'Courting Disaster': The Liberal Court Decisions that Are Destroying America

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Pat Robertson talks with the ACLJ Chief Counsel Jay Sekulow about the Senate filibusters that are stalling judicial appointments.

PAT ROBERTSON: Jay Sekulow of the American Center for Law and Justice is with us now. Jay, it is unprecedented for one senator to go to court to object to the interim appointment of a judge.

JAY SEKULOW: It's never happened. Sen. Kennedy is really the motivating force behind this. The critical aspect of this is whatever the Department of Justice says, or the American Center for Law and Justice says, is great, but let's hear what the Constitution says.

The Constitution gives the president the authority to make recess appointments, whether it is in the judicial branch, or it is in the executive branch. Sen. Kennedy doesn't like Bill Pryor's judicial philosophy, and, therefore, he thinks that's a basis upon which he brings this suit -- to try to cloud the issue up.

ROBERTSON: Is this going to blow up in his face? It looks like all this will do is, once again, aggravate the problem of these filibusters that have been going on. These Democrats are not allowing any votes on any of these judicial appointments.

SEKULOW: Well, the perfect example is Bill Pryor. If they allowed an up or down vote on Bill Pryor, he would be confirmed as a judge on the U.S. Court of Appeals with a life appointment. He has the votes.

ROBERTSON: He has at least 55 votes.

SEKULOW: That's correct -- somewhere between 53 and 57, actually, for Bill Pryor. Sen. Kennedy and his colleagues have created this problem. We said in our brief, by the way, look, Sen. Kennedy created this. He's the one who is behind the filibusters, he's pushing it with a minority of the senators in the United States Senate, and they're changing the whole policy.

ROBERTSON: Kennedy, if I recall, flunked out of school. He had that awful mess in Chappaquiddick. He's been a philanderer and a near-alcoholic. Is he like a puppet, with somebody else pulling the strings?

SEKULOW: He is, clearly, no doubt about it, when you go to these judicial committee hearings and you see it. He is the spokesperson, he and Sen. [Charles] Schumer [D-NY], but much more so, I think, Sen. Kennedy. He is, if you will, the one they put up there as the 'go to' guy. Now, what is interesting here, the dynamic of this behind the scenes, is this: they are doing everything they can to make sure that conservative Christian, potentially pro-life as they view it, judges are not confirmed to the courts.

They want the balance to tip, as it is right now, in their favor. The idea of a Bill Pryor or a Carolyn Kuhl or a Janice Rogers Brown -- these nominees scare them because they are so good. They are great judges, ones that could serve 30, 40 years once confirmed. That's a lot of what is going on with this.

ROBERTSON: Isn't this going to backfire on him? It seems like the American people are sick of this. There is a hot race with [Tom] Daschle. Daschle has been 'Doctor No' over and over again, blocking what the president wants.

SEKULOW: It is going to play very big in South Dakota. I'll tell you something else. As Zell Miller said, how do you explain to the folks at Walmart that a nominee that has the votes can't get an up or down [vote]? How do you basically say that to the American people? The answer is you can't.

I think what Sen. Kennedy was hoping here was that this fight to try to get Bill Pryor removed would go unnoticed, and instead, what's happened is the exact opposite. We are talking to millions of people on this broadcast. There are a lot of individuals, and lawyers, upset over the way this has been attacked, and the way Bill Pryor has been attacked.

ROBERTSON: Does he have a chance to win the case?

SEKULOW: I don't think so. I think Sen. Kennedy will lose, and I think, as you said, this is a tactic that will not work out well for them. It will galvanize the American people, and hopefully the United States Senate, to restore the Constitution as it's supposed to be: 51 votes up or down and that's it.

ROBERTSON: I have a book that you have been gracious enough to assist in called Courting Disaster, and it's going to be out in September. This is going to be the major issue for evangelicals in this campaign, I think, the course of the federal judiciary.

SEKULOW: Pat, no doubt about it. With this election and just what's happening right now, the courts are the issue. It is the Supreme Court of the United States. The next president of the United States probably selects, my estimate would be, a minimum of three justices to the United States Supreme Court.

That tips the whole balance, for probably the rest of my legal career, because you are normally appointing people in the 40s. They serve for 30 or 40 years. So this is a significant issue. Your book does address the heart of what this is all about. What is it, that the courts have taken so much authority? And they taken tremendous authority. But we can't abandon that. We have to continue to litigate them.

The fact is, we don't like the authority they are taking in many cases, but that doesn't mean you can abandon it. Sen. Kennedy, in the Bill Pryor situation, is saying, I don't like the nominee's judicial philosophy and I will get him out --even though the president exercises constitutional authority.

ROBERTSON: I've got about 165 legal citations in this book, and when you see the arrogance of the Supreme Court over the years, and how they have taken democratic processes away from us, and ripped them away from the American people… we have this unelected oligarchy.

SEKULOW: That's what Thomas Jefferson talks about, and others -- I mean, the founding generation was concerned about this. You have what Justice Scalia said in the opinion. In fact, it's in the beginning of your book. [He said], 'I am living in a country with a Constitution I don't recognize anymore.' He said it right.

The whole balance of government, the way it's supposed to be -- the co-equal branches that we learned about in high school -- has really been removed and blurred significantly. You saw that in Massachusetts, with the Supreme Court there, on the marriage issue.

You are seeing it in other courts on other cases, acts of Congress thrown out automatically these days, as if they don't matter. I think that's where this trend of the judges makes such a difference. That's why the case involving Bill Pryor is so important.

ROBERTSON: Judicial Restraint. Ladies and gentlemen, you can look for Courting Disaster. I think you will find it very interesting. I started off with a fictional prologue about the Oracle of Delphi. I think you will find it a fun book, but beyond that, it gets into very serious legal issues, and we wrestled with the major, major ones.

SEKULOW: The biggest issues that the country is facing in the courts.

ROBERTSON: This case is just one of them. You sent out a million pieces of mail?

SEKULOW: We are letting everybody -- our constituents and friends around the country -- know about this. Briefs have been filed. We will probably get a decision on this in late September. Bill Pryor is sitting, he's issuing opinions, he has been a tremendous judge, and he will continue to be.

ROBERTSON: An outstanding judge. He's a Roman Catholic, a dedicated Roman Catholic, and a very wonderful person. Ladies and gentlemen, that is what is happening to our nation. We appreciate what Jay and the American Center for Law and Justice is doing. It is fabulous.

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Jay Alan Sekulow is Chief Counsel for the American Center for Law and Justice (ACLJ), an international public interest law firm and educational organization. He is also Chief Counsel of the European Center for Law and Justice (ECLJ). An accomplished and respected judicial advocate, Sekulow has presented oral argument before the Supreme Court in numerous cases, in defense of constitutional freedoms. Sekulow serves as faculty member in the Office of Legal Education for the U.S. Department of Justice.

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