HH: It’s a real honor now to bring to you James Bopp, Jr. He is a legend in American legal circles. He’s been the general counsel of the National Right to Life Committee for what, thirty years?
HH: And you are the general counsel of the James Madison Center For Free Speech. You’ve got your own law firm, of course, Bopp, Coleson and Bostrom in Indiana, but it’s in your capacity as a pro-life lawyer that your endorsement of Mitt Romney in January meant so much. You’re in Florida…we just happened to have our paths cross. You’re in Florida at Ocala tomorrow at Noon to do a roundtable with anyone who wants to come talk about Mitt Romney, the campaign and right to life issues. Are you as comfortable today with your Romney endorsement as you were in January when you made it, James Bopp?
JB: Oh, yes, Hugh. I really am, and I looked into it very carefully back in December and January of this year, looked at his record as governor, looked at the conversion that he had that millions of people have that are a part of the pro-life movement. And it indicated to me absolute sincerity in his conversion. He walked through the burning embers as governor, vetoing pro-abortion bills, but promoting pro-life policies, ending up with an award from Massachusetts Citizens for Life just a couple of months ago for his courageous, consistent pro-life record as governor. And I just think his campaign is doing great.
HH: He’s hit as a flip-flopper by leftists at every stop. Of course, he did not flip-flop.
JB: He did not flip-flop.
HH: He converted…
JB: He converted.
HH: And that’s what we want on the pro-life side of the aisle.
JB: Well, you can look at it…he flipped. He went from pro-choice to pro-life, but he never flopped.
JB: And so he had a conversion. I mean, there are people in the pro-life movement that have had abortions that are pro-life. There are doctors who have performed abortions that are pro-life. This happens to people. We spend an enormous amount of time trying to convince people to convert to the pro-life cause. When they’ve demonstrated their leadership on this issue like Mitt Romney has, we should welcome them, embrace them, and be pleased.
HH: I mentioned to you during the break Archbishop Chaput of Denver, who I interviewed for the book, A Mormon In The White House?, who said we need more Mitt Romneys, not to be critical of them, we want to welcome them in if we’re going to change the population. Earlier today, I talked about Justice John Paul Stevens who’s 87, Ruth Bader Ginsberg is 74, Tony Kennedy and Antonin Scalia are 71, Justice Breyer is 68, Justice Souter is 68. The next president gets six appointments, I think. Do you agree with that, James Bopp?
JB: Well, I hate being on the death watch, but I have…
HH: Well, the retirement watch, we’ll call it then.
JB: All right. Well, a few of those are going to go out, except for horizontal, I’m afraid. But it is true, and the speculation is that three of the pro-abortion, liberal justices are the ones most likely to leave the Court in the next four years. And if we added those four to the four good conservatives that we have on the Court, we could see dramatic change in many issues, including on the pro-life issue.
HH: Do you have any doubt about who Mitt Romney would appoint, not names, but values and judging approach?
JB: No question. I mean, he fought a protracted battle against liberal activists in Massachusetts over the marriage issue. He knows how important it is to have strict constructionist judges on the Court. He fought them in Massachusetts. So there’s nobody, really, that’s running for president who’s had more experience with, and knows the danger of liberal activists more than Mitt Romney.
HH: Now James Bopp, you’ve been around the judge nomination and confirmation process longer than anyone. Will Romney get fooled? I mean, he might have the right instincts, but we’ve got David Souter up there who fooled the first Bush. And do you think he’ll get fooled? Or is he too smart for that?
JB: Well, presidents that are trying to do the right thing, and I’ve been there when these have happened…the first George Bush was…and Ronald Reagan, were really trying to do the right thing. And it is difficult. And you have to have the right people in the Justice Department and in the White House who expect a track record. This idea of these mystery candidates, these stealth nominees, hopefully, that day is over. But it does tell you, if you look at Rudy Giuliani, I mean, he’s pro-choice, he’s pro-gay marriage, but he’s made the statement that wants to appoint strict constructionists. The problem is it’s not really credible. I mean, the people he will have in the White House, the people he will have in the Justice Department, are people that share his liberal social views. They’ll be looking for Republican judges like that.
HH: Now Ted Olsen’s come on the show, though, and said oh, no, no, no, no. Rudy will go for Roberts and Alito. You’re not persuaded?
JB: Well, he won’t be in the White House or the Justice Department. I mean, he might be in the Justice Department, but he won’t be in the White House. And you know, when you’re trying to do the right thing, you can get fooled. Well, what happens if you really aren’t trying to do the right thing like Gerald Ford, told us that Stevens was a strict constructionist.
HH: You’re right.
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HH: I don’t even care if you’re a lefty. You ought to come talk to this man, esteemed by most litigators in the United States as one of the best advocates at the appellate and Supreme Court level. Just talk about the law with him, and then he can try and bring you around to the Romney case as well. I’m sure you like doing that, don’t you, Jim?
JB: You bet. I love the law.
HH: Let me talk to you about your work at the James Madison Center For Free Speech. First of all, tell people what it is.
JB: Well, we are formed to defend the right of citizens to participate in our democratic process. And we see campaign finance reform of the McCain-Feingold version as aimed, putting a bulls-eye on citizens in terms of their participation. And so we want to roll back, we want the version of the 1st Amendment that was actually written into the Constitution. We want the courts to enforce that. And remember, that says Congress shall make no law.
HH: No law.
JB: And you know, I’ve had three daughters I’ve raised, and they had trouble with the word no, too. The Supreme Court ought not to.
HH: Now you had a big win last term in Wisconsin Right To Life. It was a double. It wasn’t a home run, because I was arguing, and I was writing on-line cert petitions, saying come on, guys, just throw the whole thing out. Tell people what happened, and whether or not you’re optimistic that’s a first step, or pessimistic that it’s the last step?
JB: Well, I’m optimistic. Let me say that. I think we have a five member majority of the Court that gets it about the 1st Amendment, and our job is to get cases up there, and let them do what they think they can do in a given case. But we took a big hunk out of McCain-Feingold. There was a provision that created a blackout period where if you were a citizen’s group, it was a federal crime, you go to jail. In fact, they even added jail time in McCain-Feingold if you mentioned the name of a candidate in a broadcast ad sixty days before an election, a federal general election, or thirty days of a primary. I mean, you just mentioned the name like McCain in a broadcast ad. You don’t even have to say anything about him. You could praise him, criticize him, or just invite yourself to a funeral, whatever. And so that was upheld by the Supreme Court in 2003, on its face. But you know, Wisconsin Right To Life wanted to lobby about upcoming vote in Congress on Bush’s judicial nominees, wanted to stop the filibuster. Well, Congress was having that in the blackout period. So we thought that since we can lobby, Congress is in session, the 1st Amendment even talks about lobbying and protects it as a right, that they could do that, because it had nothing to do with the election. And ultimately, the Supreme Court agreed.
HH: And are you…this goes to McCain-Feingold. It’s got the name of a Republican candidate for president on it. One of the disqualifiers for John McCain is that he pushed this monstrosity into law. Do you think Mitt Romney would have vetoed McCain-Feingold? Or would he have gone with George Bush, oh, the courts will sort this out approach? This was really one of my biggest criticisms of the Bush administration, is he did not stand up to this.
JB: Well, he didn’t, and Mitt Romney’s very plain. He wants McCain-Feingold repealed. And there are some efforts in Congress to repeal parts of it, and I don’t think the Court is at all done with carving out exceptions and dismantling McCain-Feingold, if we can just get cases up there.
HH: Now where’s Giuliani on McCain-Feingold? I have not heard him talk about it. I should ask him about it.
JB: Well, he supported it at the time very vigorously, in fact. He made a lot of public statements about it. He said very recently that he has reservations that he may have been wrong. Of course, the other one’s Fred Thompson. You know, back in the days when Fred was in Congress, it was called McCain-Feingold-Thompson, and it had Fred Thompson’s name on it, and Fred Thompson absolutely moved Heaven and Earth to get it passed, including investigating my clients, the National Right To Life Committee and the Christian Coalition at the time, in order just to get information to try to create a case for the passage of McCain-Feingold.
HH: Let’s talk about free exercise rights. This is where Justice Scalia took a wrong turn with the Employment Division Vs. Smith. And do you think Romney would be committed to finding justices and judges who understand the full protections that faith deserve under the framers’ approach?
JB: Well, there’s a couple of ways of looking at that. You know, Mitt Romney is a person of faith. I mean, faith is very important in his life. And we’ve seen his family, his wife, his sons and their family, the influence that faith can have in your life, in their lives. So he recognizes the need for protection of religion in America, the free exercise of religion in America. Now you know, he’s not going to have a litmus test. He’s not going to sit down with somebody and say okay, how will you rule on this case or that case or this case. But I think he really will try to find people who believe in the original understanding of that document.
HH: Now James Bopp, I want to get some free legal advice from you. Obviously, I care about talk radio’s ability to function. I worry about the return of the Fairness Doctrine. Do you think if it was reinstituted, if it would be upheld as Constitutional, given the changing environment in which we live today with the multiplicity of outlets out there.
JB: I think that’s the real question. You know, the Supreme Court upheld it in the 60’s in the Red Lion case, but things have changed. I mean, back then, they were talking about the broadcast being very limitedly available, and they had to license it, and there was only a few entities that could get the benefit of the license. And you know, that’s just so untrue now when you add the internet and talk radio and cable television.
HH: Satellite radio.
JB: And satellite…it’s ridiculous to talk about the broadcast airwaves now as limited and the government needs to highly regulate it.
HH: Well given that, some people don’t convert their stations to talk shows because they’re afraid of the Fairness Doctrine coming in. Do you think that gets us past the Rightness Doctrine? Do you think that someone could go in right now and seek declaratory relief because this discussion is chilling our ability? Because it really does exist. People will not convert to a talk station now because they’re afraid two years down the road, Democrats come in, they’re going to put the Fairness Doctrine in, and that investment in branding will be lost.
JB: Well, you know they will, too, the Democrats.
HH: Oh, yes they will.
JB: But no, you’d have to have the passage of the legislation or the rule by the FCC to challenge.
HH: That wasn’t the right answer, Jim.
JB: I’m sorry.
HH: That’s what good lawyers tell you, though.
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HH: I want to thank James Bopp, Jr. for joining me this half hour, and remind people in Ocala, Bradenton, Jacksonville, Mr. Bopp will be doing roundtables on the future of the life movement, his campaigning for Mitt Romney. If you want to find out where he’s going to be, drop a note to firstname.lastname@example.org. James Bopp, what do you think about, you’re doing this because you believe in the candidate. But you’re a practical guy, you have to be, you’ve been waging practical politics for thirty years. From a practical political point, how’s the race look to you right now?
JB: I think it looks real good. You know, Mitt Romney has demonstrated that he has the assets and resources to win. The assets that I consider to be very important are not only his views, which of course, he’s got to have the right views, but his ability to get the job done. When you look at his development of his private company for 25 years, the Olympics, and then as governor, he has the management, organizational and leadership skills to get the job done. I mean, it’s one thing to have the right views, and we need that in a president. But if you don’t have those skills, whether or not they will turn into public policy is pretty questionable.
HH: Do you think he will staff a Department of Justice with pro-life, pro-family originalist appointees? Because we both know if you’ve got the wrong assistant attorney generals, or a deputy assistant attorney general, is just doesn’t go.
JB: Yeah, you’ve got…people are policy, and you’ve got to have the right people. And he’s done tremendous battle with liberal activist judges in Massachusetts, and he’s going to put the right people in there.
HH: And are you…as you’ve gone this for thirty years, are you an optimist that Roe and Casey will be overturned?
JB: Yes, and I think that it could happen in our lifetime if we elect in, next November, a pro-life president. If we don’t, then we’ll see it locked in, probably, for the end of my life.
HH: Is the pro-life movement energized, and is it united?
JB: It is probably neither right now. It’s suffering, just like many Republicans, on a little bit of the doldrums. But the election is starting to come more sharply into focus. And the understanding of what would happen if Hillary Clinton was elected will become more well understood. And I think you’ll see them energized.
HH: Are the phones ringing saying okay, Jim, tell me about Romney? Has that started from the pro-life activists who are uncommitted?
JB: Yes, it is starting, and people are realizing that it’s only a few months between now and…basically, 30 primaries occur in the first month. And we’re either going to have Giuliani or we’re going to have a social conservative like Mitt Romney, if we get behind it.
HH: James Bopp, Jr., a pleasure meeting you, a real honor, and thanks for spending a half hour with us. Good luck on the tour tomorrow, look forward to seeing you again throughout 2008.
End of interview.