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RUSH: One of the things that’s coming up next Tuesday is the confirmation hearings for Judge Roberts will begin, and Patrick Leahy did something strange yesterday. He actually went off message. He did two things strange. He called Roberts back for a second meeting, and he gave him a letter, a memo and he said, “I’m going to ask you about this,” and I’ll give you the details about this in just a second, and then he also said… This is where I have to think that… I’m not even sure if what I read is right, but Leahy said that he’s not going to ask any judge how they would rule on any issue, because any judge that would tell anybody how they’re going to rule on an issue before the issue or a case has come before them, why, Leahy says any litigant that would appear before the court with a judge on it like that, would have no service whatsoever. The judge’s mind would already be made up. “Why should I even argue my case?”

Now, I cannot believe Patrick Leahy said this, and I will guarantee you that he is being stared daggers by Barbara Boxer and Dianne Feinstein who have already been out there saying, “You’re damn right he’s going to answer questions. He’s going to answer questions about Roe vs. Wade. He’s going to answer questions about privacy. He’s going to answer all kinds of questions.” Yeah, something is still up on this. You know, Leahy didn’t go off message by accident. (sigh) Something is up, and we’re not going to know what it is ’til the hearings start. For example, the Washington Post today has a column by E(ugene) J(oseph) Dionne, Jr., and it’s titled, “The Democrats’ Supreme Conundrum.” You know what a conundrum is? What is it, Mr. Snerdley? Well, it’s a dilemma with more than two options. A conundrum is a multiple dilemma, for those of you in Rio Linda, and so it’s not, “Here, you have a dilemma. You go one way or the other way.” The conundrum is, “Which way do I go?”

“Reports that Senate Democrats are deeply divided over how to deal with the Supreme Court nomination of Judge John Roberts both over simplify what’s happening and underestimate the conundrums the Democratic Party faces. The Democrats are less divided than they are uncertain. They worry about doing too little to challenge Roberts but they also doubt their capacity to stop his nomination.” Now, this is right on the money. Do you understand the way we’re currently structured in the Senate, we’ve got 55 Republicans and we’ve got 45 Democrats? Well… Yeah, 45 Democrats. I know there’s some wayward Republicans, but on this nomination have you heard of a Republican defection yet? I haven’t. It’s too soon to know that there won’t be, but on a straight party-line vote the Democrats don’t have a prayer of stopping the guy — unless they go filibuster. I’ve rethought that.

If they thought there were political gains to be made by going filibuster, they would have done it already. I know they tried to maneuver Republicans into triggering them instituting their filibuster, but it’s like people who supposedly are in a position of power and yet they don’t use it. Well, maybe they didn’t have the power we all thought. Well, they have come to the realization here that they are not the powerful majority in this Senate — and even if all of them, even if all of them line up and say, “We oppose this guy,” are they going to be able to get enough Republicans to help them filibuster? I think that’s where their conundrum is, one of the arms of their conundrum.

“Most Democrats are certain that Roberts is significantly more conservative than Sandra Day O’Connor, but they wonder whether that alone can justify a full-fledged fight against him, let alone a filibuster. Many Democrats are frustrated over the difficulty of establishing exactly what kind of conservative Roberts is — or in the case of liberal groups firmly opposed to his nomination, of proving that Roberts is still the conservative ideologue who emerges from his memos as a young Reagan administration official on matters such as civil rights, disability rights, and the right to privacy.” Now here we’re back to this same old thing that I talked to you about recently: this arrogant superiority. The difficulty of establishing exactly what kind of conservative Roberts is? “Maybe he’s not a racist and not a sexist, but he could be a bigot and a homophobe.

Maybe he’s not a bigot or a homophobe; maybe he’s a racist and a sexist, and we know he’s got confederate sympathies because of what he wrote about Civil War and we know he didn’t grow up around my blacks or Jews (whispers: “Jews.”) in his neighborhood.” This is the thing that irks me: This arrogance, this sense of dominance, this sense of liberals and liberalism as a given and conservatives and conservatism as almost a crime — or at least something of which to be suspicious. “Well, you know, we know he’s a conservative, therefore we know his guilty. We just don’t know of what,” and, you know, it’s something that’s taking them down the tubes and the quicksand pretty quickly.

“Roberts would not only immediately shift the balance on the court,” writes Mr. Dionne, Jr. “He’s also a potential nominee for chief justice, a post in which his political skills could allow him in tandem with another Bush appointee to create a powerful conservative court majority for a generation.” How come nobody worries about a powerful liberal court majority for a generation? Notice how that’s just, “Well, that would be assumed to be natural! That would be fine. Conservative majority, why, why, that would be letting those people in! We can’t have those people running the show. Why, what are they going to do? They’re going to set us back; they’re going to stop our progress and so forth.” Down deep in the column, here’s the real crux of the conundrum: “Democrats are also under pressure from their liberal allies to challenge Roberts by way of clarifying what they stand for. One of the worst consequences politically would be for the majority of Democrats to vote for someone who in the near future would overturn well-established precedents on clean air, clean water, privacy, equal opportunity, and religious liberty.”

That’s Ralph Neas, and that’s just the biggest bunch of… “Well-established precedents on clean air,” as though conservatives want everybody breathing dirty air and drinking dirty water and don’t want anybody to have any privacy, and don’t want any to have opportunity whatsoever. When in fact if you study, who is it that stands in the way of equality? It’s liberals! Try being a conservative around a liberal and find out how much equality you have. Try being a conservative student in a liberal classroom, find out how much equality you have.

Try being a conservative on any college campus or in many cities and just try speaking your mind and see how much freedom you’ve got, and then take a look at the equality and the tolerance that they claim that they possess, own, and represent — and talk about religious liberty? Who is it that’s trying to shut that down? You flash a cross at them, and you may be showing Dracula the cross. You put a nativity scene up in the middle of town, who is it that shows up and says, “You can’t have that,” and tries to tear it down? It’s not the conservatives of this country that do anything like that. It’s the left, with it’s political correctness, and it’s, again, air of supremacy and arrogance. Only what they approve of will be considered normal and allowed. But the bottom line s the Democrats are scared of their own kooks — and Helen Thomas, by the way, to change subjects.

Helen Thomas, that dingbat, former White House correspondent for the UPI now has a column out saying if Democratic presidential candidates don’t come out against the war, and embrace Cindy Sheehan, they’re going to lose big and deserve to lose. So here you’ve got E. J. Dionne, Jr., wondering (summarizing): “Oh, gosh, if the Democrats on the judiciary committee don’t listen to the kooks, the Ralph Neases and all these other groups out there, ACLU, People for the American Way, whoever they are. They’re going to be hell to pay,” and this is the story to me, as I’ve been saying for the longest time, the story to me is the fracture of the Democrat Party and who’s going to end up running it, and you just will not find Democratic candidates who want to advance nationally and win elections anywhere near their base — other than at fund-raising time.


RUSH: Yesterday, as I say, Senator Leahy of Vermont had his second meeting with Supreme Court nominee John Roberts. He said he gave Roberts a copy of the so-called Bybee memo (story) during the meeting. It was the second meeting, and this was the case then: “Assistant Attorney General Jay Bybee argued in a January 22nd 2002 memo that the president has the power to issue records that violate the Geneva Conventions as well as international and US laws prohibiting torture.” So Patrick Leahy says he is going to ask John Roberts about torture.

LEAHY: It will be raised partly on the — to the question of to what area, if any, can a president be considered to be above the law, and I thought if he’s going to be asked questions on that, he could answer one of two different ways. He can answer specifically to the question, or you can answer by saying, “Well, I haven’t seen the Bybee memo.” So I thought I’d give him the Bybee memo.

RUSH: Oh, yeah. “See, that’s very funny. Here, I thought I’d trick him. I thought I’d trick him in advance. I’d give him the Bybee memo so he can’t weasel out of the answer to the question.” So you see where this is going. “What area, if any, can a president be considered to be above the law?” There is an implication that President Bush has been above the law, and they’re going to ask Roberts, “Are you going to tell us do you think he was above the law?” And, of course, they are hoping that Roberts will say, because he wants the job so bad, “I can see where some might think that this was above the law.” The headline the next day? “Roberts Says Bush Above Law!” and I wouldn’t put it past Leahy. Folks, I just want to tell you here — and this is a long shot, but I just want to get it out there and get it on record — do not be surprised if the Democrats try to disqualify Roberts on the basis that he has committed perjury.

Don’t be surprised if they try to ask him questions that are so off the wall and confusing, and one question one day by one senator, another question the next day by another senator on the same subject. Just don’t be surprised. I’m not predicting it, but I’m not going to be surprised if it happens. Now, last night Leahy went on the PBS NewsHour with Jim Lehrer, and Gwen Ifill was doing the questioning, and she said to Senator Leahy, “When you think about the things that you know that he has written and the things that you don’t know about what the White House has not been willing to release, do you think that somebody is trying to hide anything here?”

LEAHY: I worry about the things that suddenly get lost by the White House and maybe they’ll turn up; maybe they won’t. I’m not willing to just accept what they say about them. I want to see what they say, but I think they do Judge Roberts a disservice by holding things back, especially those areas that reflect what his judgment and what the law should be — not just what the law is, but what the law should be.

RUSH: You know, this never happens when a liberal judge is nominated. There’s never any of this hand-wringing. The left gets just scot-free away. The right never — and the reason is that the Democrats comes at this as though we’ve got a suspect here. We’ve got a potential criminal that has been nominated for the Supreme Court. We’ve got to find out his guilt! We have to discover his guilt before it’s too late — and what’s his guilt? The way he thinks. What’s his crime? The way he thinks. His crime is what he’s written, and somebody’s trying to conceal that crime from us. That’s what Leahy is saying. Well, we’re going to dig deep and we’re going to find this crime because we know there’s been a crime committed! And why? Because he’s a conservative. That’s why he’s a suspect.

So this is what they’re setting up: torture. Leahy did say yesterday that he’s not going to ask Roberts to comment on one case that might come before him. He says, “If a litigant comes before the court no matter what my color and so forth, if I make the right argument, a strong enough argument, I can be heard. I can’t be heard, I don’t have a chance, if a judge has already said how he’s going to rule in a case so I don’t think any judge ought to have to answer that.” That’s Leahy. Other Democrats will take care of that for him. He’s going to go after torture.


RUSH: So Senator Patrick Leahy wants to ask Judge Roberts, “When can the president be above the law?” We already know the answer to the question. If I were Judge Roberts, I would say, “Well, President Clinton has shown it’s possible. Bill Clinton has definitely shown it’s possible for presidents to be above the law,” and then watch the fireworks. (Chuckle) They may bring in a defibrillator for Senator Kennedy right there in the hearing room, either that or a bottle of scotch. Here’s Senator Leahy, one more time, with Gwen Ifill on the NewsHour with Jim Lehrer. She said, “When you said that you had concerns about John Roberts’ stand on civil rights, what particularly are you talking about?”

LEAHY: Well, I — eh — I wa — ah — I want to understand that he really cares about, uh, affirmative action, cares about equality. I want to make sure he understands there is a lot of discrimination in the United States today. We have laws that try to redress that, and is he going to be open to the application of those laws.

RUSH: You know, Leahy, he’s already announced he’s against Roberts, right? (interruption) He hasn’t? I thought he is he was going to vote against him anyway. I thought he had. Well, anyway who cares what Leahy says? He’s from a white Christian state, Vermont. (whitest state in the union) He doesn’t represent the American people. You know, he claims to have all this concern about civil rights, and Roberts grew up in Long Beach, Indiana, and there weren’t any blacks or Jews (whispers: “Jews”) in his neighborhood. Well, where’s Leahy from? He’s from Vermont! How many miles do you have to drive to find an African-American in Vermont — probably quite a few — and on which road?

I mean, the whole thing is condescending anyway. The arrogance and condescension! “Well, you know, I want to understand, he really cares about affirmative action; he cares about equality. I want to make sure he understands there’s a lot of discrimination,” like he’s some 18-year-old kid that’s come out of the average American public school. This guy, Roberts, could run rings around Patrick Leahy intellectually and every other which way. He has to sit there — and you watch. He’s going to have to sit there and act subservient and all this sort of stuff, do what it takes to get the nomination.


RUSH: I want to listen to this sound bite from Senator Leahy again and make a point that I should have made when I first heard it. This is from PBS NewsHour, Jim Lehrer with Gwen Ifill doing the questioning last night, asking him about what concerns he has with Roberts on civil rights.

LEAHY: Well, I — eh — I wa — ah — I want to understand that he really cares about, uh, affirmative action, cares about equality.

RUSH: Stop the tape! Right there is a major flaw. Affirmative action is not equality. No, it isn’t, folks. Don’t sit out there and shout at your radios at me. Affirmative action is not equality. Affirmative action penalizes somebody on the basis of their skin color, mostly for actions they have never taken, and elevates somebody else because of their skin color, pure and simple. There’s nothing equal about affirmative action, no matter who’s talking about it.

“But we’ve got to redress past grievances, Rush.”

Well, okay, when you going to draw the line and say, “Past grievances have been addressed and everything’s been equalized, now we do away with it”?

“Well, we’re never going to do away with it.”

Why not?

“Well because we’re not! Because it’s a political issue for us.”

Of course it is. Affirmative action has nothing to do with equality. This is what John Roberts understands and that Leahy doesn’t. Now, Mr. Snerdley, this story here, this is why I have been convinced that Leahy says he’s going to vote against Roberts. This is this story from the Associated Press that’s back on July 27th, and this is shortly after Roberts was nominated. “Top judiciary committee Democrat Patrick of Vermont said that he will vote against Supreme Court judge nominee John Roberts if the judge seems likely to pursue an activist philosophy.

Denouncing conservatives on the current court, Leahy said, ‘They’ve struck down parts of the Violence Again Women Act, environmental acts, child safety legislation. They’ve knocked all these down basically writing the law themselves. I want to find out if he’s going to be active as this, as people like Scalia and Thomas who have almost willy-nilly overruled things.'” Well, if he’s like Scalia and Thomas — he is — he’s going to vote against him. That’s what he said, so that’s why I thought he was on record as saying it.

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