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FOX News Channel "On The Record" - Transcripts


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VAN SUSTEREN: Senator, nice to see you, sir.

SEN. JON KYL, R - ARIZ.: Thank you, Greta. Good to be with you.

VAN SUSTEREN: All right, last time Elena Kagan was before the Senate, you voted yes to confirm her for the solicitor general's job. She's now up for the United States Supreme Court. What are you going to look for this time? What could possibly change your mind or what reinforces your earlier decision that she's a qualified candidate?

KYL: First, I made it clear then that it's one thing to confirm someone for a temporary job, maybe up to four years or so as solicitor general, quite another to give someone a lifetime appointment to the highest court in the land. And she is quite young for this kind of job at age 49, almost 50. She could have decades on the Court. So we will need to look into her record more thoroughly than I think we did for solicitor general. And the fact that she hasn't been a judge means that we don't have clues about how she will act in a judicial setting. And that's something we'll have to make up for by inquiry into other areas.

VAN SUSTEREN: Could it be a plus -- not in terms of whether there's a track record for you to make your decision, but could it be a plus that we have -- that someone's on the Court who doesn't have a judicial background, that has a different background?

KYL: Yes. As a matter of fact, Justice Rehnquist I think is the last to reach the Court without any judicial experience. And I think that having some judges without judicial experience is not bad thing, particularly if they have something else to make up for. But it makes our job a little more difficult as senators because we don't have an idea then as to how she will react as a judge, as we do of somebody who's already served in that capacity.

VAN SUSTEREN: Well, he may want a do-over on something. In about 1995, she wrote an article in which she basically was critical of the confirmation process, saying senators really didn't get answers, really didn't get information about what the candidates would like (ph) to be. I assume she'd like a do-over on that. Maybe not.

But I'm curious. Are you going to be asking her or even billing her on the commerce clause? Because that is the health care legislation that's going to -- it's going to bubble up to the United States Supreme Court. How one -- how one perceives the commerce clause will make a big difference.

KYL: First, I think she's almost done a do-over on that statement back 15 years ago. More recently, she has said she thinks she got it a little wrong then and that it's more difficult to inquire into a Justice's points of view to discern how they might rule on issues. She doesn't think it's quite as good an idea now to do that. And I, frankly, happen to agree with her.

For example, on the commerce clause, I can inquire and probably will about general views on the commerce clause, but she's going to be very careful. Given the fact that this case might come before her on commerce clause grounds, the United -- Citizens United case, for example, she's going to be careful not to give any clues as to how she might decide that case. And she shouldn't. She hasn't heard the case yet. She doesn't know all of the facts and she hasn't researched all of the law. So it's unfair for us to ask a prospective Justice how they might rule on a case. And if that's the case, then it's also somewhat unfair to ask all the questions that get right up to that point but don't really ask the final question, So how would you rule? It's a very difficult proposition.

VAN SUSTEREN: Are you not curious, though? Because, I mean, just in the health care legislation, that fight, the case down in Florida, the big question is if you have a broad reading of the commerce clause, then it's pretty clear the health care legislation is constitutional. If you have a very narrow view of the commerce clause, then it's likely you're going to say it's unconstitutional. So if I were sitting there, trying to decide whether, you know, a Justice is someone that I might want, I would want to know that issue.

KYL: I misspoke. I was thinking of another case that she might be dealing with, the Citizens United case. But no, you're absolutely right. How the Court rules on the health care legislation will depend on how broad or how constricted they view that phrase. She knows that. She knows all eyes are going to be on that, and she'll probably give some platitude about, you know, It has a certain kind of meaning, but I'm not going to tell you how I might rule in a case like the health care legislation. And I think she shouldn't tell us that.

She needs to -- and here's my point, Greta. I don't want a Justice who goes into the Court with an idea of how she wants to rule in certain cases, with a predisposed notion of how justice should come out. I want her to read each case based on the facts and on the law and decide it. And as Justice Roberts said, if the law's on the side of the big guy, the big guy wins. If it's on the side of the little guy, the little guy wins.

Now, she has said some things in connection with her clerkship with Justice Thurgood Marshall on the Court that could lead one to believe that she has a standard somewhat similar to the Justice Sotomayor language about empathy for the downtrodden and the disadvantaged and that a Justice's job is to try to protect them. That we will want to inquire about because, obviously, you want justice for all, and that may or may not mean protecting someone who is disadvantaged.


VAN SUSTEREN: Republican senator Jeff Sessions is the ranking member on the Senate Judiciary Committee. He went "On the Record."


VAN SUSTEREN: Senator, nice to see you, sir.

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