On Monday’s Fox and Friends, FNC judicial analyst Judge Andrew Napolitano summarized the implications for the Supreme Court when President of liberal ideology is elected in a way rarely seen in the media. As he explained the goals that Republicans will have during this week’s confirmation hearings for Supreme Court nominee Judge Sonia Sotomayor, Napolitano contended that electing a liberal President can lead to the appointment of judges with some of the "strange" and "odd" views and rulings exemplified by Sotomayor. Napolitano:
The Republicans want to accomplish making the country aware of the fact that when you elect a liberal Democrat as President, you get a judicial nominee with these strange ideas. Like, if you take a test, and you pass the test and you're supposed to get promoted, well, you won't get promoted because not enough people from another race passed the test. A lot of Americans will reject that attitude which she embraced. ... If they can show her as embracing odd attitudes like that, they can show up the President for being the liberal that we know he is and that the American people might not be willing to accept.
Napolitano also brought up the implications for some of her statements off the bench, and suggested that she may be more willing to make more extreme rulings against Supreme Court precedent as a member of the Supreme Court than she would have made on a lower court, because on a lower court she must follow the established legal interpretations of the Supreme Court. Napolitano:
I think the fear is that the wise Latina stuff, the speeches in which she's pushed the envelope, those attitudes will start to seep into her opinions once she gets on the Supreme Court from which there effectively is no appeal. On the circuit court of appeals, I mean, she really has to follow what the Supreme Court says the law is, but if she's on the Supreme Court, there's effectively no appeal from that. And the attitude that I'm different, I'm here because I'm a member of a group can sort of seep its way into the jurisprudence.
Below is a complete transcript of the segment with Napolitano from Monday’s Fox and Friends on FNC:
PETER JOHNSON, JR.: Confirmation hearings, they’re going to begin this morning for Supreme Court nominee Sonia Sotomayor, and she’s expected to face some tough questions.
STEVE DOOCY: All right, Fox News senior judicial analyst, Judge Andrew Napolitano, is here with a preview of the hearings that kick off today with a statement at 10:00 Eastern. You’ll see it right here on the Fox News Channel. Okay, Judge, some of the things, Time magazine, their online thing, they already have how the Republicans plan their attack.
NAPOLITANO: Right.
DOOCY: You know, I don't know why they framed it that way, oh, it's Time magazine. Everybody wants to know whether or not this is a fair person. And one of the first things that's going to come up is that remark that she made a number of times regarding the wise Latina. She would hope that a wise Latina would make a better decision than a white male.
JUDGE ANDREW NAPOLITANO, FNC JUDICIAL ANALYST: I'm sure she wishes she had said it differently. I’m sure she wishes she had said a wise Latina would bring different experiences to the court than a white male would.
DOOCY: Sure.
NAPOLITANO: And, in fact, Judge Ruth Bader Ginsburg, in yesterday’s New York Times Sunday magazine, basically said I'm different, I'm a woman, I'm Jewish. I was worn in Brooklyn. I brought some different experiences and ideas to the court – not better ones, but different ones. I'm sure she has an answer to that, but I think the goal-
DOOCY: But she said it several times. It wasn’t like she just said it one time.
NAPOLITANO: She said it five times. She said it five times. Now, if you read her opinions – and I read many of her opinions for the documentary we ran last night – they are decidedly liberal. But I think you’ll agree, Peter, within the mainstream of American legal thinking. It is her statements to law students and lawyers and judges and advocacy groups off the bench where she pushes the envelope.
JOHNSON: I do agree with you, and I think her opinions are in the mainstream. So here’s the question. If her opinions are in the mainstream, why are some people getting upset about her? She’s been a prosecutor. She’s been a commercial litigator. She’s been a district court judge. She’s been an appellate court judge at the federal level. Is somehow she going to change her stripes when she gets to the Supreme Court? Is that the fear?
NAPOLITANO: I think the fear is that the wise Latina stuff, the speeches in which she’s pushed the envelope, those attitudes will start to seep into her opinions once she gets on the Supreme Court from which there effectively is no appeal. On the circuit court of appeals, I mean, she really has to follow what the Supreme Court says the law is, but if she’s on the Supreme Court, there’s effectively no appeal from that. And the attitude that I'm different, I'm here because I'm a member of a group can sort of seep its way into the jurisprudence.
JOHNSON: But in American history, haven't certain members gone to the Supreme Court because they were part of a group.
NAPOLITANO: Yes, yes, they have. Yes, they have. And certain people have gone to the Supreme Court with the idea that I’m here to represent a certain view. And certain people have gone to the Supreme Court and terribly disappointed the President who nominated them and the people who supported them.
JOHNSON: If you could cast a vote today, would you have voted her?
NAPOLITANO: I wouldn't have nominated her because I’m not likely to agree-
JOHNSON: No, as a Senator, as a Senator, would you vote for her to confirm her?
NAPOLITANO: If you believe that you can reject somebody because of ideology, I would vote against her because I disagree with her on many, many things. If you believe that you should vote just on the basis of competence and give the President his due, then she should be confirmed..
DOOCY: But it's a math problem. The Democrats have got the 60 votes. It's already a done deal. So the big question is, how much of a ruckus do the Republicans want to raise?
NAPOLITANO: Here’s what the Republicans want to accomplish. The Republicans want to accomplish making the country aware of the fact that when you elect a liberal Democrat as President, you get a judicial nominee with these strange ideas. Like, if you take a test, and you pass the test and you’re supposed to get promoted, well, you won't get promoted because not enough people from another race passed the test. A lot of Americans will reject that attitude which she embraced.
JOHNSON: But that’s not mainstream, right?
NAPOLITANO: That is not mainstream. If they can show her as embracing odd attitudes like that, they can show up the President for being the liberal that we know he is and that the American people might not be willing to accept.
