Sotomayor Showdown Brewing

This is a rush transcript from "On the Record," June 2, 2009. This copy may not be in its final form and may be updated.

MARTHA MACCALLUM, FOX NEWS GUEST HOST: Judge Sonia Sotomayor making the rounds on Capitol Hill today, President Obama's Supreme Court nominee spending a whirlwind day. She met with Senate leaders, including Senate majority leader Harry Reid, minority leader Mitch McConnell, and the ranking Republican member of the Senate Judiciary Committee, Jeff Sessions, who will go "On the Record" in just a moment.

Meanwhile, here's a news flash for you. Rush Limbaugh does not approve of the president's pick. He went after the judge's record today on the radio. Listen to this.

(BEGIN VIDEO CLIP)

RUSH LIMBAUGH, RADIO TALK SHOW HOST: If you look at the entire speech that Sonia Sotomayor gave in which this line was supposedly taken out of context, where the richness of her our experience as a Latina would enable her to come to a better decision than a white male, that was not taken out of context.

In fact, that is and was the context of her entire speech, or a vast portion of it, was devoted to the proposition that the oath of office -- she didn't say this -- the oath of office is irrelevant, that, of course, you bring your personal life experiences to the job, and, of course, you render decisions based on it. She made a case for it. This one line has not been taken out of context. This whole speech is a disqualifying speech.

When I say Sonia Sotomayor is racist and bigoted, and that she would bring racism and bigotry to the court, it's the truth, and nobody is denying that. They are just upset that I'm saying it.

"Gee, Rush, you have to dial that down. That's a little bit harsh." But nobody is challenging the substance of it.

(END VIDEO CLIP)

MACCALLUM: There you have it. That's what Rush Limbaugh thinks. But what about the Senate Republicans? What do they think? Senator Jeff Sessions, ranking Republican on the Senate Judiciary Committee, met behind closed doors with judge Sotomayor today. We talk to him right after the meeting. Listen to this.

(BEGIN VIDEOTAPE)

MACCALLUM: Hello, Senator Sessions. Martha MacCallum here. Thanks for being with us tonight.

SEN. JEFF SESSIONS, R - ALA.: Thanks, Martha.

MACCALLUM: Talk to me a little bit about your meeting with Sonia Sotomayor. What are your thoughts, what was your takeaway from sitting down with her?

SESSIONS: It was a good meeting. We did not go into too much detail this time. We will probably meet again. But she is very engaging. She has a good background for a judge, had a lot of good experiences. So we talked about that and what kind of cases she had been involved in over the years, and her background and experience.

MACCALLUM: What about, I heard you say this afternoon that you felt like September would be soon enough. What is your thinking behind that? A lot of people want to get this done and have it done by the end of summer.

SESSIONS: Martha, this is the one chance that the United States Congress, the people of the United States really have to examine a nominee. They will be put on the bench for the rest of their life. Justice Stevens (sic) is not stepping down until October 5, so we should not rush this process. That would be my number one concern. She has almost 4,000, maybe more, cases than that to review. And I just think a fair and careful scrutiny of her record is the proper response for Congress, and it is just going to take some time. I do not want to rush it.

MACCALLUM: What was your gut feeling after your meeting? Did you walk out of that meeting thinking to yourself, I could see myself voting to put this woman on the Supreme Court?

SESSIONS: Well, I liked her, and I enjoyed our conversation. But we have to look at some very important things.

First, let's look at what President Obama's standard, criteria for a judge. I'm not happy with that. He says a judge should show empathy, to allow their personal feeling to help them decide one way or another how a case should be decided. I think that is directly contrary to the fundamental American rule of law that we have always lived with, the neutral umpire.

So I think we are going to need to take some time and make sure that our nominee, when they get on the bench, you know, they need to know they have been appointed but not anointed, not anointed to set policy for America, not anointed to fix problems that the legislature chose not to fix. That is just not the role of the judicial branch.

MACCALLUM: Now, I'm sure if you ask most Americans who have been following this, what quote they would associate with her, they are probably going to come up with the one where she said that a Latina woman in many cases would make a better judgment than a white male.

I have been reading the context of those statements that she gave to a Hispanic legal group when she was given an award. Does that comment in and of itself disturb you, or are you satisfied with what she said today, which was that, you know, she would not let those cultural backgrounds and personal feelings get in the way when making judgments?

SESSIONS: That was not just an award speech. That was a speech she had published in a law review. It represented a significant discussion of the role of a judge, and a lot of that was very troubling to me. I was uneasy about that. It suggests that it is impossible -- almost suggests it is not an aspiration of a judge to be unbiased. So that is one of the things that I am concerned about. But she is entitled to a full opportunity to explain that, and I think she needs to be given that opportunity. And as time goes by, I think we will inquire into that more and get a better picture of it.

MACCALLUM: Do you think it's the case that when you talk to conservatives about a liberal nominee, or you talk to liberals about a conservative nominee, a lot of times it feels that people want the law to be the most important thing in their considerations. But conservatives often want certain elements of personal background and belief system to come into play, and Democrats, it would seem, often want certain things in their background that might dictate how they feel about things like affirmative action, for example, to come into play. So is that a double standard?

SESSIONS: No. I think the conservatives have the high side on this. For the most part, although, some, maybe not, but for the most part, overwhelmingly, I think the conservative position is that judges should not be setting the agenda. Judges do not need to carry out my political agenda. That should be done in the political branches.

And I think pretty often historically, liberals have looked for the courts to do for them that which they cannot win at the ballot box.

So I think there is a classical difference. Republicans and conservatives tend to favor judges who show restraint, who understand their role is to be that neutral umpire, to call the balls and strikes and not take sides in the ballgame. That's all I want out of a judge.

And I'm nervous about one who thinks they can go further than that, citing foreign law or other kind of doctrines that enable them to get away from the real requirements of the law.

MACCALLUM: So how did you get at that with her today? What did you ask her, and did set your mind at ease at all, or did she raise new concerns for you?

SESSIONS: Martha, I guess I will just say we just talked about that a little bit in a pretty general term, and we had a nice conversation about it?

But it is not fair for me to draw conclusions today from what she said. I did enjoy the conversation. She is engaging and a delightful person to be with.

MACCALLUM: Before I let you go, do you think this is a wise road for conservatives? Do you think they should fight this nomination too hard, or do you think politically it could hurt to them with Hispanics who would be very proud to see her on the Supreme Court, and who Republicans and conservatives may very well need in the next election?

SESSIONS: I think the Hispanics are proud of this nomination, as most Americans are. They are happy to see someone come from an immigrant family to be nominated for the Supreme Court, and already hold a very high position in the court of appeals in America.

But let me tell you. We need a national discussion, a national discussion, about the role of judges and what power they have to set policy, what power they have to bend or manipulate the meaning of words to accomplish a result rather than to follow a decision in a fair and objective way.

I think there is a problem. I think in the many great law schools today, there is a doctrine out there that President Obama seems to be in harmony with that suggests it's the right thing for judges to allow their feelings, their empathy to help them decide how to rule on a case. And I think that is contrary to the great history of American law.

So that will be one of the bid debates and discussions that will override this entire process. Not so much her personally -- I don't have any knowledge that she is anything other than an ethical and a fine person, but I do think that her judicial philosophy is ultimately the thing we will be looking at.

MACCALLUM: It's a great discussion, and one, as you say, is very much worth having. I think both sides would agree on that.

Senator Session. Good to see you tonight. Thank you very much for being with us.

SESSIONS: Thank you.

(END VIDEOTAPE)

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