Fred Barnes: How Alito Will Fare with the Dems

CBN.com – After 10 years as senior editor and White House correspondent for The New Republic, Fred Barnes founded The Weekly Standard. Today he serves as its executive editor. Barnes joined the FOX News team in 1996 as a political contributor. He is co-host of "The Beltway Boys" and a regular contributor to "Special Report" with Brit Hume, the number 1 weeknight political program on cable. Recently, Pat Robertson spoke with Barnes about the reaction to the Alito Supreme Court nomination, and where it goes from here.

PAT ROBERTSON: Fred Barnes is joining us from Washington. He is the executive editor of The Weekly Standard and co-host of Fox News’ “Beltway Boys.” Fred, it is always a pleasure to have you back. Don't the Democrats keep their word?

FRED BARNES: Not on this. Their talk of a filibuster - I don't think it will go anywhere. There are enough Republicans – Mike DeWine of Ohio, Lindsey Graham of South Carolina, even John Warner of Virginia, who are in that ‘Group of 14’ -- who will go for the nuclear option if Democrats try to filibuster on the Alito nomination. He is not an extremist. I don't think Democrats could pull off a filibuster.

ROBERTSON: They are talking about the general counselor of the ACLU a few years ago, and she was confirmed with only, I think, three negative votes. The group of Republicans voted for her because that is what you are supposed to do with the President’s picks for the Supreme Court.

BARNES: Indeed, in that case the court was moved to the left. And was also moved to the left with the other Clinton candidates, like Steven Breyer. Now both certainly had the credentials, but they were liberals and they did change the ideological balance on the court. Now Sam Alito would do the same thing - he would move it to the right. This is why presidents are elected. They campaign on changing the ideological balance on the court, depending on whether they are Democrats or Republicans. When Democrats act like it is unheard of that a nominee should be allowed to change the balance on the court, that's what always happens and should happen.

ROBERTSON: The bottom line is the Supreme Court of the United States shouldn't be the playground of special-interest groups, whichever stripe they come from. But it has become that. It is like a political game and like somebody is running for office. They shouldn't be.

BARNES: It really has become that, Pat. We have television ads and so on, although I think they don't have as much effect as you might imagine. They are out there, and the press covers them and in many cases put their hats on for free, and act as if they’re news. But it really comes down to the hundred senators. You saw what happened with Harriet Miers. What really got her in trouble were the private meetings she had with senators, and so many of them, particularly the Republicans, liked her a lot, but were not impressed by her judicial knowledge and bearing, and really thought she’d have trouble in the hearings, and she had to withdraw.

ROBERTSON: Alito is apparently brilliant. He has all of the credentials you could possibly ask for - a prosecutor of criminals. He has argued cases, 12 or so before the Supreme Court. I mean, he sat on the circuit court for 15 years. You couldn't ask for better vitae.

BARNES: Those are the greatest of all credentials. He has an Ivy League background. He is a perfect nominee. He is basically nonpartisan and a career lawyer in the justice department, as you suggested. But he's had some conservative rulings. With the Senate democrats in the mood they are in, anyone who is a conservative becomes a right-wing extremist. They have called him that already.

ROBERTSON: I read the Casey decision, where he was in the dissent. I read the case that the ACLU brought against the mayor of Jersey City, but I just don't see in his writings anything particularly extreme. He doesn't go near as far as I would like to go.

BARNES: In the Casey decision, of course, which involved abortion and limitations on abortion like a 24-hour waiting period and parental consent, what Judge Alito voted for on the Third Circuit Court of Appeals was upheld, with one exception, by the U.S. Supreme Court. He voted in favor of allowing or requiring in the case of a married woman, a spousal notification that the woman would have to notify her husband before having an abortion. Democrats seem to think that this is a huge issue, and that it would be the centerpiece of their attacks on Judge Alito. I don't think it is that large of an issue that they are going to make much headway on it.

ROBERTSON: Fred, I don't know about you, but I grew up in an age where a man wanted a male heir. If he had a son, that he helped make with his wife, he was looking forward to the birth of that son, so the son could grow up, take over the farm and family business and his name. To think that he does not have any voice in it is ridiculous. It is certainly the prerogative of the Pennsylvania legislature to say that these guys should at least be notified before their wife kills their heir.

BARNES: It makes sense to me. But the Supreme Court, with O'Connor being the swing vote, ruled that that represented an undue burden on the right to an abortion. Actually, she was not the swing vote. It was a 6-3 decision, actually.

ROBERTSON: Well, we are going to see how that plays. But I think some of the men, if they learn the facts - if all they do is listen to Chuck Schumer saying how extreme he is, then I wish people would read these decisions. I didn't see anything to indicate he would overturn Roe v. Wade.

BARNES: No, I don’t either. A lot will depend on how well Sam Alito does in the hearings. Remember how dazzling John Roberts was? I think Alito will be more like Roberts than we really, or many have imagined. He is scholarly and not one with sharp political opinions that anyone knows about. A judicial conservative, he has argued a dozen cases before the Supreme Court. I think he will be able to handle anything they throw at him on the judiciary committee.

ROBERTSON: Want to give some odds on his confirmation?

BARNES: I think it is almost a slam-dunk. Look, there is a formula, Pat, for getting confirmed, and unfortunately, Robert Bork, who I think would have made a great Supreme Court justice, didn’t follow it. And that is to say as little as possible and take an expansive view. And this is particularly what Justice Ginsberg did - almost anything that came up, she said, ‘Well, no, I can't talk about that, that might come up before the court.’ If you do that, you have a good chance of getting confirmed, because you really don't get in trouble for what you don't say.

ROBERTSON: From a man who has been in the Beltway. Thank you, Fred. Appreciate you being with us.

BARNES: You're welcome, Pat.

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