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Senator Rick Santorum On The Supreme Court Decisions And The Judges He’d Appoint

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Senator Rick Santorum joined me Monday afternoon:

The Audio:


The Transcript:

HH: Joined now by United States Senator Rick Santorum, formerly the United States Senator from the great state of Pennsylvania. I say that with a choke in my voice. And he is also the winner of the Iowa Caucuses in 2012. As I wrote at my Washington Examiner column today, “Rick Santorum remains by far the most underrated of the GOP field. His experience both as a senator and a candidate shows in his unfailing good humor and ready answers for any question of substance. He may be sent to the kiddie table debates in August and September, but he will know how to use the great time allocations given those candidates. I said it four years ago, I say it again. Don’t underestimate the product of Western Pennsylvania, where nothing is easy, and everything is earned.” Senator Santorum, welcome back, what do you make of that?

RS: Well, thank you very much, sir. Very kind of you, and I couldn’t agree with you more.

HH: Okay, so that means I’ve got to pick up where I left off just now with Ted Cruz, the hardest question right now. You were a Senator, he is a Senator. You both love the legislative filibuster. I’m ready to throw it overboard if that’s what it takes to get rid of Obamacare. When I asked you off the record in the green room, you gave me an answer. I want you to give your answer to the American people. If it came down to getting rid of Obamacare root and branch, and saving the legislative filibuster, which would Rick Santorum pick?

RS: Well, the answer is we don’t have to use, have to worry about the legislative filibuster to get rid of Obamacare. You can use a process called reconciliation, which is a process that allows the House and Senate to pass a bill. If you can pass a budget, a budget requires a 50% vote, both the House, 51% of both of the House and Senate. You can pass a budget with an instruction called a reconciliation instruction, and it’s all gobbled-gook, but the bottom line is if you can do so with an instruction to fix the health care bill, and either increase or decrease the budget by a particular amount to do that, then you have the authority to come back with a tax bill that will implement that, which means you can get rid of all of the fees, you can get rid of all of the taxes, and get rid of all of the spending. And you can, if we can gut Obamacare with that bill, and then the second thing you need to do is put in place provision that then replaced it. Now is it going to be a perfect way of doing this? No, because there’s a lot of language that you would like to have that you can’t put in there. But you can get rid of it, and put a template in place for building a new system that is going to be based on consumer choice and freedom, and a government treating all taxpayers the same with respect to supporting their health care purchases they would make in the private sector as opposed to what the government tells you have to buy.

HH: Now others have looked at this, and they say that indeed, a lot of Obamacare could be gotten rid of via reconciliation, but not all of it. And indeed, not only that, but other major parts of the repair job that needs to be done, specifically Dodd-Frank and other things, could not be gotten rid of in reconciliation.

RS: Yeah, I agree with that.

HH: So if you’re up against that, will you throw the legislative filibuster out in order, will you urge? You can’t do it. You’d be the president. But would you urge your former colleagues in the Senate to abandon that extraconstitutional device in order to right the country?

RS: Well, as you know, I’m a big fan of the Senate rules. But what Harry Reid has done is get the cat out of the bag. And you’d like to think that it can be put back in. But what I do know, if there’s anything I know about the Democrats, is that they actually are abusers of power, and they will abuse power. And because Republicans who frankly tend to respect tradition and try to limit power of the government, by us putting that genie back in the bottle, it simply will leave the cork open for someone in the future to do it. So I would say this. I would try to use every means necessary not to use it, but I would certainly keep it in my bag of tricks as a last resort if necessary.

HH: You know, Jonathan Chait over at New York Magazine wrote today that yeah, you can get rid of the tax and spending parts through reconciliation, but regulation is involved here. The law prohibits insurance companies from charging higher prices to sick customers or denying coverage for basic medical procedures that only a sicker person might need or want.

RS: But we all know, Hugh, that the President has great flexibility in the regulation, and how to implement Obamacare. And he has shown that repeatedly, that the President can suspend provisions, delay provisions, change provisions. And so I will use the same flexibilities that President Obama has in implementing Obamacare, to use that same flexibility in pulling it apart.

HH: But if you needed to, you would go to Mitch McConnell and say Mitch, we have to invoke the Reid Rule to get rid of this, this and this?

RS: If, again, I don’t think I’ll need do with Obamacare. I really in all sincerity don’t. I’ve looked it pretty carefully. I don’t think we’ll need to. I think we’ll be able to do what’s necessary, and we’ll leave it in a position where I think everyone at that point will want to do something different, and put something in place that will actually work, as opposed to holding on to bits and pieces of something that’s essentially gone. So I don’t think we’ll need that. There may be other things, you mentioned Dodd-Frank, which is a different anchor around small community banks and small businesses being able to grow and prosper in this country. And there may be instances where that at least may be, as I said, be in the arsenal that you’d want to threaten to use.

HH: I’ll be right back with Rick Santorum. Don’t go anywhere, America.

— – – —

HH: Rick Santorum, what is your website for people who want to get involved in the Rick Santorum campaign?

RS: That would be

HH: That’s easy enough. I was talking with Senator Cruz earlier about Chief Justice Roberts, who is an old colleague and a friend of mine, and as he is of Ted Cruz. And you may know the Chief, too, I don’t know. What is the best argument that can be made for his two decisions last week being both consistent and good? I know you don’t agree with the first one. You agreed with his dissent on the marriage cases.

RS: Yes.

HH: But what’s the best argument that can be made for his approach?

RS: I guess the best argument that can be made for his approach upholding the Obamacare decision is trying to have the Court interpret a law consistent with the intent that Congress wants this law to work. I think that’s the argument he made that he could maybe stretch to believe, okay, maybe the Court’s got to look at this thing in the context that they wouldn’t deliberately make a law that on its face was not written very well. And potentially, you could look at it from the standpoint that how this bill passed, where it couldn’t be amended, it was never really, that bill was never intended to pass, because no one ever thought that they would need to pass that as is until Ted Kennedy died and they couldn’t bring it back to have it changed. So he may be looking at it saying we’re just going to have to, in this case, on the unique circumstances of this bill, you know, we have just try to defer to the Congress, that they would have fixed these things had they had the chance. They didn’t have the chance, and so we’re going to be a little bit more flexible. I think that’s a horrible way of analysis. I think that’s completely wrong. But it’s at least somewhat rational.

HH: Now I asked Senator Cruz, he also knows the Chief and Judge Mike Luttig, who’s now retired from the 4th Circuit.

RS: Yeah.

HH: As you know, George Bush picked between those two.

RS: Yeah.

HH: Do you think Judge Luttig would have decided these two cases differently?

RS: You know, I voted to confirm him to the Appellate Court, and studied his record. And certainly, he was one of the guys that we looked at when the, as you know, when we were looking at Roberts and Alito. And I was for him. Let’s just put it that way.

HH: Now the interesting thing about the other George Bush, George Herbert Walker Bush, he came down to choosing Edith Jones or David Souter. And you and I both know how different the country would have been if that day John Sununu had not persuaded George Herbert Walker Bush to pick David Souter, who in essence tricked George Herbert Walker Bush.

RS: Yeah.

HH: And I’ve always said this. I don’t know how any man can ethically sit there and allow a president to pick a justice who he knows in his heart, in his own heart, to be not the justice that man is looking for. But he did. How are you, Rick Santorum, going to avoid getting tricked?

RS: Listen, the most important thing, and this is, and no disrespect to the Chief, but I think one of the things that I’m going to look for in a judge is that he’s a judge, number one, who has a track record, an obvious track record of being conservative.

HH: But wait. May I interrupt you? I don’t think George W. Bush was tricked by the Chief because of his dissent in the Arroyo Toad case. I mean, he has, he had a record as conservative as could be. It was Souter who didn’t have a record.

RS: Right, but I’m saying, that my point is I would pick someone, and I think that was my first point. The second point deals with the Chief, which is I want to pick someone who doesn’t care whether he’s liked or not, someone who is not used to be fawned over and approved us, and likes being fawned over and approved of, because they’re the ones who tend to come to Washington, D.C. and want to be accepted.

HH: But Senator, if I can, I’m going to interrupt. Roberts wrote Citizens United. He joined in Hobby Lobby. He wrote a concurrence in Citizens United. He wrote the marriage dissent, which is going to earn him the venom of the left for years to come. He’s not that guy. So how, I’m really digging here into the candidate as to figure out if, are you going to quiz them on specific issues, because that’s been verboten until now. And the only way you can ever be sure is to quiz.

RS: Well, I think you can quiz, but I think look, you make the case. John Roberts has not been a disaster as a Supreme Court justice. Let’s just be honest. He’s no David Souter. So I mean, with all things being equal, there are a lot worse people you could have picked, and George W. Bush didn’t do a bad job in picking Justice Roberts. He could have done, obviously from these cases, could have done a little better job. But you never, you can’t know for sure how everybody’s going to deal every case. And there’s probably cases that you know, that conservatives would rule one way and I might have…you know, there’s some things Clarence Thomas and I don’t agree on in some of the rulings he makes. So you can’t have a perfect record, because nobody’s the same. But I think the point I’m making about picking someone who has a record of being a conservative and someone who doesn’t care about what public opinion, I think is the two most important aspects of looking at the psyche and the philosophy of a judge.

HH: Now what’s interesting to me, Senator Santorum, is it possible that you as a candidate, and the Republicans as a party, and the country as a whole, is better off with Obamacare whole and around Hillary Clinton’s neck than not?

RS: My concern with the case being decided the other way was the complete lack of leadership that exists in the Republican Party in the House and Senate right now. And as a result of that, what would have ended up, no doubt, would be a circular firing squad where a bunch of Republicans would have defected to extend Obamacare anyway. And that would have, if you want to talk about demoralizing me as well as the rest of those of us who worked hard to get a Republican Congress, I think the Republican Congress would have gone ahead and extended Obamacare if the decision would have struck down Obamacare. And we’d actually be in worse shape going into this election. Now I could be wrong. Maybe there was, maybe there would have been an opportunity to rally and right and get a lot of Obamacare pared back. I didn’t see, really, any organized effort leading up to that decision for that to happen, which makes me think that there wasn’t the folks to do it. And you’re right, we may be better off having a clean Obamacare to deal with.

HH: Yeah, the Chief Justice doesn’t need any defenders, but I am taking on that role recently, because I think some of the criticism of him has been way over the top, and they neglect to note that in fact there may be some very silver linings here in what did not happen. Let me ask you, though, about the other story of the day. It’s been revealed that Hillary Clinton did not turn over emails, and we’re going to come back from break and we’ll have three minutes, and I want you to think about it during the break. She did not turn over emails. She wiped them clean. She burnt the equivalent of her Nixon tapes, including an email from the President. Is this a cover up?

— – — –

HH: Senator, I went to break, and we only have two and a half minutes. Did Hillary Clinton engage in the equivalent of Fawn Hall shredding Ollie North’s papers? Did she do what Nixon did? She actually burned her tapes, maybe not effectively, but she did. Is she involved in a cover up?

RS: Well, again, I’m just getting this news as you’re getting it, so I don’t know all the details. But from what I see, this is a clear case that there were emails that she did not want to make available, and she, against the law, withheld them from the public and from folks who requested it. So that is, to me, that is the definition of a cover up, when you’re required to release this information and you don’t do so.

HH: And so do you expect the Washington, D.C.-Manhattan elite media to press her as hard as they pressed Nixon and Ollie North?

RS: Of course, not. The interesting thing here is that it is the press that wants to find out this information. So that anytime you’re dealing with withholding information, the press tends to be a little tougher on the other side than normal, than it would be on a policy issue. But this is an issue of disclosure. And indeed, the media can be tough on Democrats on this front. So let’s just hope that they are somewhat fair in trying to find out what the substance here is, and whether it’s relevant or not.

HH: Last question, I know you’re not happy with the debate rules, but what do you think about using that first debate to influence the second, what I call the kiddie’s table debate? Is that an opportunity for Rick Santorum to get more time and attention?

RS: Well, you know, I don’t know what debate we’ll be in at this point, and frankly, as you heard me say, I think it’s the national media trying to influence this process. And they can. They not only influence it by who’s going to be in the debate, but who’s going to get a lot of airtime on their stations before the debates so that it’ll drive the numbers for national polls. So they’ve really taken away from Iowa and New Hampshire and South Carolina the role of picking candidates early. And I think that’s the biggest issue here.

HH: That’s why you’ve got to keep coming back here. We’re on all over South Carolina, and we’ve added New Hampshire.

RS: Okay. Keep calling, and I’ll keep going on.

HH: All right. Rick Santorum, always a pleasure, thank you for spending so much time with us, Senator.

End of interview.


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