'This Week' Transcript: Sens. Leahy and Hatch

STEPHANOPOULOS: Good morning and welcome to "This Week."

Justice Souter retires.

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DAVID H. SOUTER, ASSOCIATE JUSTICE, U.S. SUPREME COURT: I find the workload of what I do sufficiently great that I undergo a sort of annual intellectual lobotomy.

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PRESIDENT BARACK OBAMA: I will seek someone who understands that justice isn't about some abstract legal theory.

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STEPHANOPOULOS: As President Obama prepares to make his mark on the Supreme Court, our headliners are the senators who must ratify his choice, the chairman of the Judiciary Committee, Patrick Leahy, and its longest-serving Republican Orrin Hatch.

Then, swine flu continues to spread. Has the worst passed or is it still to come? We'll ask the federal team in charge.

And Senator Specter switches sides.

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SEN. ARLEN SPECTER, D-PA.: I've decided to be a candidate in the Democratic primary.

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STEPHANOPOULOS: What will it mean for Obama's agenda and the GOP's future? That and the rest of the week's politics on our roundtable with George Will, Gwen Ifill of PBS, Jerry Seib of the Wall Street Journal and Paul Krugman of the New York Times. And as always, the Sunday funnies.

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JAY LENO: See all those people on the news walking around wearing those surgical masks, huh? Suddenly Michael Jackson not so crazy, huh? Yes.

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STEPHANOPOULOS: By Friday, David Souter's wish to quit the Supreme Court had become Washington's worst kept secret, but President Obama stage-managed a bit of a surprise that afternoon when he crashed the daily briefing.

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OBAMA: If there's a job to do, you got to do it yourself.

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STEPHANOPOULOS: After thanking Justice Souter for his service, the president described his ideal justice -- a person of intelligence, excellence, integrity and empathy.

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OBAMA: I will seek someone who understands that justice isn't about some abstract legal theory or a footnote in a casebook. It is also about how our laws affect the daily realities of people's lives. Whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation.

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STEPHANOPOULOS: Which brings us to our headliners, Senator Patrick Leahy, the chairman of the Senate Judiciary Committee, and its former chairman, Republican Orrin Hatch.

Gentlemen, welcome to you both. And Senator Hatch, let me begin with you. What did you make of the criteria the president laid out?

HATCH: Well, it's a matter of great concern. If he's saying that he wants to pick people who will take sides -- he's also said that a judge has to be a person of empathy. What does that mean? Usually that's a code word for an activist judge.

But he also said that he's going to select judges on the basis of their personal politics, their personal feelings, their personal preferences. Now, you know, those are all code words for an activist judge, who is going to, you know, be partisan on the bench.

STEPHANOPOULOS: Now, he did also say he wants someone who respects the rule of law and the limits of the judicial role...

HATCH: He did say that.

STEPHANOPOULOS: So it sounds like you're saying that you think there's a tension between following the law and following your feelings when you're a judge.

HATCH: Well, I don't think there should be a litmus test or any set of litmus tests when you pick people for the high court, and I suspect that the president understands that. He's a very bright guy, charismatic, intelligent, likable, and I'm hoping that he'll pick somebody of great dimension.

We all know he's going to pick a more liberal justice. Their side will make sure that it's a pro-abortion justice. I don't think anybody has any illusions about that. The question is, are they qualified? Are they going to be people who will be fair to the rich, the poor, the weak, the strong, the sick, the disabled, and yet give justice to those who may not be...

(CROSSTALK)

STEPHANOPOULOS: Chairman Leahy, let me bring you in on this, because what Senator Hatch is saying there I've heard from a lot of other conservatives, this fear that the president's focus on empathy is a code for bringing a judicial activist to the court.

LEAHY: I've known President Obama long enough. He doesn't need to use code words. He speaks very plainly and very directly. I think that's why he won such a resounding victory in November.

I talked with President Obama shortly before he did that press conference, and I think I have a pretty good sense out of the meeting with him when I returned to Washington from Vermont -- I have a pretty good sense of what he has in mind for a justice. What I would argue...

STEPHANOPOULOS: What is it?

LEAHY: What I would argue...

HATCH: I would like to know that, Pat.

STEPHANOPOULOS: What I would argue is you walk into the Supreme Court, over the doorway there is a great big piece of Vermont marble, and engraved on it, it says "equal justice under law." That's what you want to have.

We've had a very activist court. We had an activist court that made a decision that allowed employers to covertly discriminate against women so that women wouldn't get paid equally. We in the Congress reversed that with a law, in fact, the first law that President Obama signed into law. I think he wants to have somebody to treat people all the same, whether they're Republicans, or Democrat, men, women, or whatever they may be.

STEPHANOPOULOS: Let me press on that a little bit, Senator Leahy, because you have spoken with the president about it. I just want to know a couple of things about that. Number one, did you recommend any specific candidates to the president? And number two, because others have not been shy about recommending a potential candidate. Your colleague Senator Schumer has said the president should consider -- highly consider a Latino choice. I think there is a wide expectation throughout Washington that the president will pick a woman. Is that your understanding, and does President Obama risk a backlash if he doesn't pick a woman?

LEAHY: Well, I think one of the reasons why the president and I get along well is that we have conversations; you don't hear about them. You don't read about them afterward.

I will make recommendations, some specific recommendations to him. I've also recommended that he sit down with both the Republican and Democratic leadership and talk about this.