FOX News Channel "On The Record" - Transcripts

Interview

VAN SUSTEREN: Senator, nice to see you, sir.

SEN. JEFF SESSIONS, R- ALA., JUDICIARY COMMITTEE: Thank you. Good to have you in my offices.

VAN SUSTEREN: Well, I appreciate it. We sort of -- we always sort of invade your office, so it's nice to be here.

(LAUGHTER)

VAN SUSTEREN: Last time around, when Elena Kagan came up for solicitor general, you voted no to confirm her. What would she have to tell you now, or what would have to change in order for you to vote yes?

SESSIONS: You know, I'd have to deal with the military exclusion from the Harvard campus when she was dean. That was something that did concern me because I was involved in passing the legislation that required the admission of the military on campus. I think she'd have to deal with that.

And secondly, there is afoot in America a philosophy of judging that I think is dangerous to the Constitution. It suggests that a judge can consider evolving circumstances and things outside the Constitution to redefine its meaning. So I believe any good judge should be faithful to the words and text of the Constitution.

VAN SUSTEREN: All right, let me talk about the military aspect first. You grilled her about "Don't ask, don't tell" last time she was here. Do you intend to ask her about that this time?

SESSIONS: She was asked about that last time, and I made some remarks about it on the floor...

VAN SUSTEREN: I guess "grill" is my term. I -- "grill" is my (INAUDIBLE)

SESSIONS: But she'll need to answer that because I think it's not a small matter. And when she was a dean of Harvard, we had 900 people killed in Iraq and Afghanistan, and they were not permitted to come on the Harvard campus to recruit JAG officers because she believed that President Clinton's "Don't ask, don't tell" policy was wrong. And I could see her disagreeing with it and disagreeing with the policy. But to block these wonderful men and women from being on the campus of a great university like Harvard I think was a step too far. And so I think she'll have to deal with that.

VAN SUSTEREN: Could she? I mean, is it theoretically possible? Did you have insufficient time to question her or she had insufficient time to answer, so that this second round, as she gets nominated for the Supreme Court, that -- that there's -- the door's open on that issue with you?

SESSIONS: I think she should be given a full chance to explain it, and she will be given that chance. And her whole record should be looked at, and it will be looked at more thoroughly this time. You know, I think that hearing last time was just a week or 10 days, two weeks from the nomination. It was a pretty quick hearing. And I'm not sure when -- this one will be a lot more in depth.

VAN SUSTEREN: You know, I'm sort of curious how the Senate is going to deal with one particular issue, is that there's a lot of national attention on this health care bill. And it's in the trial court down in Florida, but it's going to make its way to the United States Supreme Court and it's going to hinge on how the commerce clause is interpreted. Someone who interprets its broadly will say that the statute's constitutional. If it's narrowly, then the statute probably is not constitutional. Do you ask her about the commerce clause or not? Or do you expect to?

SESSIONS: I think she will probably be asked about the commerce clause and how far it reaches and how it should be interpreted. I think she should be able to give some general statements about that.

But I -- one thing we've got to know, that if President Obama appoints her and she sits on that Court that she shouldn't have any hesitation to reverse any part of any legislation that he worked to pass if it's not constitutional or if it's defective. So we'll need to know she's independent. Mr. Gibbs said the other day that the president looks for results-oriented judging, and that's troubling because a judge, you know, should be objective and hear both sides of the case and render an objective opinion. So I think objectivity, not being a rubber stamp for the administration, will certainly be an issue to raise with her.

VAN SUSTEREN: Is there any sort of other burning issue that you didn't get a chance to ask her last time that you think is fair chance now, or you -- or you -- for some other reason didn't ask it last time but now you want to ask her?

SESSIONS: Well, I think we'll want to know whether or not she can set aside her political beliefs. Her demeanor and style is friendly and collegial, but she's been a very aggressive liberal Democrat, not a mainstream Democrat so much as an activist Democrat. And I think we need to be sure that she can separate that but -- from...

VAN SUSTEREN: How does she tell you that, though? Instead of just saying, No, I'm just going to do the job, I'm just going to apply the law? I mean, how does a candidate impart to you an ability to simply follow the law, other than just saying, I will?

SESSIONS: That's a good question. If you're a judge, you've got a record. If you've practiced law for a long time and have a record of objectivity and being able to handle those kind of things in a fair way, I think that creates a record. But she doesn't have that kind of record, so we'll have to ask her about it. But you're right, it's pretty easy for a judge to say, Well, I'll follow the law, or, I'm going to be fair. And each senator would then have to, you know, evaluate honestly how they feel about that response and whether it's satisfactory.

VAN SUSTEREN: Senator, thank you, sir.

SESSIONS: Thank you.

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