Transcript: Sens. Durbin, Ensign on 'FNS'

Written by Chris Wallace / Published May 04, 2009 / Fox News Sunday

The following is a rush transcript of the May 3, 2009, edition of "FOX News Sunday With Chris Wallace." This copy may not be in its final form and may be updated.

CHRIS WALLACE, HOST: Even before it was officially announced, the political sparring began over who President Obama will name to replace retiring Supreme Court Justice David Souter.

For insights, we bring in two Senate leaders — Democrat Dick Durbin, who joins us from his home state of Illinois, and Republican John Ensign, who's in his home state of Nevada.

Senator Ensign, given the fact that Justice Souter was a reliably liberal vote on the court, and that replacing him isn't going to shift the balance of power, is this a free choice for President Obama, no Republican filibuster?

SEN. JOHN ENSIGN, R-NEV.: Well, what I would like to see the president do as far as the choice is concerned is, you know, first of all, you have to have somebody who is honest, somebody who is qualified, and there are plenty of people out there who fit that bill.

But also, I would like to make sure that there are no litmus tests as far as, you know, this particular issue — abortion — whatever those kinds of issues that are out there. If people have actually taken positions, I think that that in and of itself prejudices them in the future.

And so what I want to see is the bench get back to not legislating. They're not part of the legislative branch. They need to get back to just interpreting the law, interpreting what our founders meant in the constitution.

And ultimately, too many times lately, they point to international law instead of the U.S. Constitution as far as what the basis for their decisions are. And we need to get back to what the Supreme Court is supposed to be about, and that is interpreting our Constitution according to how our founders meant it and according to judicial precedent.

WALLACE: Senator Durbin, with so much on his plate, should President Obama shy away from a fight on a Supreme Court nominee and pick someone who appeals across party lines?

SEN. DICK DURBIN, D-ILL.: Well, there doesn't have to be a fight. And I think what the president said when he spoke to Justice Souter is an indication of what he's looking for.

He's looking for someone who has the right legal credentials, someone who is honest and forthright and understands their responsibility on the Supreme Court.

I might disagree a little bit with my colleague, Senator Ensign — hard to imagine someone, after 30 or 40 years of experience in the law, who hasn't taken a position on some issue. That's going to happen.

We just need to make certain that person is using sound reasoning to reach that position and that they're fair in the way they approach it.

When I take a look at the names, even those from Illinois, they are extraordinary that may be considered for this. But I don't have any inside information in terms of who it might be.

WALLACE: Let me ask you — let's follow up on that, Senator Durbin. The president talks about wanting somebody with empathy and understanding — his words. Whatever happened to just applying the law?

DURBIN: Well, look what happens with Lilly Ledbetter. This led to a change in law because the Supreme Court under its new leadership decided to interpret the law in a way it had never been interpreted.

And as a result, a woman who had been discriminated against in the workplace for more than 10 years was denied any recourse in court. That was a reversal of previous analysis of the law.

And I think what I hear in President Obama's statement is that he wants the justices of the court to try to understand the real world we live in and the impact of some of these decisions. Apply the law, but do it in a sensible fashion.

WALLACE: Senator Ensign?

ENSIGN: Well, as I mentioned before, interpreting the law versus making new law is what I think ultimately we should be looking for in somebody who's going to sit at the highest level of our justice system.

Too many times, people on the Supreme Court and even in the Court of Appeals — they have been making laws based on what they want to see in the Constitution, not on what the Constitution says.

And that's what we have to get back to, is actually having people who look at the law and they read it for its plain reading. They read it — what the founders intended. They read it for what judicial precedent has been, instead of just what they want to see in the law.

Our courts have been turning the legislative branch at the state level as well as at the federal level upside-down because too many of them actually want to become legislators instead of just justices.

WALLACE: Gentlemen, let's turn to Arlen Specter, who, as you all too well know, switched parties this week.

Senator Ensign, with a Democratic president, with control of the House and, it looks like, pretty soon filibuster-proof majority in the Senate, fair to say the Democrats have no excuses, that they now own whatever goes right and whatever goes wrong?

ENSIGN: Well, certainly, with the ability to override the minority in both the House and the Senate — and when you have a president who can sign the bills, they're going to have a lot of responsibility on their plate. I hope that they don't try to reach too far.

I hope that this attitude that President Obama has talked about, this bipartisanship of sitting down at the table — for instance, on health care, we have a very important piece of legislation.

We've never considered something this big in the United States, that affects one-sixth of the economy, that affects every American. This needs to be done in a bipartisan fashion. If the Democrats want to, they could certainly ramrod through bills now. But I hope that they don't do that.

I hope, actually, what President Obama talked about, this bipartisanship — that it actually will come to reality. We haven't seen a lot of it this year, but I hope that we can start seeing some of that.

WALLACE: Senator Durbin, if you end up with 60 votes, how much of the Obama agenda do you think you will get through this year? And please be specific.

DURBIN: Well, first, let me tell you, to reach 60 votes, keep in mind that Senator John Cornyn, the head of the Senate Republican Campaign Committee, said if it takes years, they are going to try to stop another senator from being seated in Minnesota regardless of what the Minnesota courts say. So assuming 60 votes may not be the proper premise.

But let me also tell you this. As a person who counts votes, we have a very diverse caucus on the Democratic side — some conservatives, some moderates, some liberals — and each of them sees things a little differently. To think that they're going to march in lockstep may be Harry Reid and my dream but not likely to occur.

What can we do this year? I want to see a bipartisan bill on health care. I want to us attack this issue of global warming and climate change, and to make sure that America is moving towards energy independence, green jobs in this new economy. Those are things we can accomplish.

WALLACE: Senator Durbin, just to quickly follow up before I move on to another subject, are you suggesting that the Republican Party is going to block the decision in the Minnesota Senate race between Norm Coleman and Al Franken to keep you from getting a 60-vote majority?

DURBIN: Senator John Cornyn has already announced that, that he wants to see this appealed to the federal courts and beyond, if necessary and, I think in his own words, said even if it takes years.

To think the people of Minnesota would be denied a Senate seat, even after they've had two official recounts, and it's gone through the courts, would really be unfortunate.

WALLACE: Senator Ensign, I want to put up some numbers about the state of the GOP. In 2004, you had 55 Republican senators. Now you have 40. In the nine northeastern states, including Pennsylvania, there are now just three Republicans out of 18 senators, and 15 House members out of 83 seats.

Senator Ensign, it sounds like a Disney movie — "Honey, I Shrunk the Party."

ENSIGN: Well, certainly, the parties go through ups and downs, and especially in the northeast we have not done well in the last several years, and we have to address that as a party.

Both parties have diversity. What we have not done a good job in, and especially, I believe, in the northeast, is recruiting the kind of candidates who can win, and that's what we have to do.

The Democrats have done a much better job of identifying people who they think could win in particular states, and I don't think that we've done a really good job of that, and we need to get back to that.

Ronald Reagan had a great saying. Somebody who agrees with you 80 percent of the time, that's your friend, not your enemy. And unfortunately, you know, in the Republican Party, some people have wanted to get almost — to have too pure of a party.

You know, obviously, I'm a conservative, but some people have wanted to have just all conservatives in the party. But if you're going to be a national party and you're going to be in the majority in Washington, D.C., or in most states, you're going to have to welcome people who maybe vote differently, who look at issues differently.

Certainly, people in the northeast have environmental issues that are completely different than those of us in the intermountain west. And you have to respect each other's differences and each other's not only regional differences, but sometimes philosophical differences.

Get back to the core issues, though, of personal responsibility, of limited government, of actually thinking about our children and our grandchildren, with this huge debt that is ballooning in the United States. I think this has really been a good wake-up call for the Republican Party.

WALLACE: Senator Ensign, briefly, from long and perhaps bitter experience, any advice for Senator Durbin about dealing with Arlen Specter? ENSIGN: You know, good luck, because that's all I can say, and I know as Republicans that we have some great candidates that we're recruiting out there, and we want to make sure that Arlen Specter is no longer in the United States Senate after the next election. We're going to work very hard to make sure that happens.

WALLACE: Gentlemen, I want to turn to something serious and ask you both about the passing of Jack Kemp last night.

Senator Durbin, you served with Kemp for six years in the House. Your thoughts.

DURBIN: Jack Kemp was a friend of mine, and although we disagreed on politics, I have to tell you he was a person who brought the same enthusiasm and energy to politics that he brought to football. And you could tell, whether it was a battle of ideas or a battle on the gridiron, Jack Kemp threw himself into it completely.

The fact that when he was the head of Housing and Urban Development, he became a person who reached across, tried to help many people in constituencies that Republicans don't normally work with was an indication of how he thought his Republican Party should be much more inclusive.

I hope that Jack's passing will be a lesson to the Republicans of today that their future should be more embracing and more inclusive.

WALLACE: Senator Ensign, we have less than a minute left. How important a figure was Jack Kemp in the Republican Party?

ENSIGN: Well, he was a great idea man and certainly was one of those Republicans who helped shape my thinking. He was one of the first people that I met with as far as political leaders when I first ran for Congress back in 1994.

And a lot of his ideas shaped a lot of our party with the Republican revolution and the whole Contract with America. He was a very important figure and really a great man and a great family man.

WALLACE: Gentlemen, we're going to have to leave it there.

Senator Ensign, Senator Durbin, we want to thank you both. Thanks for joining us today.

DURBIN: Thank you.

ENSIGN: Thank you.

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