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Jay Sekulow on John Roberts

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I interviewed Jay Sekulow from the American Center for Law and Justice today about Judge John Roberts, an exchange which should be very reassuring to those who have been raising questions about whether Judge Roberts is another Justice Souter:


HH: Jay, welcome to the Hugh Hewitt Show.

JS: Hey, thanks for having me. I appreciate it.

HH: Jay, you’re the only guy on radio who talks faster than I do, and I love that about you. I want you to take a little time and explain, especially to my center-right listeners, why you are confident that John Roberts is not David Souter, and what this latest document dump has done to underscore that conviction.

JS: Well, you know, it was interesting that you worked with John over at the White House and shared a cubicle area in the White House Counsel’s office. But I will tell everyone this. I’ve known John for 17 years. We worked together on a series of cases in the late ’80s, when he was the principal deputy solicitor general for Ken Starr. And the issues ranged from abortion protests…in fact, the case that was subject to the NARAL ad last week was my case. I argued that case twice at the Supreme Court of the United States. John represented the interests of the United States in that case, and what of course NARAL forgets to mention is not only did we win that case in a 6-3 vote, but even Justice Souter voted for us in that particular case. But I’ve worked with John on a series of cases, ranging from the application of these statutes to abortion protests, to the Mergen’s Bible Club case, which was one of the major, significant shifts in the whole church/state relationship issue, and John is a consistent conservative as you just said. And he’s someone who, most importantly here, understands the role of a judge, and that he’s not to legislate social policy from the bench. And that is one of the critical factors that I’ve looked at in this whole process.

HH: Now Jay Sekulow, I was asked, and I’m sure you have been asked by many people, about John’s participation in the moot court concerning the Roemer case, when he was head of appellate at the Hogan firm in D.C. My response may be different from yours, but I’d like to hear yours. How do you respond to your Christian friends, your Jewish friends, all of your friends who’ve said how come he had a hand in Roemer?

JS: Well, it’s easy to me, and i know people were concerned about it. If you’re not familiar with Supreme Court advocacy, it might seem unusual. But the Supreme Court bar, as you know, Hugh, is not a large bar. It’s a small amount of us that try and argue multiple cases at the Supreme Court. And you do participate in moot court sessions on cases you don’t agree with. I’ve done that, too. It may not be a particular issue I agree with, but I’ve sat in on a moot court, and asked questions in the mold of a Justice Scalia or a Justice Thomas, to prod the other side. Now the reason you’d want to do that, and people drew conclusions that were not really appropriate. The best thing about a Supreme Court argument is when they’re both excellent arguments, and it crystallizes the issues that are before the Court, and hopefully will end up in a positive decision for your particular client. Now in this particular case, Hogan and Hartson, as you know, is a large Washington, D.C. law firm. They took the case. I wouldn’t have taken the case at the American Center for Law and Justice, but I’m not a private law firm in that regard.

HH: Right. Right.

JS: So it’s just a whole different sceanrio, and look. Michael Newdow, who argued the pledge of allegiance case to the Supreme Court of the United States. I disagreed with every legal issue that Michael raised, from the standing issue to the issue about the Constitutionality of the pledge. Obviously, I thought it was Constitutional. And I thought he was going to lose, exactly as he did. But I did tell him three things: one, talk slow when you’re up there. Two, be respectful. Three, don’t mess with the podium. It could really mess things up. And what are people going to say? He helped Michael Newdow? So I mean…

HH: That’s a great argument, Jay.

JS: It’s a bit of an overreaction for people that are unfamiliar with the Supreme Court.

HH: That is a great argument. Now let me ask you. I was asked by a New Yorker writer two days ago, which cases I thought would go the other way, or which precedents would be endangered by a Roberts confirmation. Now none of us know for sure, but I rattled off Stenburg. I rattled off the Ten Commandments case this past term, and probably the Michigan affirmative action case. What do you think?

JS: I think that’s right. If you look at Justice O’Connor as the swing vote in each of those cases, clearly…for instance, the Ten Commandments case…while we carried the day in Texas with a 5-4 vote, our side lost the Kentucky case. I definitely think that a John Roberts on the Court, with his view of the establishment clause, would have come out the other way on that. We would have carried the day. Stenburg, a 5-4 case, Justice Kennedy, very important here. Justice Kennedy went with our position. Now we’ve got…there are three cases that the Justice Department has right now, at the Court of Appeals, one of which is on its way up to the Supreme Court in probably the not-too-distant future, that involves a partial birth abortion case. I assisted the Justice Department in New York on the trial that took place there in front of Judge Casey. So you take a case like that, where Justice Kennedy ruled in our favor. He was still the dissenter, because Justice O’Connor was the other side. I think in each of those cases, you could see…you will see a sizeable shift, and the case could definitely go the other way. But as you said, you never know how a judge is going to rule in a particular case, because they’re all kind of technical issues that come up. But I feel like with John Roberts, we’ve got a very, very appropriate judge who understands that Congress has a role to play in policy making.

HH: Now Jay Sekulow, you are probably the best talking head the center-right has. And I’ve been watching the media coverage. I’m not seeing enough of you on the nets. Is it that you’re too busy? Or is it that they’re not calling, because you are so good?

JS: Well, part of it is, on the…you know, I did a whole series of interviews on…I even did Face the Nation a couple of weeks back. There’s a couple of things going on. One is that I’ve got another case at the Supreme Court this term, that we’re briefing right now, and will be arguing in November.

HH: Oh, and you’re going to use that as an excuse? Just that you have to go up and argue?

JS: There you go. So I mean part of it is that, but you know, the Brey case, when that came up yesterday, or last week rather, we were very aggressive on our own radio broadcast about how inappropriate that whole ad was by NARAL…

HH: Yup.

JS: And behind the scenes, really worked with members of the Senate in both parties to show how outrageous that particular action was. And the end result of that was the ad was pulled, so mission accomplished. So sometimes, you’ve got to fly above the radar screen, sometimes below it.

HH: Now two questions, Jay. We’ve got a minute left. What’s your website? And what’s your expectation of the rest of the confirmation process?

JS: Website is, so that’s very easy for people to get to. I think it’s going to be smooth sailing. However, you look at articles that were out about the same time when Justice Thomas was nominated, they were saying exactly the same thing. So, I would not let up for one moment here, because I think that we’ve got to be prepared every step of the way.

HH: That’s right. Shields up. Jay Sekulow, we’ll check back with you throughout this process.

End of interview.


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