[Aired May 9, 2002]

TUCKER CARLSON, CO-HOST: Good evening and welcome to Crossfire. We are coming to you, as always, live from the George Washington University here in downtown Washington, D.C.

Coming up, the state of American television, 40-plus years after Newton Minnow (ph) famously dubbed it a vast wasteland, some think it has only gotten worse. Others say it is simply more responsive to the market. TV -- impossibly vulgar or pure democracy? That is our debate later in the show.

But first, an angry George W. Bush stormed Capitol Hill today, outraged over what he says is the Senate's snail-like pace in confirming his judicial nominees. Of his first 11 nominees for top appeals courts, seen in this picture, only three have been confirmed. Senate Democrats say they are confirming judges faster than Republicans ran the place and that the Senate won't be a rubber stamp for any president. After meeting with Republican senators on the judiciary committee this afternoon, Bush slammed Democrats for playing what he called raw politics. Let's take up the issue with our first guest in the crossfire...

(BEGIN VIDEO CLIP)

BUSH: These are well-qualified -- you know, they have relied upon the American Bar Association in the past. These nominees have been given well qualified or qualified ratings. Yes, I think it's raw politics. I think it is bad for the country.

(END VIDEO CLIP)

CARLSON: And now we are ready for our guest. Republican Senator Jeff Sessions of Alabama, a member of the judiciary committee in the United States Senate. Please welcome him.

SEN. JEFF SESSIONS (R), ALABAMA: Hey, Paul. Good to see you. Tucker. Thank you.

PAUL BEGALA, CO-HOST: Senator Sessions, thank you for taking the time to join us. I don't want to get too deep into statistics, but this is a part about statistics, so let me put a few up on this big board here, and let the folks at home see them as well.

The number of judges who have been confirmed by your colleagues in the United States Senate, now run by the Democrats, far exceeds the number that were confirmed by your colleagues in the Republican party when President Clinton was president. Fifty-six Republican nominated judge for President Bush have been confirmed by the current senate. In a similar time period only 36 confirmed when your party ran the senate. What in the world is our president whining about?

SESSIONS: Well, a lot of reasons for that. Mainly there were a bunch of resignations after the Republicans -- after President Clinton left office. It was down to 67 vacancies when President Clinton left office, with only 41 nominees he submitted to the Senate.

During that time, a number of vacancies have occurred, and some of the judges have moved but we have, as a percentage basis, a very slow movement, and we have a lot of concern because the Democrats have flat out stated they want to change the ground rules, they want to consider ideology, they want to put the burden on the nominee himself or herself to be confirmed. Those are changes that we think indicate a desire to slow down the process. And that's what has been happening, particularly with the first group of highly qualified nominees the president submitted.

BEGALA: While there may have been a few retirements, the vacancies were in fact created because your colleagues refused to nominate -- or rather to confirm, qualified nominees under President Bush. And in fact...

SESSIONS: Let me say this about that. When President Bush left office, he had -- I forgot -- more vacancies than when President Clinton left office. In other words, the Democrats, when they controlled the Senate, left President Bush with more unfilled vacancies than when Senator Hatch finished his tenure as chairman of the judiciary.

BEGALA: In fact, at a time when there were 103 vacancies, this is what Senator Hatch had to say about vacancies -- and there were 103, which is more than we have today -- but Bill Clinton was nominating judges.

And Orrin Hatch, who is the leading senator on the judiciary committee in your party, said this. "The claim that there is a vacancy crisis in the federal courts is simply wrong. Using the Clinton administration's own standards the federal judiciary is currently at virtual full employment. This is when we had more vacancies, so this is just a matter of convenience and ideology.

SESSIONS: No, the numbers he was talking about were the 60s. When judgeship numbers were in 60s, President Clinton said that is about full employment because it takes about that much time to get a judge confirmed.

We're now at about 90 vacancies. So we have a good many more, and we had the eight sterling nominees for the circuit courts have even had a hearing in one year to date.

CARLSON: Now Senator Sessions, it's obvious to you, to me, I think probably even to Paul, the Democrats are in fact creating a bottleneck in the Senate over the president's nominees and they are doing so for ideological reasons. That's clear. They have almost said that.

My question to you is, why is that wrong for the United States Senate, where ideology is debated every day, to take a hard look at a nominee for a lifetime post and argue about it?

SESSIONS: Well, you can do that, and the big complaint the president has is that we're not even calling these nominees up for a hearing so they can be engaged on the issues. Many of those nominees received a unanimously high rating by the American Bar Association.

These are people who have in the mainstream of American law. They believe in judicial restraint, so the American people ought not to be afraid of Bush nominees. They are not going to abuse the power in office to carry out a political agenda.

CARLSON: Well, I agree, they are in the mainstream, but a lot of Democrats in Senate, as you know, are not in the mainstream. A lot of them are in the pocket -- I hate to say it -- but, of the abortion industry. And they...

SESSIONS: Well, they want to have the courts further their political agenda.

CARLSON: I think that's absolutely right, but what is odd about that? I mean, this is politics, so if you are stridently pro-choice, why wouldn't you want to block a judge who was stridently pro-life? SESSIONS: Well, I would just say this. I think that we'll continue to see a slowdown until the American people speak to the Congress and say they want their judges moved forward, and they do not want good and decent and highly qualified judges held up for political reasons.

It is a political process. Nothing is perfect. Some good judges under Clinton probably did not get confirmed that should have been confirmed. Some probably got confirmed that should not have.

Nothing is perfect, but I believe this system, as it is being operated now, has ratcheted up the pressure in an unusual and unprecedented degree against Bush nominees.

BEGALA: Let me actually go to another one of your colleagues, Senator Edward Kennedy of Massachusetts, who is now working with -- I believe his ninth president in the United States Senate. He has seen them come and go. He commented on this after the president spoke out. Why don't you take a look and then ask for reaction.

(BEGIN VIDEO CLIP)

SEN. EDWARD KENNEDY (D), MASSACHUSETTS: I can only see Republican complaints as an effort to bully Senate Democrats into rubber stamping their right-wing judicial nominees. Republicans don't understand that the issues at stake here go far beyond partisan games. This debate is about lifetime appointments to the courts that decide cases that shape the lives of all American people.

(END VIDEO CLIP)

BEGALA: Now Senator sessions, President Bush is asking your colleagues to confirm people for lifetime jobs when, unlike most of his predecessors, he got fewer votes than his opponent did.

The legitimacy of the judges, you well know as a member of the judiciary committee, derives from the fact he or she is nominated by a president who got most votes, and therefore senators often will defer and say, well, we knew what we were getting when we voted for that candidate but we didn't vote for President Bush, and therefore isn't there a special problem with legitimacy with the president?

SESSIONS: I don't think so. I don't think there is a legitimacy problem at all, and when Clinton was getting his judges through, he got 377, only one voted down. When he got his judges through, we had as many as 55 Republican senators.

They are saying well, there's 50/50 in the Senate, so now we should assert ourselves more. Republicans had as many as 55 and we are running his nominees through on a regular basis.

BEGALA: With all due respect, senator -- you are a fine senator -- that is revisionist history.

SESSIONS: No, it is not. BEGALA: I worked for President Clinton at the time. We couldn't even get a hearing, much less a vote, on 22 out of 24 of our appellate courts, one step below the supreme court nominees, not even a hearing, much less a vote.

The Democrats at least, under Senator Leahy, are calling up judges and having votes. They voted down Judge Pickering, which I know Republicans were angry about, but that is the Democratic system isn't it?

SESSIONS: Well, it's certainly a Democratic system, and the Senate has every right to vote the way they choose to vote, but what was done to Judge Pickering was not right. This is one of the finest, most decent men to come before the Senate. He should have been confirmed, and it did cause a lot of us concern about the tactics that we would be looking at.

CARLSON: Well, I can see why. It was revolting, and we wanted to ask some of your Democratic colleagues to defend it tonight -- not that they could, but not one took us up on our offer.

We called almost every Democrat on the judiciary committee, Durbin, Schumer, Cantwell, Kennedy, Feinstein, Joe Biden, Feingold, Leahy, Reed. We even called Joe Biden. Now these are people who have been on CROSSFIRE a lot, expect to see them the future, and they are all strong debaters. They are obviously afraid.

You know them well. How afraid are they?

SESSIONS: I don't think they feel real good about this. Maybe there was some thought -- I think a lot of Democrats thought their nominees had been mistreated and I don't think the facts show that.

Under Senator Hatch's leadership he confirmed 377, one was voted down, there was only 41 left pending when President Clinton left office that had been nominated and not confirmed. When President Bush left office -- former President Bush -- there were 54 pending.

So his nominees were treated fairly. Sure, some of them took some shots. I voted against a few, but I voted for 95 percent. But most of his people went right on through.

BEGALA: Senator, we are almost out of time. Let me ask you, finally, though, what does this augur for a fight over the next Supreme Court nomination? Are you going to advise President Bush to send somebody up who is moderate and maybe can earn some Democratic support, or to send another ultra-conservative who the Democrats will stop?

SESSIONS: Don't use that word ultra-conservative.

BEGALA: Conservative, then. Moderate.

SESSIONS: I want him to send the judge he believes is the finest legal mind in the country. That's what I hope he'll do, and we'll take it to the American people and we will have a debate and we will decide it.

But I think the special interest groups who are involving themselves to an extraordinary degree in this process, really driving some of the opposition by Democratic colleague, those special interest groups are going to try to make a lot of money with direct mail and other things, and they are going to fight any nominee he puts up, so Bush better be ready.

CARLSON: And we have one of them on in just a moment. We intend to ask him those same questions. Senator Sessions, thank you for joining us. We appreciate it.

SESSIONS: Thank you.

CARLSON: Thanks. Don't move your hands. Don't put the clicker down. We'll be right back and we'll hear from representatives of the People for the American Way about the judicial nominees stuck in the Senate.

And this -- great entertainment or Hollywood garbage at its worst? We'll debate that in the crossfire. And as always, our intriguing quote of the day. Here is a hint. Ten years ago this month, he jumped into the middle of TV furor over single motherhood. All this and more when CROSSFIRE returns.

(COMMERCIAL BREAK)

BEGALA: Welcome back to CROSSFIRE. Our debate continues over President Bush's judicial nominees. Our president today was squealing like a pig stuck under a gate about the judges he sent up to Capitol Hill. Why?

Well, we have someone here who may be able to give us an answer. Welcome, Elliot Mincberg, Vice President for the People for the American Way. Welcome.

ELLIOT MINCBERG, VICE PRESIDENT, PEOPLE FOR THE AMERICAN WAY: Paul. Tucker. Good to see you.

CARLSON: All right. Elliot Mincberg, liberals have all sorts of excuses for why they are preventing the president's nominees from becoming judges. One of them -- they did it to us, we have established that's not true.

Here is the next one, that they are not fully qualified. Now you remember, I'm sure you were part of this debate at the time, this arguing over the American Bar Association and its ratings of judges and Democrats at the time said, look, this is a really important -- this is the gold standard, really, that tells us who is qualified and who is not.

Well, it turns out that every circuit court nominee that this president has nominated has been rated qualified or well qualified by the ABA, and they're still not getting through. So what is the excuse? MINCBERG: It is not an excuse, Tucker. It is a reason that the American people have said is very important as to what the Senate ought to be doing. You don't look at paper qualifications, as the ABA does, where they went to law school, but as Senator Trent Lott himself said in 1996, and Senator Hatch, you look at their judicial philosophy. What are they going to do when they get on the bench?

And particularly this first group of nominees that everybody seems to be complaining about so much are very clearly right-wing activists. There is one of them, for example, who served on the Texas Supreme Court at the same time as Alberto Gonzalez, now the White House general counsel, and she dissented from an opinion, and Gonzalez said that adopting her view would be an unconscionable act of judicial activism. Somebody like that deserves careful scrutiny.

CARLSON: I think you're talking about Priscilla Owen.

MINCBERG: I am.

CARLSON: And I am sorry that she and Mr. Gonzalez didn't get along in the past, but as far as I know, the radical views you are talking about, the scary world-changing view you are talking about -- there is only one that I know of, and that is her position on parental consent over minors having an abortion. She believes that before a girl under 18 has an abortion, her parents ought to know about it.

This is the radical view? Because the vast majority of Americans agree with that.

MINCBERG: No, the radical view was the Texas legislature had adopted a law saying under what circumstances there should be parental notification, and under what circumstances a minor should be able to go to a judge and say, look, I have a family breakdown and I need to exercise my independent rights.

The legislature, the people that should be deciding that, made a decision. Owen wanted to commit what Gonzalez called an act of judicial activism and put her views in the way. Bush himself...

CARLSON: Well, I think you're saying the same thing I just said, and it doesn't change the fact that the majority of Americans you just alluded to agree in poll after poll with her position on this.

MINCBERG: Bush himself has said that he wants judges who will interpret the law, not not make the law. Unfortunately, a lot of his nominees would be making the law in a very right-wing direction.

BEGALA: Let me ask you about a comment that Senator Sessions made when he was out here a moment ago about the nomination of Judge Pickering. Charles Pickering of Mississippi, who is currently a district court judge, President Bush wanted to elevate him to a higher bench in the appellate courts, and he was defeated.

I think that was the right result because he admitted when Senator Edwards was questioning, he admitted that he had violated the canons of judicial conduct. But I have to say, as someone who loves the People for the American Way and many of the other liberal groups who went after him, I think it was unfair and unfortunate that he was branded a racist, because I read the record and I don't think he is.

Wasn't that the wrong thing for our side to do?

MINCBERG: I will tell you very clearly. We were very clear, if you look, Paul, at our materials, we never called Judge Pickering a racist. What we did say was was that his record in a number of civil rights cases was very troubling. There were some people in Mississippi that felt that strongly about Judge Pickering.

BEGALA: But whether -- I'm not here to defend Pickering, believe me, but some of our friends on the Left did accuse a good man, who shouldn't be on the appeals court for other reasons, of being a racist, and I think it cheapens our very valid case, in part on ideology, against these people when we resort to tactics like that.

MINCBERG: To the extent that that happened, I don't disagree with you, but I think the point is you have to look at that nomination on the merits. He had two full hearings to put out his points of view, to answer a lot of questions. His opinions were looked at very carefully, and as you pointed out, on the record he came up far short.

CARLSON: Mr. Mincberg, you sort of slipped and eluded that question, so I hope I can pin you down on this. In fact, People for the American Way did imply he is a racist. You just implied it by saying he had a troubling record on civil rights.

MINCBERG: That doesn't make you a racist.

(CROSSTALK)

CARLSON: ...renounce, and I doubt you will, but the race card for future nominees. I wonder if you will resist, I wonder if you will now pledge not to imply, in the slippery way you do, that someone has a troubling record on civil rights, which means to average Americans that person is a racist.

MINCBERG: Absolutely wrong. That is a view of conservatives sometime like you who think that. But just because...

CARLSON: You get a lot of mileage out of implying that, I have to say.

MINCBERG: What, that you are conservative?

CARLSON: No, that every conservative Republican is a racist. I think that is...

MINCBERG: No, not at all. And that's exactly wrong. What we do say is there is a very big difference between someone who is an old fashioned racist and somebody who doesn't fully and effectively enforce the civil rights laws.

(CROSSTALK)

You're the one who is saying that.

CARLSON: No, you are the one who is implying it.

MINCBERG: I am not at all. Well, let me make as clear as I can, we were not saying it, we will not say it, what we are saying is that you have to look at somebody's record. This is a man who said to the Senate judiciary committee that it is only the frivolous employment discrimination cases that ever get to his court because all of the non-frivolous ones are taken care of by the EUC (ph). This despite the fact...

CARLSON: Well, that may be true. It doesn't make you a racist. (CROSSTALK)

MINCBERG: No, but what it shows is that he is not sufficiently sensitive to the importance of civil rights issues even though in his heart he is not a racist. And that is what you can't tell the difference between.

BEGALA: Elliot Mincberg of the People for the American Way, thank you.

MINCBERG: You are very welcome.