This is a partial transcript from "On the Record," January 9, 2006, that has been edited for clarity.
GRETA VAN SUSTEREN, HOST: Make no mistake about it, the confirmation hearings for Supreme Court nominee Samuel Alito are profoundly important to you and it's already shaping up to be a fiery debate.
(BEGIN VIDEO CLIP)
SEN. TED KENNEDY, D-MASS.: We now have the record of Judge Alito's 15 years on the bench and the benefit of some of his earlier writings that were not available 15 years ago and I regret to say that the record troubles me deeply.
(END VIDEO CLIP)
VAN SUSTEREN: Judge Alito quickly responded to his critics.
(BEGIN VIDEO CLIP)
SAMUEL ALITO, SUPREME COURT NOMINEE: Fifteen years ago when I was sworn in as a judge of the Court of Appeals I took an oath. I put my hand on the Bible and I swore that I would administer justice without respect to persons, that I would do equal right to the poor and to the rich and that I would carry out my duties under the Constitution and the laws of the United States.
(END VIDEO CLIP)
VAN SUSTEREN: Joining us live in Los Angeles is Susan Estrich, a USC law professor and former clerk to Justice Stephens. And, here in Washington, Viet Dinh, a Georgetown law professor and former clerk for Justice O'Connor.
Susan, most of these questions seem like inside baseball to most people watching. It doesn't seem to be particularly relevant to their lives. But if you're sitting out there watching those hearings tomorrow what's the question that really should matter to everybody?
SUSAN ESTRICH, USC LAW PROFESSOR: Well, it depends who you are. I mean a lot of people are sitting there saying who cares? And the reason people ought to care is because the Supreme Court right now is divided right down the middle 4-4.
There are a lot of issues that matter to people, whether it's issues of church and state and religion or the rights of criminals or how free a free press should be or the big ones we keep hearing about abortion, privacy, government power, presidential power and on virtually every one of these issues this man is going to cast the deciding vote so it matters.
VAN SUSTEREN: Viet, you clerked for Justice O'Connor, who Judge Alito may replace. Do you think she's watching these hearings?
VIET DINH, FMR. ASSISTANT ATTORNEY GENERAL: I think she's certainly following with great interest. I know she cares about the court significantly. And, it's interesting you bring up Justice O'Connor, who was widely lauded by both sides but especially by the Democratic activists and the leadership as being the perfect middle justice.
And yet if one goes through her record I can very much guarantee you, as Stuart Taylor (ph) did in a column this last week that people can distort her record as a racist, as a hyper conservative, out of the mainstream person.
The point is that any judge with any record deciding the cases according to the facts and the law will come out with results that will not satisfy half of the people. That's nature.
VAN SUSTEREN: Does that mean, Susan, that the Constitution is a little bit like art in the sense that everyone sees it a little differently?
ESTRICH: Well sure and that's right, so what you're looking for is patterns. I mean we can all nitpick a judge's record and you're going to see a lot of nitpickers this week and if all that happens is nitpicking, if all that goes on this week is somebody nitpicks one opinion and somebody nitpicks another opinion, then people will be right to scratch their heads and say I don't care.
The real action this week is going to be whether Sam Alito in any way, shape or form gives people, gives Democrats enough ammunition to justify a filibuster and he's got to do something affirmative to really give them that ammunition. It certainly didn't happen today.
VAN SUSTEREN: Viet, why does it seem that the Chief Justice John Roberts seemed to sort of, you know, go sailing through and no problem and this one seems to have so much tension? Is it because it's replacing the swing vote is that it?
DINH: Yes, part of that but then we are sitting on Monday morning as opposed to Saturday evening with respect to the chief justice confirmation. If you recall, as soon as he was announced a whole lot of people without any evidence came out swinging and decrying his nomination.
And only through the process of the confirmation hearing did the American people and Democratic Senators get affirmed of his commitment to the rule of law. And, I think Susan is exactly right that Judge Alito is not a person who is going to try to hit curve balls out of the ballpark.
He's a person who tries to hit the ball straight down the middle. He'll try to answer the questions singles and doubles and not make a grave error that people can call foul and start a filibuster.
VAN SUSTEREN: You know what, Susan, I'm interested in is what he said in his confirmation hearings for the U.S. Court of Appeals and if he kept good to those promises over the last ten or 12 or 14 years on the U.S. Court of Appeals because then I have more confidence in what he says this week he'll adhere to.
ESTRICH: But see he went through nothing for the Court of Appeals. When he came up for the Court of Appeals here he was this brilliant graduate of Yale Law School, former solicitor general's staff, former attorney general's staff.
You know he was a shoe-in in that sense and Court of Appeals judges, I've been through a million Court of Appeals hearings, and unless you're one of the ones they pick out, if you've got the kind of credentials Sam Alito has, nobody is going to challenge you.
This is a different kettle of fish for the Supreme Court and I think what he did today, which was really very smart frankly, was he distinguished himself. He distinguished the role of an attorney as an advocate and the role of a judge enforcing the rule of law.
And that's sort of a preview of what's to come because he's going to take those old memos he wrote in which he was an advocate and say, see that's when I was an advocate. Look at me as a judge.
VAN SUSTEREN: Now I'm a judge.
ESTRICH: I'll enforce the rule of law. That's who I am.
VAN SUSTEREN: All right, well the viewers need to watch this. It's profoundly important these hearings no matter which side you fall in this. Susan, Viet, thank you both.
ESTRICH: Thanks.
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