'This Week' Transcript: Sens. Leahy and Hatch

May 3, 2009 — -- STEPHANOPOULOS: Good morning and welcome to "This Week."

Justice Souter retires.

(BEGIN VIDEO CLIP)

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

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

(END VIDEO CLIP)

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

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

And Senator Specter switches sides.

(BEGIN VIDEO CLIP)

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

(END VIDEO CLIP)

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

(BEGIN VIDEO CLIP)

JAY LENO: See all those people on the news walking aroundwearing those surgical masks, huh? Suddenly Michael Jackson not socrazy, huh? Yes.

(END VIDEO CLIP)

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

(BEGIN VIDEO CLIP)

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

(END VIDEO CLIP)

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

(BEGIN VIDEO CLIP)

OBAMA: I will seek someone who understands that justice isn'tabout some abstract legal theory or a footnote in a casebook. It isalso about how our laws affect the daily realities of people's lives.Whether they can make a living and care for their families, whetherthey feel safe in their homes and welcome in their own nation.

(END VIDEO CLIP)

STEPHANOPOULOS: Which brings us to our headliners, SenatorPatrick Leahy, the chairman of the Senate Judiciary Committee, and itsformer chairman, Republican Orrin Hatch.

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

HATCH: Well, it's a matter of great concern. If he's sayingthat he wants to pick people who will take sides -- he's also saidthat 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 oftheir personal politics, their personal feelings, their personalpreferences. Now, you know, those are all code words for an activistjudge, who is going to, you know, be partisan on the bench.

STEPHANOPOULOS: Now, he did also say he wants someone whorespects 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 thinkthere's a tension between following the law and following yourfeelings when you're a judge.

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

We all know he's going to pick a more liberal justice. Theirside will make sure that it's a pro-abortion justice. I don't thinkanybody has any illusions about that. The question is, are theyqualified? 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 givejustice 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 ofother conservatives, this fear that the president's focus on empathyis a code for bringing a judicial activist to the court.

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

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

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 SupremeCourt, over the doorway there is a great big piece of Vermont marble,and engraved on it, it says "equal justice under law." That's whatyou want to have.

We've had a very activist court. We had an activist court thatmade a decision that allowed employers to covertly discriminateagainst women so that women wouldn't get paid equally. We in theCongress reversed that with a law, in fact, the first law thatPresident Obama signed into law. I think he wants to have somebody totreat 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, SenatorLeahy, because you have spoken with the president about it. I justwant to know a couple of things about that. Number one, did yourecommend any specific candidates to the president? And number two,because others have not been shy about recommending a potentialcandidate. Your colleague Senator Schumer has said the presidentshould consider -- highly consider a Latino choice. I think there isa wide expectation throughout Washington that the president will picka woman. Is that your understanding, and does President Obama risk abacklash if he doesn't pick a woman?

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

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