Jay Sekulow on High Court Nominee Samuel Alito

CBN.com – Jay Alan Sekulow is chief counsel for the American Center for Law and Justice (ACLJ), a law firm and educational organization specializing in constitutional law. He is also chief counsel of the European Center for Law and Justice (ECLJ). Sekulow serves as a faculty member in the Office of Legal Education for the U.S. Department of Justice. He has presented oral argument before the U.S. Supreme Court in defense of constitutional freedoms. Pat Robertson recently sat down with Sekulow to ask him about Samuel Alito’s qualifications and whether or not Alito will be confirmed as the next high court justice.

PAT ROBERTSON: Jay Sekulow is with us now from the American Center for Law and Justice. You have a smile on from ear to ear, Jay. Why?

JAY SEKULOW: This is, everybody is using a baseball analogy, a grand slam. If you look at the cases that Sam Alito has put forward as a judge for the last 15 years -- on the abortion issue, he clearly ruled in our favor. Even in the famous Casey case, he actually was the dissenting judge. So on abortion, absolutely fantastic. You look at school prayer cases like the football game prayer -- he has consistently ruled in our position. You look at the federalism cases, how he ruled there. So on and on it goes. When you have cases like partial-birth abortion and parental notification, the Oregon assisted suicide cases -- all at the Supreme Court right now. Everybody is using this baseball analogy, a grand slam – just a fantastic person.

ROBERTSON: I read some of his decisions. He did stick with the O'Connor rationale in terms of Casey, though, of the government with the undue burden test.

SEKULOW: But what he said was that, ‘I am bound to do that.’ This has changed the law. He took the undue burden test and applied it completely different than the majority opinion. For instance, in Casey, what a lot of people overlooked was that a lot of the regulations and restrictions were held as constitutional. There were a number that were not. One of the ones that came up with this whole spousal notification issue, he dissented on that. He said that should have been constitutional, even under Justice O’Connor’s test.

ROBERTSON: I noticed in one of the decisions, he said, well, this meets the lemon test. You remember Scalia said it was a ghoul that should have a stake driven through its heart.

SEKULOW: Yes, a ghoul on a late-night horror show. Yes, and you are absolutely right about [what he said]. But again, he is a third circuit court of appeals judge. He follows the Supreme Court precedent. Lemon is the current law of the land. But I tell you, you just got the next vote to undo that test, without a question. If you look at his opinions and how he’s applied Lemon, he’s always come out on our position -- on literature distribution and student-initiated prayer -- consistently conservative.

ROBERTSON: Alito was editor of the Yale Law Review. With all due deference to my ex-alma mater, they had some pretty brilliant people in that class.

SEKULOW: [He was] number one in [his] class to be the editor. And something that’s been overlooked - a lot of statements were made about John Roberts serving and arguing before the Supreme Court of the United States, and Sam Alito [has had] 12 cases before the Supreme Court of the United States, as an assistant solicitor general. He has also served in the office of legal counsel, so he knows.

ROBERTSON: What we are talking about, teamed up with Scalia -- you are going to have some intellectual firepower that the liberals will not be able to stand up against.

SEKULOW: This is the strongest nominee that the President could have possibly put forward. Janice Rogers Brown, by the way, is also fantastic, and I think she will be a Supreme Court nominee one day. What Sam Alito had over the others is 15 years on the federal court. ‘This is how I’ve ruled in these cases,’ so there are no questions here. You are going to see uniform support in the conservative movement. This attempt to filibuster him will be ridiculous, because [his qualifications] – Yale Law School, Princeton undergrad, editor-in-chief of the Yale Law Review, 12 cases before the Supreme Court of the United States-- Sam Alito is going to be confirmed.

ROBERTSON: How fast?

SEKULOW: Not fast. We have a fight here now. This will be a big fight. The Democrats are going to be very aggressive. They know that the court has just moved to the conservative side significantly, with this nomination.

ROBERTSON: But that is what the president ran on -- ‘I’m going to get a judge like Scalia.’ Well, they call this man ‘Scalito,’ so how close can you get? That is the promise that the President made the American people. They elected him on that ground. There is nothing in the Constitution that says you have to have the advice and consent of the Democrats.

SEKULOW: That’s absolutely right. And the Republicans have the majority in the Senate. He is going to sail through the judiciary committee. Even if they voted on party-line votes, he gets through. And to draw the distinction between John Roberts and Sam Alito, they are going to be cutting some really fine lines. But we are going to have a real fight here, and a fight that well could go on for two or three months. We need to be prepared for that.

ROBERTSON: It is ugly.

SEKULOW: This could go into the first of the year.

ROBERTSON: I hope not. But it would reveal the Democrats, in this case, for what they are. And I think the American people need to understand what they are.

SEKULOW: And it’s an obstructionist group in there. Now I think that Lindsay Graham will be able to coalesce the ‘Gang of 14.’ I think Senator Graham will be able to do that, because this nominee meets all of the qualifications. You do not have all this educational background, judicial experience, and litigation experience and not be deemed qualified.

ROBERTSON: Jay, when you make a deal, you stick by the deal. They made a deal -- except under extraordinary circumstances, we will not filibuster. There is no way you can take a man who has been on the court the length he has, served with distinction as assistant solicitor general, and been editor of the Law Review at Yale, and say he is an extraordinary circumstance. No way.

SEKULOW: Confirmed unanimously by the United States Senate in 1990, when it was under Democratic control, and confirmed unanimously out of the Senate Judiciary Committee.

ROBERTSON: And praised by none other than Teddy Kennedy.

SEKULOW: And others who are still serving right there. This is a strong, strong nomination. Couldn't have been better.

ROBERTSON: Well, Jay, thank you very much for that.

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