: Ken, how do we know if this is a good nominee or not?

STARR: Well, I think the hearings are going to be important, but above all, it's her record as a judge. It is important to explore these statements that she's made because some of the statements that she's made are troubling. But the key is, what was her record as a judge? And her record as a judge, from everything that I've seen, is a very fine record.

Full disclosure: She's been to our campus twice over the last couple of years, and she's worked very hard with incoming judicial law clerks. She's really very energetic, committed to the system. But I will say this. One of the most characteristics of a Justice is that she be humble, that she be modest in her approach to the Constitution. And that, I think, is what the confirmation hearings are really going to come down to.

VAN SUSTEREN: Now, you used the term "humble" in her approach to the Constitution. One of the words -- of course, now we seize upon anything that's said by anybody in terms of whether it's what the president said or anything she has said. But he used the term "empathy," that he wants a Justice with empathy. Is that something that -- I mean, how do you interpret that remark by him? And is that an important quality, do you think, for a Justice?

STARR: Well, it's an important quality for judges sitting in family court and the like. But my word, when we're talking about the interpretation of the Constitution of the United States, we don't want someone who has an attitude of harshness. But on the other hand, we don't want to have someone who's attitude is the plaintiff always wins or the defendant should always lose.

So evenhandedness, fairness, impartiality -- those are the enduring characteristics and qualities. But when it comes to interpreting that document, those 20 pages and then the amendments, we want someone, it seems to me, who is going to always be modest, always listening carefully to the lawyers, listening carefully to her colleagues, and so forth. And I have no reason to believe that Justice, if she is confirmed, Sotomayor will not be that kind of judge. But I think that's what the hearings are (INAUDIBLE) What is your philosophy and world view, but are you willing really carefully to listen, to evaluate and to assess based upon all of the materials that come before you with an attitude, I may not have all the answers?

VAN SUSTEREN: You know, we see the -- we're going to see the hearings. They're going to be televised. Or at least, I assume they are. But we don't see the behind-the-scenes preparation. What do you anticipate is, you know, the steps she's going to take to prepare herself? How do they do that?

STARR: Well, it' relentless preparation. It's like preparing for a case. And of course, Judge Sotomayor has been a prosecutor. She's been a private practitioner. She's been a district court judge. So she knows what this is all about. You do an extraordinary amount of homework because you're going to be hit, obviously, about your own record, the statements that you've made extrajudicially. So that you have to prepare for. You’re on defense there.

But there are also going to be opportunities for her to set forth her vision of what her approach to the Constitution is, and that's where it really needs to come from her, as well as then showing, which she'll be able to do, I think, easily, that she's very much in command of the law, that she's very well informed in the law and steeped in the law.

VAN SUSTEREN: Do you think there'll be mock proceedings behind the scenes? I mean, is that the way the preparation is done by these judges or maybe Justices, whatever, if she's elevated?

STARR: Oh, absolutely. You're going to have murder boards or moot courts, as we call them, with roles being played. So here's someone playing Senator [Jeff] Sessions, really looking into what kinds of questions he's asked in the past. And of course, the record itself is going to give rise to a number of questions, such as, What did you mean when you said that a Latin -- a Latina will look at the world differently, the judicial world differently? And so that's where, I think, the hard preparation will come.

VAN SUSTEREN: You know, it's interesting. She was appointed to the trial court bench by President Bush 1, a Republican. President Clinton, a Democrat, elevated her to the 2nd circuit, the appellate. And now we have a Democratic president perhaps elevating her to the Supreme Court. Is the criteria or the scrutiny different for the federal appeals court judge, or should it be, from the Supreme Court?

STARR: Oh, absolutely. And here I would say that the stakes are so high at the Supreme Court of the United States that it is very, very important to have as much information as we can about the way the person views the Constitution and the constitutional role because court of appeals judges are really bound by what the Supreme Court says.

And I don't think there's been any suggestion that as a judge and as a very able judge, Judge Sotomayor has not been faithful and obedient to the law as articulated by the Supreme Court. but it's a different ballgame when you're one of the nine and perhaps one of the five Justices who's deciding the kinds of issues that affect the culture, as well as the law of the country.

VAN SUSTEREN: How would you answer this question, or how -- how do you think she will and -- she's quoted as saying the court of appeals is where policy is made.

STARR: Yes, I think that's, to be honest, a little troubling, so that needs elaboration because I would say, having been on the court of appeals, that, no, that's not really true. It's not your job at all to make policy. It rather is for the Congress or for the governor or the legislature to make policy and for you to interpret the law as given to you.

VAN SUSTEREN: Ken, thank you.

STARR: My pleasure, Greta.

VAN SUSTEREN: Thanks, Ken.

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