Kelly Ayotte: Holder Absolutely Wrong on KSM Trial in NYC

In a race for the Republican US Senate nomination to replace New Hampshire’s Judd Gregg, former Attorney General Kelly Ayotte sat down with Human Events’ Jed Babbin and John Gizzi and intern Matt Hadro. Here’s an edited transcript of the interview. [After the interview, Ayotte signed the H.E. petition to keep Khalid Sheik Mohammed and the al-Qaeda varsity in military tribunals. She’s running a radio ad on the same subject.]

Jed Babbin: Thanks for taking the time to chat with us.  Let’s start with your tenure as attorney general of New Hampshire. What do you think were your major accomplishments as attorney general?

Kelly Ayotte: Well I was the chief law enforcement officer in and worked very closely with law enforcement in our state.  So I think, fortunately, the last two years I served as Attorney General of New Hampshire we were the safest state in the nation. I came out of it as a prosecutor, so while I was Attorney General, I think we vigorously pursued murder cases and public corruption cases and handled those matters very well on behalf of the state, in making sure people were safe and people were held accountable appropriately.

I also think I took a particular interest in protecting children, so I work with the legislature to improve our laws, to make sure we have tougher laws to protect our kids on the internet and sexual predators. And also, in that regard, making sure that we had the strong drug laws in place to deal with, you know, at the time methamphetamine was a big drug that we saw devastating the west coast, we were concerned that it was going to end up in the east coast, so passing tougher laws and also educating the public on those issues was a focus of mine as Attorney General as well.

JB: What about the Parental Notification case? Tell us how that ran. What were your thoughts while that was going on?

KA: One of the rules of the Attorney General is to defend the law of the state of New Hampshire, and that law was passed by the legislature—Parental Notification law—and the case was challenged in the federal court system by Planned Parenthood and the ACLU. And so when I took over as Attorney General, it was in the First Circuit Court of Appeals, and so I shepherded the appeal in the First Circuit, and then I had to make the decision, when we lost in the First Circuit, and the First Circuit said that the law was unconstitutional, whether I’d file a petition for cert in the United States Supreme Court, and I decided to do that because this was clearly an issue of constitutional proportions, and I felt that my vigorous defense of the law warranted filing a petition for cert. At the time I did that, the governor actually–we had a new governor, I was originally appointed by a Republican governor, we had a new Democratic governor who had come into…

John Gizzi: John Lynch.

KA: John Lynch. And he actually disagreed with the law. So I was in the unique position where I filed a petition for cert, and you know, the Supreme Court accepts so few cases, accepted this case, and I ended up arguing the case before the Supreme Court. But the governor actually filed a brief on the other side of the case against me. So, you know, that’s sort of how the case went forward. But my role, from my perspective, I pursued that case, because I feel like the Attorney General job was to vigorously defend the duly passed law of the state of New Hampshire. And that’s what I did in that case…

JB: What do you say to people who now say that Kelly Ayotte is pro-choice? I mean, it doesn’t sound to me like that would have been consistent with what you did as Attorney General, although I understand the professional obligation.

KA: Oh, well you know, my pursuit of the case in the Supreme Court was based on what I felt my duty was as Attorney General. But I am pro-life. That’s my position on the issue. And I think that parental notification laws do make sense.  And, you know, when you think about—I’ve got two kids. Certainly, you know, having something like that, if my daughter were in that position, I would want to be in a position to be there as a parent for her.

So I think that those laws make sense. And, you know, you can’t even give a child an aspirin in school without a parent’s permission.  And to have a minor, a young woman undertake an abortion without their parents involved… I think it’s just a matter of common sense that those types of regulations are important.

JB: Did you get a result at the Supreme Court yet?

KA: I did. It was actually unusual for an abortion case, because it was a 9-0 decision, and Sandra Day O’Connor was the author of the decision. I think it was one of her last decisions before she left the court. And the decision was to remand—reverse the First Circuit Court of Appeals decision, and to remand the case back to the lower courts, to try to preserve the law without striking the entire statute down. The issue was whether in emergency cases whether the Court could preserve the rest of the statute. So yes, you can’t enforce it in an emergency health situation, but otherwise the statute could stand. So what ended up happening is the legislature, in the intervening period, actually repealed the law. So I prevailed at the Supreme Court…

JB: You won as far as you could…

KA: Yes, I did, and then when we got it back to the lower court, the legislature, which, you know, is what happens in a democracy—they repealed the law because they disagreed with it.

JB: In terms of the Second Amendment, we’ve got the DC v. Heller case that came out last year, we’ve got McDonald v. Chicago argued this morning in the U.S. Supreme Court.  That’s one of the reasons Matt’s in here, he’s been doing research for us. Should non-federal jurisdictions be able to restrict things that say the District of Columbia couldn’t. Do you think the Second Amendment should apply to state and local governments?

KA: Absolutely, I think it’s incorporated to the states. I, as Attorney General, I signed on the Heller decision on the side of the fact that it’s an individual’s right to bear arms. And why should people in the states or localities be treated any differently than the people in Washington, D.C.? That doesn’t make sense, if you have an individual right to bear arms. Also, before I left the Attorney General’s office, the issue in the Chicago case came to the point where we were petitioning the Court, where they had filed the petition for cert, and I signed on, on the side to say to the Court, ‘take the case.’ Because I think that it is absolutely a right that is incorporated to the states. So at that point, the decision hadn’t been accepted yet, that I was saying this is an important decision to take. So I firmly believe that the Court should find that the individual right to bear arms applies to state and local governments, and they shouldn’t be able to restrict a person’s right to bear arms any more differently than they were standing in Washington, D.C.

JB: And at the risk of gilding the lily, you’ve used the term ‘individual right,’ so obviously you believe this is some right that vests in the individual, not necessarily the militias, or state police, or…

KA: No, I think it’s an individual right to bear arms, and I think also particularly in New Hampshire, we, in our state constitution, or one of the states that have expressly put in our state constitution that there is an individual right to bear arms. And so, while I believe it is in our federal constitution, in New Hampshire, in our state constitution it’s something that we have said absolutely.

JB: Let’s run down a couple of other things.  One of the things that we look at is candidates’ thinking on judicial selections. In terms of the federal judiciary, that’s one of the ways that a President can, with the least interference from the Senate, from the Congress, do change America. What are your thoughts on people such as Justice Sotomayor? Were you supportive of her, were you opposed, are there troubling things about her that still worry you?

KA: Well, you know, one concern that I have overall about the confirmation process is I think it’s been a very politicized process. And the Supreme Court, frankly, should be above partisan politics. And you have an important duty as a United States Senator to have advice and consent on the President’s nominations, and it’s an important duty. But I also think that we can’t over-politicize that process. But I’ve seen it happen, and I think we’ve seen it, whether it was through Justice Bork’s looking at what movies he was going to look at, or Justice Alito, what group he belonged to in college—to me, I think that that process has gotten a little out of control. And the first role of a Senator is to look at someone’s qualifications.

Now, with respect to Justice Sotomayor, I frankly—if I were president, she wouldn’t have been who I would have nominated. I think that there are many issues that she and I would have disagreed on. But when I looked at her overall record, and I looked at her qualifications, I felt that she was qualified. And her overall record, she was certainly left-of-center, there are things we would have disagreed on. But I think that I would have approved her nom—

JG: Eminent Domain?

KA: Also, and obviously the Ricci case, and you know, those are areas where I would disagree with her. I think that, though I probably would have voted for confirmation, because I don’t think that we should apply a double-standard, we can’t put—it’s important that we look at people who are going to adhere to the Constitution, but she was left-of-center–I don’t think I wouldn’t have nominated her for if I were President, but I didn’t appreciate when the Democrats did things to Justice Alito, or whether it was Justice Bork that were inappropriate, and I don’t want to apply a double-standard…

JG: Thomas.

KA: Or Thomas as well, exactly. And so in my view I wouldn’t apply a double-standard. And so I think she was qualified, while I didn’t agree with some of her ideology, I don’t think that we should always be putting ideology above qualifications.

JB: One final question on that—the thing that troubled me—

KA: I share a similar view, I guess, to Pat Toomey on this.

JB: The thing that troubled me most about her was in some of her speeches and some of her writings…

KA: Like the ‘wise Latina’ comment.

JB: Right. The comment, though, was really not even the most difficult part of that speech, for me. There was another one I’m paraphrasing here. But she basically said that a judge uses his or her history, or personal history, racial history, to choose the facts on which a case is decided. That hurt me down to the core. I don’t think that justice should be seeing the facts through any filter of race, or gender, or whatever. Would you agree with that, or agree with her, or…

KA: I totally agree that a judge should not be looking at–the law needs to be applied evenly, and I don’t it should be looked at through a gender filter or a religious filter, or a background filter. It needs to be looked at. Apply the law, you’re there to apply the law. And so I think that she, if you look at her record overall, which in fairness to her I think you need to do, she ruled on 96 cases I believe that had some issue involving discrimination, and ten of them she found discrimination, nine out of the ten were unanimous, and so, you know I think in fairness, I did look at her record overall, and I didn’t agree with her comments on that, I think she was very much questioned about those comments at the confirmation hearing, and explained that she was going to apply the laws straightforwardly.

JB: Your Attorney General experience probably has not involved you a great deal in state budgets, things you might have…

KA: Not, not really, not so involved, because you have an Attorney General budget…

JB: Sure but you’re not the person crafting the budget for the state…

KA: No, no generally not.

JB: Well, if you get elected Senator, you’re going to be landing here in the middle of the biggest spending tsunami the world has ever seen. What’s your view of President Obama’s track record so far—the TARP, the stimulus, the nationalization of the automakers? Two-part question: Number One, can we sustain this spending course, and if not, what do we do about it? And Number Two, do we have a need, urgent or otherwise, to get government out of the business of owning business, whether it’s financial or automakers, or whatever…

KA: Well, this is why I’m running for Senate. I mean, this is the fundamental issue that I think is facing our country. I do have two children, I think that we not only owe all of us a duty here but to give them opportunities that we had—we have a crushing debt in this country of $12 trillion.  We’re running, you know, right now a $1.4 trillion deficit, it’s close to $1.6 trillion next year—and under the administration’s budget going forward, we’re running over-trillion dollar deficits going forward.

The bottom line is we can’t sustain it. And, you know, I think that, from my perspective as a member of a middle-class family, it doesn’t take a PhD in Economics to figure out that you can’t spend twice as much money as you’re taking in. And it is going to have a long-term impact on our quality of life, and also our long-term economic growth, so when we talk about our economy getting back on track, getting our fiscal house in order is a critical issue to our quality of life in this country.

And that’s why I’m running. Because I think we’re going to have to make some very difficult decisions, I think we’re going to have to look at the spending side in government, and rather than the trend that we see right now, which is, you know, my sense of what’s happening in Washington is that the Democrats are saying that for every challenge that we face in this country, big new government solution.

We saw it with the stimulus, we saw it with the bailouts, we’re seeing it with this health care—and I disagree with all of it. I think fundamentally, we need to be looking for smaller, more accountable government. And so in order to get there, I’d like a balanced budget amendment.  But even if we can’t get a balanced budget amendment passed, I think that’s the guide upon which we should make decisions in Washington.

You know, 48 states have some legal form of requirement of a balanced budget…I mean, yeah, they have some requirement—most states, I mean New Hampshire does. And I just don’t understand why the federal government isn’t operating under the same principles. So that’s why I’m hoping to come here to serve. Because I think we’re going to have to end earmarks, I think we are going to have to, again, look across government…we have to sunset programs rather than adding new agencies, and say do we need to do this, and ask those difficult questions.

JB: Second part of the question, just to…

KA: Sure. I mean I can obviously talk about this, because this, to me, if I could pick one issue I wanted to wake up every day and think about as U.S. Senator, it would be this issue.

JB: Well, let’s come back to that, because it’s one of the two or three biggest issues for us, too, and we’d like to hear more from you about it. Sen. John Thune, South Dakota, has a bill, and forgive me, I don’t remember the number, to basically establish a deadline by which the government would have to give up ownership, sell off ownership of carmakers, finance (KA: Insurance companies)…etc., etc. Does that idea appeal to you?

KA: It very much appeals to me. Because I wouldn’t have wanted us to support the bailouts in the first instance. So I haven’t looked at the specific language in Sen. Thune’s bill, but the notion of us getting out of the private sector, to me, is important, and I didn’t think it was appropriate for us as the government to be picking winners and losers. I would like to see the market operate in the ways it was designed to. Because once we’ve gone down that road, of, you know, creating a situation where industries feel like the government’s going to bail them out, how do we get out of that moral hazard?

JB: That is a moral hazard, I’m glad to hear you use that term. John?

JG: As a student of the Office of Attorney General, I wanted to ask you: General Edmonson, in Oklahoma files amicus curiae briefs on everything around the country such as the Boy Scouts, and other things. What kind of amicus curiae briefs did you file as Attorney General on other issues?

KA: I filed very few myself. There were times when I joined in other briefs, but most of my focus was on working on things in New Hampshire. So, the only case that I can think of offhand where I—we filed one, as a state, you know, where we took the initiative, there was a challenge in Maine to their sex offender registry laws that we thought were going to undermine our registry laws in New Hampshire.  So I think we spearheaded an amicus to defend their registry laws, because we thought it would undermine ours. So that’s one where I can think of offhand where we led the charge.

JG: And that’s relevant, of course.

KA: I thought it was going to impact New Hampshire’s laws. So I’m not—I haven’t to my knowledge I can’t remember ones where we—just from my perspective on it, allocation of resources, the allocation of resources should be focusing on New Hampshire cases, and we had plenty of those to take care of. There were times when I joined in other people’s briefs; I mean, that’s a fairly common event as an Attorney General.

JG: The other is, since we’re talking about Bill Mims, he was one of the 13 Attorneys General who joined in General McMaster’s suit in South Carolina, saying that some of the things like exempting Nebraska from paying for health care was unconstitutional.

KA: I thought that was great.

JG: So if, if that’s something—

KA: I thought it was great.

JG: Now were you Attorney General?

KA: I was not. I had resigned in July. But on the campaign trail I have said that if I were still Attorney General, I would have been proud to join my colleagues on that issue.

JB: Let me interrupt for second, John…one of the things that a lot of people are talking about is the individual mandate which would be imposed under ObamaCare. What’s your view on the constitutionality of that?

KA: I think that’s one that should be challenged, because, you know, it’s really questionable whether the federal government can impose that on individuals at the state level, and I would expect if that’s passed, that’s something that will be brought forward. I don’t know what the outcome will be, but I think it’s a worthy matter to bring forward. And I think it’s one of the issues that also—you know, the Attorneys General that are looking at it, I don’t know if they’re going to focus on that issue because I know they’re very much looking at the disparate treatment between the states as an issue, but it wouldn’t surprise me if they also looked at the individual mandate, if that’s the outcome of whatever process is followed; I mean I, I know that they’re talking about reconciliation now, but…

JG: Paul Hodes will be the Democrat running for the senate seat. I learned this morning, Hodes has accepted money from Charles Rangel, and will not give it back. Are you going to hit him on that?

KA: I hit him on Friday on it, and we’d be happy to forward you our press release that we sent out Friday. Because it shows you, unfortunately, the hypocrisy involved; and he comes out first thing asking for the resignation of congressman Rangel, but he has also previously voted, when he’s had instances to be able to hold him accountable, he’s voted the other way. And so in addition to keeping campaign donations from him, he’s had opportunities to basically say vote to hold him accountable, and he’s voted the opposite way. And then finally, I think, one of the interesting pieces of this, when he ran against Charlie Bass for the congressional seat, he hit Charlie Bass repeatedly on Tom DeLay, and how Charlie should give back DeLay’s money. And here he is on Charlie Rangel, it’s speaking out of both sides of his mouth.

JG: The other thing is, could you name four issues where you would like to debate Paul Hodes on, where you disagree? Because remember, he did vote against the bailouts, although I think his reasoning was a little different than (company here?), I mean it’s like Bernie Sanders.

Staff member: He only voted against TARP.

JG: Okay…

KA: He had voted for the rest of the bailouts. So, I mean, first on my list would be the public option. I mean he said that—he’s gone as far as making the statement that people that don’t support the health care reform proposals are members of the ‘Flat-Earth Society’. Well, you know, I look forward to debating him on that. Because I’m proudly going to say that he’s basically talking about a majority of the people in New Hampshire.

JB: And the country.

KA: And the country. So, I think that would be number one on my list. You know, secondly, I think I’d like to have a very strong debate with him over spending. Because he has supported the President, and he has supported the President’s budget that in my view put us in on a path that is essentially going to double and triple our national debt in ten years. And so I’d like to have a serious discussion.

He claims he’s a fiscal conservative now, let’s talk about, you know, who really is going to get spending control in Washington, and really put us on a more fiscally responsible path. And I’d also like to have a debate with him on terrorism. Because he has been very silent. I have been campaigning, as a former prosecutor, the decision of Atty Gen Holder to try Khalid Sheikh Mohammed in New York City I think was the absolute wrong decision. To give the Christmas Bomber Miranda Rights after he’s giving us valuable information 45 minutes into the discussion, wrong direction. He’s been very silent on these issues, and I want to know, is he going to make the decision to treat terrorists and protect our country and make sure we have valuable information to prevent attacks? Or is he going to stand with the Attorney General on these decisions?

JB: Do you think it’s important, as well as appropriate, to keep Guantanamo Bay open, and to try these characters in military tribunals?

KA: Absolutely. I mean, I just…absolutely. I mean, just a little bit about my family background. My husband’s an Iraq War veteran, he’s an A-10 pilot. He’s still a lieutenant colonel in the Guard.

JG: In the National Guard?

KA: In the National Guard….I guess I come at this, I come at it as a former prosecutor, I come at it as a military spouse, and I think we shouldn’t close Guantanamo Bay, and we should absolutely be trying them in military tribunals. I’ve tried some tough cases. I’ve tried death penalty cases; in our criminal justice system, we have an open system of discovery. So it’s open-book. So we are going to be giving terrorists access to open information. Not only that, we give them a forum this guy, who’s already said he did it, to spout out to other terrorists in the world, to get off his message; and in my view, that’s not the right way to handle it. Not to mention, you have the Mayor of New York City saying it could cost us a billion dollars just to keep people safe in New York City.

JB: Well, that’s just [New York Mayor] Mikey [Bloomberg] saying, well, you know, if the feds don’t want to pay for it, I don’t want it. It’s like Schwarzenegger in California: ‘Oh, I can’t spend other people’s money, I’ve got to pay for it myself’?

KA: …You put it all together, and it just doesn’t make any sense to do that. And the notion that the President made the decision we’re going to close Guantanamo Bay, and have no plans for what was actually going to happen with the people that are in there, some very dangerous people? That didn’t make any sense, either.

JB:  Many thanks for joining us.