Supreme Showdown: Former Judge Charles Pickering Weighs In

This is a partial transcript from "Hannity & Colmes," July 11, 2005, that has been edited for clarity.

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SEAN HANNITY, CO-HOST:Things are beginning to heat up over the vacancy on the Supreme Court. Democrats, led by Senator Chuck Schumer, are demanding that the president consult with them before a successor to Sandra Day O'Connor is announced, something that the White House says it has done and will do again tomorrow when he meets with the Senate leadership of both parties.

But at the same time, the American people appear to be distrustful of the Democrats and their intentions. Now, look at this: According to this Gallup poll taken last month, 58 percent of you, the American people, believe that Senate Democrats will try to block the president's nominee for, "inappropriate political reasons."

Joining us now is a man who knows something about that, former federal Judge Charles Pickering.

Judge, thanks for being with us. I went back and again...

CHARLES PICKERING, FORMER FEDERAL JUDGE: Hi, Sean.

HANNITY: Thank you for being back. I went back, and I looked at the comments about you. And you, for example, were called extreme by Ted Kennedy. He said you failed to follow the rule of law. Chuck Schumer said that you are Exhibit A for the White House arrogance.

John Kerry said it's outrageous that, after laying a wreath on Martin Luther King's grave that George Bush would unilaterally install a man on the federal appeals court who advocated tirelessly on behalf of a cross- burner. You know what this -- how politicizing the bench, how personal it can be. So would you expect anything less in this appointment?

PICKERING: Sean, it doesn't matter who the president nominates, immediately you'll hear from the far-left groups that this nominee is extreme, out of the mainstream of American thought. And when you analyze the issues, these groups are the ones that are way, way out of the mainstream of American thought. But they will label whomever the president nominates as being an extremist out of the mainstream.

HANNITY: They did that unfairly to you. And they purposefully distorted your record, especially as it related to race matters. And you've been on this program before. And you've explained that to this audience.

But one of the things, I guess, we ought to be concerned about is Arlen Specter almost begging Justice O'Connor not to retire. "What if we make you chief justice?" It seems like Republicans don't have the backbone for a fight here. Do you read it that way?

PICKERING: Well, I think the president will do what he has said he will do. He's always consistently said that he would name someone who will interpret the law and not make law.

He wants someone who will interpret the Constitution according to its original meaning. And he's named examples of who he thought did a good job. The president has not backed down so far, and I do not anticipate that he will back down now.

HANNITY: Why would Arlen Specter feel the need to go back and almost beg Justice O'Connor to, quote, "see if she would take the position of chief justice"? Why wouldn't he have faith in the president's selection, and go to bat for the president's selection, and not give into this extremist movement of the Democratic Party? They're the ones who have filibustered judges for the first time in 214 years.

PICKERING: You're absolutely correct. I've heard Democrats say that it was not unprecedented. It absolutely was unprecedented. This was the first time any nominee with the majority support had ever been filibustered. Senator Specter, as you -- if you've watched his career, he likes to try to build consensus. And what he's saying is consistent with his record.

HANNITY: Well, look at President Clinton's choice of Ruth Bader Ginsburg. Former general counsel of the ACLU. Republicans didn't agree with her ideology, nor did they even make it an issue in the hearings for the most part. And my question is -- there is no reciprocity here on the Democratic side. They'll call any -- unless you nominate Ted Kennedy, I assume nobody will be good enough for a lot of these extremists, like Chuck Schumer?

PICKERING: Well, Sean, two examples. Both in Judge Ginsburg and also in Justice Breyer, both of them had extremely liberal records, but the Republicans did not filibuster them. In fact, most of the Republicans voted for them.

And then additionally, the two nominees to the Ninth Circuit in California, when some of the Republicans wanted to filibuster, Senator Lott, who was then majority leader, said no. It would be inappropriate to filibuster a judicial nominee.

And 20 Republicans voted with the Democrats to stop the filibuster before it ever got started, and then turned around and voted against these nominees. They thought they were not good nominees, but they thought the filibuster was inappropriate. So the Republicans have never done this.

ALAN COLMES, CO-HOST: Hey, Judge Pickering, it's Alan Colmes.

PICKERING: Hey, Alan, how are you?

COLMES: Welcome back to the show. The real bashing is I'm hearing over and over again Republicans accuse Democrats of bashing before a nominee has even been picked. You don't know for sure. I mean, certainly there might be some objection depending upon who that nominee is. We don't know who it is yet.

PICKERING: Exactly, Alan. That's the point I'm making. They started bashing before they were ever named. If you've been watching the news -- and I'm sure that you are, that you keep up with it -- they've been bashing the nominee in advance.

COLMES: Who are they bashing?

PICKERING: They've set up their war rooms. They're issuing statements that they're going to attack, that they're going to monitor. And they've given clear indications that they're getting ready for war.

COLMES: Well, of course, they're going to monitor. In face, last time around, we had Orrin Hatch saying things, "You've got to question the nominee." He had Republicans who are now in the majority saying, "We're going to ask questions." They asked questions of Ginsburg, who, by the way, was a moderate when she was chosen. And she had a very moderate record as a judge, chosen in consultation between Orrin Hatch and President Clinton.

PICKERING: I think Orrin Hatch did say that President Clinton consulted him. The president, in his book, didn't indicate anything about that, indicating that that was really not the deciding factor in his selection of these.

But I differ with you on the background. Justice Ginsburg is a fine individual and a very capable jurist, but she's always been liberal and always had a liberal voting record. To say she had a moderate record I think is just -- I disagree with you on that one.

COLMES: Well, we're probably going to get a conservative. And liberals know that. The question is, do we get a conservative who isn't extremist or someone who's a mainstream conservative? Who would you recommend?

PICKERING: Alan, you know, the president will have plenty of advice. He doesn't need my advice on that area.

COLMES: Oh, sure, he does.

PICKERING: And you know, abortion is the issue that drives this. And it can be a conservative, but if it's someone, a conservative that they think on the extreme fringes of abortion, that is, partial birth abortion and on abortion without notification, or parental consent, those areas, you'll see a fight from the left.

Now, if it's someone that they think will vote with them on abortion, I don't care how conservative he is on the others, you won't have that big of a fight. But on the abortion issue...

COLMES: But we've already heard that the left -- we've already heard, Judge, that the right is fixing for a fight if someone like Alberto Gonzales, who is more moderate on abortion, is chosen, we're hearing that the right may object. Would you support that?

PICKERING: Well, those on the right, you have heard some that said that they would prefer someone else besides Judge Gonzales. When the president asked that the debate be conducted in a dignified manner, you've seen a backing off of that. So, you know, I don't know whether the president is going to nominate Judge Gonzales or nominate someone else.

COLMES: Would you support Gonzales? Would you support someone like that, who is unclear, in terms of whether he would vote to overturn Roe vs. Wade?

PICKERING: I would feel strongly that whomever the president nominates that I will support, Alan. That's my view at this time. I don't know who it is. But I just don't believe that the president will nominate anyone that I would not be supportive of.

COLMES: So you could support Gonzales, if that's the choice?

PICKERING: You know, I think that, whomever the president nominates, if Judge Gonzales is the one he picks, I would think Judge Gonzales should be confirmed.

COLMES: So it doesn't really matter -- abortion could go either way, depending upon who the nominee is?

PICKERING: Well, Judge Gonzales' record -- he has not been on a federal appellate court. He was on the Texas State Supreme Court. And I'm not sure that you can say from what you read as to what his position is. He was bound, just like I was bound as a district judge, to follow Supreme Court precedent.

HANNITY: Thank you, Judge Pickering. Appreciate your time tonight. Thanks for being with us.

HANNITY: Thank you.

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