Transcript: Judiciary Panel Senators on 'FOX News Sunday'

Written by Chris Wallace / Published July 24, 2005 / Fox News Sunday

The following is a transcript from "FOX News Sunday With Chris Wallace" on July 24, 2005.

"FOX NEWS SUNDAY" GUEST HOST BRIT HUME: It will be about six weeks now before the Senate Judiciary Committee convenes to take up the nomination of Judge John Roberts to succeed Justice O'Connor on the court.

When the hearings begin, our next two guests will play important roles.

Senator Charles Schumer (search), Democrat from New York, has become his party's point person on this nomination, and he comes to us from our studios in New York.

Also with us, Senator John Cornyn (search), Republican of Texas, a former state Supreme Court justice who joins us from White Sulfur Springs, West Virginia.

Gentlemen, welcome back both of you to this program.

Senator Schumer, I know you had a chance to meet with Judge Roberts this week, you opposed his nomination in committee when he was named to the court he's now on. Having talked to him and met with him, is there now a chance, perhaps even a good chance, you could vote for him?

SEN. CHARLES SCHUMER, D-N.Y.: There's certainly a chance I'd vote for him. I'd like to vote for him, and our first meeting was a very good meeting.

He is a very, very bright man. He's also a very decent — and he describes his judicial philosophy as one of modesty. He's a modest man himself. So I think it was a good meeting.

I think that the meetings he's had with the others, at least on my side of the aisle who I've talked to, have all been very good.

We still have some work to do, but he made a good first impression.

HUME: Now, let's ask about the document requests, if we can, Senator, that I talked to Judge Gonzales about.

We talked about the memoranda, advisory memoranda he wrote while solicitor general, in the solicitor general's office. What is your view on whether that material should be made available to the committee? It is, after all, I guess, protected — would be protected normally by lawyer-client privilege.

SCHUMER: Right, unless of course, the client waives the privilege.

But let me say this about documents in general. Our goal here is to find out Judge Roberts' judicial philosophy, his method of legal reasoning. This is an argument I've been making for some time, and it's gaining acceptance.

In today's New York Times, Senator Specter says even though he's — has great credentials, the Judiciary Committee should ask about judicial philosophy.

In The New York Post, the paper I don't always agree with, today there's an article by one of their leading columnists, very conservative man. "Question the court. Sorry Republicans, Senator Schumer's got a point."

Here's what we want to do, Brit. We simply want to determine if Judge Roberts is a mainstream thinker. He'll be a conservative mainstream thinker. We know that President Bush has the right to nominate a conservative and not an ideologue, someone who will impose his views upon the American people.

How do you determine that? There are a lot of different ways. There's the questions he answers. Now he has a little bit of a judicial record. He's been on the court. And there are documents.

But there is not a set rule that says we must have this, this or this or we can't vote for him.

This is not, and let me emphasize that, this is not a game of "gotcha" and document requests and in general, information requests are not an end, a goal to prove something. They're a means to simply determining Justice Roberts' judicial views. That's all we want.

So I can't tell you we need this document or that document.

HUME: Well, as a general matter, though, Senator, I want to mention this — the material from the solicitor general's office because as we all know, it was not provided in the case of judges — or judge nominee Miguel Estrada, and it became one of the bases for the...

SCHUMER: Right.

HUME: ... filibuster against him.

SCHUMER: Yes.

HUME: If these kinds of memoranda are not provided, the ones I've just described, would that be a basis, in your view, for a "no" vote or possibly a basis for a filibuster?

SCHUMER: You have to see it in context...

HUME: All right.

SCHUMER: We'll, Miguel Estrada (search) didn't answer a single question. He had no record.

And by the way, he waived his privilege. The administration said their principles said they couldn't give up the documents. But we had nothing to go on as to what Miguel Estrada would do as a judge.

Judge Roberts is beginning a far more open process. He's beginning to answer questions. I know there are some he won't answer, but he is not objecting to discussing his judicial philosophy.

So I think hopefully, the jury's out yet, but it's going to be a different ball game.

HUME: Senator Cornyn, your thoughts on all this?

SEN. JOHN CORNYN, R-TEXAS: Well, I hope my colleagues, like Senator Schumer, who sounds like he's being very restrained in his approach today, resist the pressure from outside liberal special interest groups who said really they have a three-pronged strategy to defeat the nomination.

One is to claim there wasn't adequate consultation. Two, to paint the nominee as extreme. And, third, to make unreasonable demands for documents which lawyers call fishing expeditions.

And I understand Senator Kerry, for one, has already made a comprehensive request in setting up potentially the gamesmanship we saw with Miguel Estrada and even to some extent with John Bolton (search) in a game of "gotcha."

Now, I hope my colleagues on the other side of the aisle resist that kind of pressure from the liberal interest groups, and we have an orderly, dignified hearing and an up-or-down vote on the Senate floor.

HUME: Senator...

SCHUMER: Let me say, Brit...

HUME: Go ahead, Senator.

SCHUMER: There are interest groups on both sides. They're are at the extreme left, they're are the extreme right. I think it's our responsibility as senators, whether we be Democrat or Republican, to sort of let them do their thing.

But we have a much more sincere and solemn responsibility. And that's to ascertain the nominee's judicial philosophy and legal reasoning. And we should do that with the nominee and with the tools that we have available, and not get swayed by the groups. The right- wing groups are just as virulent as the left-wing groups. And we ought to just take them all with a grain of salt.

HUME: Does that mean that you, for example,...

CORNYN: Well, Brit, I agree...

HUME: Just a second. Let me just ask this one question. Senator Schumer, does that mean that you, for example, won't be paying any attention to Ralph Neas, who's been very effective on these issues, and People for the American Way?

SCHUMER: Look, you listen to everybody's viewpoint, there's no question. But we have to make up our own minds. And it should be based on one question — at least for me it is, and I think it is for most of my Democratic colleagues. And that is: Is Judge Roberts going to be a judge who is within the mainstream, who interprets the law, not one who makes law and imposes his views? It was, frankly, quite the same as what Attorney General Gonzales said on the show a few minutes earlier.

HUME: Senator Cornyn?

CORNYN: Well, I agree with Senator Schumer that questions about judicial philosophy are appropriate. But what I hope we don't cross the line into is asking nominees to make promises to politicians about how they're likely to judge the hot-button issues of the day when they come before the United States Supreme Court.

Clearly, those kind of questions, while senators can ask them, would be inappropriate for the nominee to answer. We need to respect the independence of the judiciary and not ask judges to prejudge cases.

HUME: Senator Schumer, you've outlined a pretty long list of questions, a quite extensive list of questions. And they cover a range of areas where you would ask the nominee. You're not saying necessarily how would you judge a particular case but this is a very extensive list of questions...

SCHUMER: Yes, it is.

HUME: ... many of which are similar to questions that were asked of earlier nominees, particularly now Justice Ginsburg, also now Justice Breyer. In those cases, they declined to answer most of those questions. Why should this case be any different?

SCHUMER: OK, let me say a few things. First, Judge Breyer did not decline to answer those questions. Senator Hatch asked him questions about specific cases: the Washington case. He answered it. He was asked about the 1st Amendment, the 5th Amendment. And he gave very specific answers.

Justice Ginsburg didn't. But Justice Ginsburg, unlike Judge Roberts, had a full record. She had been on the court of appeals for nine or 10 years. She had written 305 opinions that touched on many issues. Before that, she had written 65 law review and other kinds of articles. So people had a pretty good idea of who she was.

And, to boot, she was a consensus nominee because President Clinton called up Senator Hatch, bounced a list of names off of him. Hatch went and talked to his Republican colleagues and came back and said Ginsburg's OK.

HUME: There you go. Senator Cornyn, what about that? That's a real answer, isn't it, to the question of why Justice Ginsburg shouldn't have to answer questions and perhaps this nominee should? What about it?

CORNYN: Well, we know that Justice Ginsburg, of course, was general counsel for the American Civil Liberties Union. And taken a lot of positions as a lawyer for the ACLU that are clearly outside of the mainstream of American law: a proponent of same-sex marriage, eliminating laws banning prostitution and some things that clearly could have been used but were not, out of respect to the nominee and the process, to try to get her to commit to what she would do with these issues came before the Supreme Court. She did decline to answer those kind of predictive questions. And I think this nominee should do the same.

HUME: Well, wait a minute, Senator. Let me just ask you about...

CORNYN: But I hope it's...

HUME: Well, Senator, I just want to interrupt you on that point. Senator Schumer makes the point that both those nominees, Ginsburg — Breyer he points out answered many more questions — they had extensive records on the court — dozens, hundreds of opinions, a lot of material that was on the record that could be plummed to determine what kind of a justice this person would make. Not true here.

Doesn't he have a point in saying that because of that, this extensive list of questions that he's posed should be answered in this case?

CORNYN: Well, there are a lot of questions that you can ask about established legal doctrines and how you would approach the decision-making process on the court which would be very illuminating. But I know we're all curious to know: How is Judge Roberts, if confirmed, going to rule on, let's say a ban on partial birth abortion and other hot-button issues of the day?

But it would be wrong for us, I believe, to ask those questions.

CORNYN: I'm not going to ask those questions. It would be wrong for him to say, if confirmed, this is how I'm going to vote in the case, because obviously that would require him to prejudge the case. It would, I think, in essence, ask him to run on a political platform. And we're not talking about politicians. We're talking about a judge. And we ought to respect the independence of the process.

HUME: Senator Schumer...

SCHUMER: Let me say, Brit...

HUME: Well, let me just ask this question to you.

SCHUMER: OK. Please.

HUME: Let's assume you run into the same resistance, the same kind of resistance you ran into with Judge Ginsburg on these cases, on these questions. What's that a basis for, Senator? Is that a basis for a "no" vote, or is that a basis for trying to start a filibuster?

SCHUMER: Well, as Alberto Gonzales wisely said, it's premature to answer any of these things yes or no. But let me say this. This is not a game of "gotcha."

I gave Judge Roberts a list of 60 or 70 questions. I gave them in advance because I don't want to surprise him or try get him to slip up or try to nail him and push him in a specific direction. I want to have a real discussion. And he's been great.

I asked him at the beginning of our meeting, could we have a few more meetings. And the answer is yes. And tomorrow, I'm going to call him and I'm going to say, Judge Roberts, you are one of the best lawyers in America. All I need to vote for you is to be convinced in my heart that you will be a mainstream justice, somebody who interprets law, doesn't try to make law by imposing your views upon us.

You figure out the way to let me know that, let all of us, not just the Democrats but the American people. Sixty percent of the American people say they want to know his views, if you can believe these polls. And so he can figure out the way. There's not one way to do it.

And if there is some question he feels uncomfortable in answering, he's a very brilliant man, he can figure out other ways to allay our concerns. You know, President Bush knows him much better than we do. He's spent time with him. They've studied him before.

Now it's our turn to get to know him, see what his philosophy is, and that's what we're going to do. Not in a mean-spirited way, not in a degrading way. But in a solemn and serious way that measures up to what the founding fathers wanted.

HUME: All right. Senator Cornyn, do you find anything to object to in what Senator Schumer's just said?

CORNYN: Well, I think it's — the difficult part comes in the application. You know, the devil's in the details. I think there's broad agreement about the approach, but I think there's some lines that we should not cross.

And we talked about some of those. The confidentiality of deliberative memos that were written that are protected by the attorney-client privilege. Those should not be — that should not be invaded.

There shouldn't be the kind of prejudging sort of questions about specific hot-button issues likely to come before the court. But generally, I think what I hope for is a dignified, civil process, one where the Senate discharges its responsibilities under the Constitution to provide advice and consent.

But in the end, Brit, I think we have to have an up-or-down vote on the Senate floor. Hopefully in time to get Judge Roberts on the court if confirmed by the 1st of October.

HUME: Senator Cornyn, Senator Schumer, very good to have you both. Thank you very much.

SCHUMER: Thank you.

CORNYN: Thank you.

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