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Former Solicitor General Ted Olson counters the Politico article on the kind of judges Rudy Giuliani has appointed.

Thursday, March 1, 2007

HH: We begin today, a real pleasure to welcome former Solicitor General of the United States, Ted Olson, a long time ago colleague of mine at the Department of Justice. Ted, good to talk to you, welcome to the program.

TO: Hugh, thank you very much for having me on the program. It’s a first. I’m thrilled to do it.

HH: Well, I’m glad to have you hear. Obviously, you’ve thrown in with Rudy Giuliani. I talked to the Mayor about that last week, a lot of people impressed by that. Today, Politico has a story out about the judges he appointed when he was mayor of New York, 75 of them. Have you had a chance to read that, Ted?

TO: I did…someone sent me a summary of that piece, but I have not had a chance to read it.

HH: Basically, it makes the argument that these are not the sort of people that conservatives and Republicans would want to see on the bench, whether or not that’s fair. How does the Mayor blunt this? How does he respond to this?

TO: Well, I think there are several things. In the first place, these were trial level, municipal type judges in New York City. Rudy had to select from people that were available, and had certain levels of compensation, I mean, certain levels of experience. Plus he was operating within a political system where his discretion was quite limited. It’s nothing like the process that he would take and had followed, indeed as you probably know he did, in the United States Justice Department when judges were being selected in the Reagan administration.

HH: And so, really is the argument back to Politico and conservatives that these are non-indicators of how a President Giuliani would select judges?

TO: Oh, that’s absolutely right. When you’re working in the City of New York, with the City Council of New York, and the historical process…in the first place, I mean, you’re in New York City where a substantial number of the people that are practicing law, that are familiar with the system, are you know, people that work with that system, and have those political leanings. You have to make political compromises with the people that recommend people, and are participating in the process of making appointments. It’s not an indicator at all. The best indicator is when Rudy was a part of the federal system in the United States Department of Justice in the early 1980’s in the Reagan administration. And the people that President Reagan appointed with…on the recommendation of Rudy, among others, were the people like Bob Bork and Justice Scalia, then Judge Scalia, and so forth.

HH: I think there are probably only two conservatives in America who can answer the next couple of questions as authoritatively as possible, you and Judge Starr, now Dean Starr. And so I want to really focus on how dramatic the shift might be on the Supreme Court over the next eight years under a president who served two terms, Ted Olson.

TO: Well, I’m sorry, I didn’t quite understand your question. You mean what might happen if we have new appointments over the next eight years?

HH: Yeah, do you see the next eight years under a two term president as having at least as much impact as George W. Bush has, and possibly even more appointees?

TO: Oh, absolutely. There are several of the justices who have been on the Court for a long time. George W. Bush has appointed Chief Justice John Roberts, who by the way, worked with us in the Justice Department of Ronald Reagan in the early 1980’s. He was one of the very first hires by Judge Starr, who was part of that same Justice Department. And President George W. Bush’s appointment of Sam Alito, who was also a part of that Justice Department, that has made a lot of difference on the Supreme Court. They are high, quality people, conservative jurists, judges who obey the law and apply the law, and don’t make the law. Those are the kind of people that Rudy will be looking at if there are vacancies in the Court. There are several of the justices who may leave the Court for one reason or another, and whoever is the president to replace them could not be more important. When you think that the United States Supreme Court decides questions of the right to life, the right to die, where you can live, how you can travel, how you can vote, the political system, what’s discrimination, there is nothing that exists in America today, there’s no facet of our life that the Supreme Court doesn’t have some part of in deciding.

HH: I’m talking with Ted Olson, former Solicitor General of the United States. Ted, how will Mayor Giuliani persuade social conservatives that they can rely on his nominees’ views on Roe, same sex marriage, gun control and property rights? How’s he going to…that’s a tough nut to crack.

TO: Well, it is. Obviously, conservatives are entitled to listen carefully, and watch carefully, and look the man in the eye, and make their own judgments. I will tell you that I have had, I’ve known Rudy for 25 years, and I know the kind of…how he feels about the separation of powers, the allocation of responsibility between the president and people who make laws in the legislature, and judges who enforce those laws, and enforce the Constitution the way it was written, and the way it was intended to be enforced. He was a part of an important judge selecting process, as I said early in the Regan administration, and a dramatic difference was made. An effort was made there by Attorney General William French Smith, for whom Rudy was the number three person in the Department, to select, and President Reagan, to select individuals, men and women, of character, integrity, and of a view of judicial philosophy that judges were to apply the law consistent with the way they were written by the policy makers. That’s the kind of people that he would appoint, that’s the kind of individuals that were appointed by the Attorney General, and the president that he worked for in the early 1980’s.

HH: Now in this Politico article today, Chuck Schumer praises one of the Giuliani appointments, says he liked her ideology. You’ve got the head of NARAR Pro-choice New York, Kelly Conlin, saying that they were decent moderate people. I don’t think he was looking for someone who was particularly conservative, added Barry Cammons, a Democrat who chaired a panel of the Bar Association of the City of New York. Now obviously, they have an interest in injuring Mayor Giuliani, I think, so they’re going to play right into the conservative fears here, but what kind of statements can a nominee, or a potential nominee make to hit this sweet spot with conservatives, Ted? I know we talk in code sometimes about originalism and Federalist Society. Does Rudy, like, have to go to the Federalist Society and somehow get them on board?

TO: Well, I’ve been a part of the Federalist Society for as long as I’ve known Rudy Giuliani. He’s been an admirer of the Federalist Society, and I’m confident…and by the way, the Federalist Society does not endorse candidates, and it doesn’t endorse judges, as far as that goes. But many of the judges that President Bush have selected have been members of the Federalist Society, because members of the Federalist Society believe in limited government, individual liberty, construing the Constitution the way it was intended by the framers of the Constitution. I don’t know exactly what Rudy’s going to have to say, but the way Rudy has been in terms of restoring the right style of life to the people that lived in New York City, I remember talking to Rudy about that before he ran for mayor. He had confidence that with the right quality of leadership, crime could be reduced, the economic conditions could be restored in New York City, the streets could be cleaned up, it could once again become the kind of city that he loved. He would apply those same kind of leadership principles and standards in being president of the United States, and appointing judges would be a very big part of it, and Rudy is committed to that. I know that, I’ve known it for a long, long time, before he ever thought about running for president.

HH: Now I’ve also got a lot of comments from gun control opponents, people who are 2nd Amendment fans, they’re gun owners, and they’re concerned about the gun ownership regime of New York. How’s he answered that one specifically, because that never gets litigated. That’s not going to get to the Supreme Court. But it’s one of those issues about which the Constitutional debate has raged forever, as you well know.

TO: Yes, I think that…I have not talked to Rudy about the 2nd Amendment issues, although I’m confident, because I know the way he approaches his concern about individual rights, that he will give that very, very close consideration, and will respect the individual right given by the 2nd Amendment to bear arms. And I’m confident that he will approach that in a way that will comfort people.

HH: We’ve got about a minute left, Ted Olson. How much time are you going to put into this campaign?

TO: Well, I’m a full-time practicing lawyer in Washington, D.C., so I have a limited amount of time. On the other hand, I think that it is such an important election, think of the alternatives to a Republican and conservative president of the United States. I won’t go into the names, but the Supreme Court is one of the most important things that we have in this country, and appointments to the Supreme Court are so vitally important as we’ve discussed, I want to do everything I possibly can to help this man, who has got such integrity and such character, and is capable of such sterling leadership, especially in times like this where it is so important to have a strong president, I will do whatever I can to help Rudy get elected president of the United States, and to communicate with people who trust me, because how much I know about Rudy, and how long I have known him.

HH: Ted Olson, a great pleasure and an honor to have you. Look forward to talking to you as the campaign progresses. Take care.

End of interview.

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