Transcript: Sens. Cornyn, Schumer Talk Judiciary

The following is a transcribed excerpt from 'FOX News Sunday,' April 10, 2005.

CHRIS WALLACE, HOST: Well, there's no issue that's bigger on Capitol Hill right now than the role of the judiciary. From the independence of the courts to the handling of the Terri Schiavo case to the showdown over President Bush's nominations, the controversy threatens to shut down Congress.

To discuss all this, we turned to two members of the Senate Judiciary Committee: John Cornyn, a Texas Republican and a former judge on that state's supreme court; and Charles Schumer, Democrat of New York.

Senators, welcome to both of you. Good to have you here today.



WALLACE: Senator Cornyn, on Monday, you took to the Senate floor and made the following comments. Let's watch.


CORNYN: I wonder whether there may be some connection between the perception in some quarters on some occasions where judges are making political decisions yet are unaccountable to the public that it builds up and builds up and builds up to the point where some people engage in violence.


WALLACE: There have been two big cases in the news about violence against judges recently. Last month, a career criminal named Bryan Nichols shot and killed the judge presiding over his rape trial. Senator, what political statement was Mr. Nichols trying to make?

CORNYN: Well, none, Chris. And I regret that my statement — part of a 30-minute speech, as you know — was taken out of context and misinterpreted to suggest some connection with these recent states of violence.

I later, the next day, went on the floor explained or clarified that. And Dick Durbin, Chuck's roommate and the Democratic whip in the Senate, acknowledged that there had been a misinterpretation.

WALLACE: Well, I don't understand how it was misinterpreted or taken out of context. I mean, again, we could put it up. Judges are making political decisions unaccountable. And it builds up to the point where some people engage in violence. Sounds like it was precisely in context.

CORNYN: Well, my point was, maybe unartfully stated, is that the founders thought that judges would be what they call the least dangerous branch because they wouldn't be making policy decisions. They'd be enforcing policy decisions made by Congress.

And unfortunately, whether it's the pledge of allegiance held unconstitutional because schoolchildren can't use the phrase under God, whether it's courts radically redefining some of our most basic institutions in society like marriage, whether it's the Supreme Court relying in part on foreign law to interpret what the U.S. Constitution means, I think there's legitimate concerns about whether the judiciary has in some cases exceeded its power.

WALLACE: Do you apologize for trying to make a link between that and acts of violence against judges?

CORNYN: I didn't make the link, Chris. It was taken out of context. I regret that it was taken out of context and misinterpreted.

The truth is that it was the Democratic Senatorial Campaign Committee that sent out an e-mail right after I left...

WALLACE: You don't think you said anything wrong?

CORNYN: Well, I regret that I said it perhaps poorly, but it was a 30-minute speech on the larger topic of whether judges are engaging in policymaking. And I regret that some people interpreted that — misinterpreted it — to suggest something I didn't intend.

As you pointed out, I was a judge for 13 years. I have nothing but the highest respect for the judiciary. Most judges do a fantastic job, a difficult job day in and day out, and deserve our respect.

Unfortunately, some of the policymaking we see happening at the highest levels of the judiciary are causing some people to wonder what's going wrong. And I think that politicizes the judiciary, it causes divisive confirmation politics. And I think we'll be talking about that a little more here today.

WALLACE: Senator Schumer, do you think, when Senator Cornyn made his remarks, when House Majority Leader DeLay attacked federal judges for their decision not to hear the Terri Schiavo case — and let's a look at what DeLay had to say: "The time will come for the men responsible for this to answer for their behavior" — what do you think that Senator Cornyn and Majority Leader DeLay are up to here?

SCHUMER: And look, I accept that Senator Cornyn wants to clarify his remarks, but you have to put this in a larger context. There's a whole drumbeat on the hard right to tell judges they shouldn't be independent, to say to judges: We are going to go after you one way or another if you exercise your independence.

You know, Chris, we're a nation of checks and balances. The Founding Fathers gave federal judges a lifetime appointment for the very reason that they should be independent, that they should be independent of sort of being pressured politically to do something.

That's the warp and woof in our country, and yet we have people on the hard right — this statement isn't alone. Senator DeLay's isn't alone. There was a big conference right now led by those who want to use the nuclear option.

And one of the people there, a guy named Vieira, a conservative lawyer, said, Justice Kennedy should be impeached. And Joseph Stalin had a slogan, it worked well for him, whenever he ran into difficulty: No man, no problem.

I mean, this is getting out of hand. It's an idea that judges should not be independent, that, you know — let me say something, Chris. The Republican Party won the last election, but it wasn't a landslide. It was 51 percent of the vote for the president, 51.5, small majorities in the House and the Senate, and yet they think there ought to be — or at least the hard right, not every Republican — there ought to be one-party rule, that they ought to get their way on judges, every judge ought to be approved, that if they don't get their way,...

WALLACE: All right.

SCHUMER: ... there ought to be a nuclear option.

WALLACE: I get it.


SCHUMER: Checks and balances.

WALLACE: Checks and balances, and we're not going to have any filibuster here. And we don't need the nuclear option.

Let's talk about the Democrats, though. The fact is that during President Bush's first term, your party filibustered 10 of the president's nominees for the circuit court of appeals.


WALLACE: Refused to give them up-or-down votes.

Isn't that in its own way an attack on the independence of the courts


WALLACE: May I finish?

SCHUMER: Please.

WALLACE: Aren't Democrats saying we will only approve judges who agree with us?

SCHUMER: No. We have approved 204 judges. Ninety-eight percent of those don't agree with me on hardly anything, or most Democrats. They are almost all pro-life. They are almost all extremely conservative.

That's who the president has nominated. He said he was going to nominate judges through the prism of Scalia and Thomas, and yet we've approved 204 out of 214. The Founding Fathers wanted some Senate input. They didn't want us to be a rubber stamp.

And let me give you some examples.

WALLACE: No, no, no. I want to ask you about the principle first.


WALLACE: Back in 2000,...


WALLACE: ... you took to the Senate floor to complain about Republicans holding up some of President Clinton's nominations to the court. Here's what you said. Take a look.

"It is an example of government not fulfilling its constitutional mandate, because the president nominates, and we are charged with voting on the nominees."


WALLACE: Senator, you talk about the Founding Fathers, by your own words, aren't Democrats blocking the Senate's constitutional mandate to give these judges up or down votes?

SCHUMER: We are not. In fact, what I said, this was apples and oranges. What I was objecting to, I have my quote, I thought you might bring it up, I said in another part you don't show, "We don't have any problem with the senator from New Hampshire," I think it was Smith, "debating to the end whether Judge Paez," it was about Judge Paez, "should be judge. We have a problem that he had to wait 4 1/2 years to do it."

In other words, candidates should be brought to the floor. But there's nothing in the constitution that says that there has to be 51 votes for that judge. The Founding Fathers intended the Senate to be the cooling saucer. And just because you have a bare majority doesn't mean you always get your way.

That's how the Senate has always been. And what they want to do, because they're not getting their way on 10 judges out of 214, is change the rules in mid-stream.

WALLACE: We'll get to the changing of the rules in a moment, but what about this question: Aren't they doing the same thing, Senator Cornyn?

CORNYN: Well, we're getting up on the fourth anniversary, four years since President Bush nominated some of his circuit court nominees.

Priscilla Owen from Texas, who I served with on the Texas Supreme Court, someone who's served there with distinction for a long time, she and others are being demonized as part of this argument that somehow the Republican Party's captive of the hard right, the president's nominating people who are out of the judicial mainstream, when Democrats and Republicans alike in my state believe that Justice Owen should get an up or down vote on the Senate floor.

The rules should apply the same whether we have a Democrat president or a Republican president. But Democrats now are saying that there must be at least 60 votes before you can even have that up or down vote, even though a bipartisan majority stands ready to confirm Justice Owen and other of the president's nominees.

When President Clinton was president, it was 51. Never before President Bush became president was there this demand that it took a supermajority to even allow an up or down vote in the 200 years of the Senate.

WALLACE: Senator Cornyn, let me ask you, though — and I guess, studying it this week, it seems to me that there is guilt, certainly, or the same kind of action on both sides.

During the Clinton years, didn't Republicans block dozens of the Clinton nominees?

It wasn't through filibusters, but it was through various legislative means, anonymous holds, blue slips. Didn't you do the same thing?

CORNYN: Well, I agree with you that it wasn't through filibusters. This has escalated the judicial wars in a way that has never happened before.

WALLACE: Didn't you block — didn't you, the Republicans, block a number of Clinton's nominees?

CORNYN: They were blocked in committee. And as you know, Chris, I wasn't here then. When I came to the Senate, a bipartisan group of freshman senators asked for a fresh start.

You know, if we engage in the finger-pointing and recriminations of the past about perceived and real abuses of the president's judicial nominees, we're never going to get anywhere. And what we need now is a fresh start.

And we need to treat all nominees exactly the same, regardless of whether they're nominated by a Democrat or a Republican president. And simply, that means by restoring majority rule to the Senate and getting away from this escalation of the judicial confirmation wars...

SCHUMER: In other words...

CORNYN: ... by requiring 60 votes for President Bush's nominees.

SCHUMER: In other words, all 214 have to be approved, no matter how extreme they are.

WALLACE: He's not saying they have to be approved; he's saying vote them up or down on the floor.

SCHUMER: Here's the problem with that. Again, the Founding Fathers intended the Senate not to be a 51-49 group. In fact, 18 percent of the senators — rather, 52 senators represent only 18 percent of the public. That's how the Senate was set up.

And again, you can't just have one-party rule here. They did filibuster judges, by the way. Paez, Berzon were filibustered in 1999 and 2000. But that is not the point...

CORNYN: They are federal judges today, by the way...

SCHUMER. The point is that there have to be checks and balances here. A check and a balance does not necessarily always mean a majority vote. We have 60 votes before you can do certain kinds of spending increases. The Senate is always supposed to be, Chris, the cooling saucer.

WALLACE: But why...


WALLACE: But let me ask you what, let me ask you what...

SCHUMER: Because...

WALLACE: No, Senator, let me ask you the question.

SCHUMER: Please.

WALLACE: You keep talking about these nominees, these 10, as being out of the mainstream...


WALLACE: ... extremists. Doesn't this come down to abortion?


WALLACE: Well, let me ask you a question.

SCHUMER: Well, let me answer your question.

WALLACE: Well, no, let me ask you...

SCHUMER: Two hundred four nominees were approved.


SCHUMER: Ninety-five percent of those were pro-life judges...

WALLACE: How many...

SCHUMER: ... so why would it come down to abortion?

WALLACE: How many...

SCHUMER: Let me tell you.

WALLACE: You asked the question. I'll answer yours.


WALLACE: Or ask another question. How many pro-life nominees have you, Charles Schumer, backed for either the Supreme Court or the Court of Appeals?

SCHUMER: Well, I've never had to vote on a Supreme Court nominee. For the Court of Appeals, 25 or 30.

WALLACE: Who were pro-life?

SCHUMER: Who were pro-life. Exactly my point. Here let me just tell you now about some of the people we've blocked. One nominee said slavery was God's gift to white people. Another said the purpose of a woman is to be subjugated to a man. One nominee said that there should be no zoning laws. If you have a nice house in a suburban community and somebody bought the house next to you and put in a factory with a smokestack that was polluting, that's not (ph) taking of property.

And my favorite, one of their nominees said that the whole New Deal was a Socialist revolution, and we ought to go back to the 1890s. No labor laws, no wages and hours laws...

WALLACE: So, so...

SCHUMER: These are extreme people having nothing to do with the issue of choice.

WALLACE: So, very briefly, because we're running out of time in this segment: Why not just bring them to the Senate floor, have a vote, you get 51 votes, they get in, if they don't, you block them?

SCHUMER: Because the bottom line is that the Republicans — there is such pressure on the Republicans. They have 55 votes. They never break ranks. And we cannot let the judiciary, which is supposed to be independent, be filled with extremists. These extremists are a small number who will take away peoples' rights. That's our constitutional mandate.

WALLACE: Senator Cornyn, you get the last word on this segment.

CORNYN: Well, of course, Chris. The statements, the characterizations that Senator Schumer is making, are taken out of context. And I think people ought to look at the whole picture.

But the problem with the way that Senator Schumer approaches a judicial confirmation process and his colleagues on the Democratic side is they are politicizing the process. They are threatening the independence of the judiciary by insisting that people commit to making certain decisions once they assume the bench.

Judges should not predecide cases. They should listen to the facts, consider the law, do their legal research and then apply the law as written to what the facts are, not predecide cases.

WALLACE: All right. We have to take a break here but when we return, we will discuss just how independent the courts should be and whether the Senate is going to be shut down by the fight over judges. Back in a moment.


WALLACE: And we're back now with Republican Senator John Cornyn of Texas and Democrat Charles Schumer of New York.

Senator Cornyn, President Bush was asked the other day about the controversy over the courts and here's what he had to say, take a look, "I believe in an independent judiciary. I believe in proper checks and balances."

Question: Do you?

CORNYN: Absolutely. And no one is suggesting otherwise. But on the other hand, I don't think anybody should suggest that it in inappropriate for anyone, particularly members of Congress, to exercise their right of free speech to question the basis upon which some judges are reaching policy decisions from the highest levels of our federal judiciary.

I think it's an important part — as we've seen here this morning, differences of opinion. And it ought to be a public debate that people can inform themselves on.

But no one is suggesting that impeachment occur. That has not been suggested in Senate at all...

WALLACE: It has been suggested in the House.

CORNYN: Well, I don't — they of course — I don't have any knowledge, really, of any specific person suggesting it.

But really what we're talking about is these are good men and women who've been given a lot of power in our society. And the question is, and it's been debated since the beginning of this country by our founding fathers to the day, is to how they should exercise that power. Should they substitute their will for that of the American people or the Congress...

WALLACE: But here's the question.

CORNYN: ... and I think most people would say no.

WALLACE: Would you consider, not for misdeeds, misconduct, bribery, would you consider impeaching a judge because of the decision he takes on the court in his official duty or would you consider any legislation limiting the court's authority?

CORNYN: I certainly think that it's inappropriate to impeach or otherwise try to punish judges for making judicial decisions, even if you disagree with them.

But it doesn't mean you can't talk about it. And that's part of what we're doing here today and I think that's very important.

And I personally do not favor some of the jurisdiction-stripping bills that have been proposed by some of my friends and colleagues in the House because, frankly, I think a judge who is determined enough can get around those to reach a decision they want.

But here again, the big problem is we shouldn't have judges on occasion at the highest levels making policy and substituting their will for the elected representatives of the American people

WALLACE: Why do you think it is, Senator Schumer, that both parties have turned the courts into such a political firefight?

SCHUMER: That's a good question. I've thought about it because we'd all prefer that it not be that way.

I think the reason is that — President Bush basically has nominated judges through an ideological prism, far more than any other president. In other words...

WALLACE: But this started well before President Bush had started with...

SCHUMER: Well...

WALLACE: ... I can remember Reagan with Boorke (ph), where the Democrats stopped him. Or Ginsburg.

SCHUMER: Yes, but it wasn't overwhelming. President Clinton, for instance, consulted regularly with Senator Hatch about who he ought to nominate, regularly. And most of his judges were not ACLU lawyers or legal aid attorneys. They were prosecutors. They tended to be moderate to moderate liberal.

President Bush never consults with the Democrats in the Senate — when we have the majority or now. He puts down a list of judges who by an large are way, way over to the right side. And they say they want an independent judiciary. They want an independent judiciary when it agrees with them.

Senator Cornyn said they're not talking of impeachment. At this conference I just talked about, the chief of staff to Senator Coburn, one of the members of the Judiciary Committee, hard right guy, said, "I am in favor of impeachment, even mass impeachment might be needed."

There's a whiff in the air of threatening judges, whether by implied violence or impeachment for standing up for independence. So...

WALLACE: Let me bring Senator Cornyn in. Why do you think the courts are so politicized right now?

CORNYN: Well, in part, because of the rhetoric that we hear used by Senator Schumer and others that — demonizing the president's judicial nominees. He says in one breath, we've confirmed the vast majority of judges, and then he says they are overwhelmingly ideological and out of the mainstream and captive of the hard right. You really can't have it both ways.

All we are asking is for restoration of majority rule in an up- or-down vote. He can vote against the judges he doesn't think are qualified. And I can vote for the ones that I think are qualified. That's all we're asking for.

WALLACE: All right.

SCHUMER: That is not part of the constitution, never has been. And let's get exercise...

WALLACE: Senator Schumer...


WALLACE: ... I'm about to get to the question of the nuclear option. There's increasing talk that in the next few weeks that the Senate Republican leadership may exercise what's called "the nuclear option," change the rules so that you can cut off a filibuster with 51 votes not 60 votes.

Question to both of you. I'll start with you. Do you the Republicans have 51 votes to change the rules?

SCHUMER: Well, I have talked to a number of Republican senators who are, tend to be moderate to moderate conservative. They say they know it's wrong, but they are under tremendous pressure to vote for it.

The nuclear option is really like making the Senate a banana republic. The Senate has had rules that have gone on for hundreds of years. And if you can't get your way, you just exercise from the chair (inaudible). We will change the rules in midstream, and what it will do will destroy the checks and balances in the Senate. And the Senate has always been the repository throughout our constitutional history of the major check on the president.

WALLACE: Let me ask you, Senator Cornyn. Do you, does your side, have 51 votes right now to change the rules?

CORNYN: Well, now, of course, Senator Schumer is comparing the Senate to a banana republic, if I understood him correctly. I mean, that kind of rhetoric, when you're...

SCHUMER: In that one instance, if you do...

CORNYN: ... the rhetoric we're hearing, I think, is really over the top. All we're asking for, and I do believe we have, if necessary, and this is a last resort after four years of patient negotiations and attempts to try to get the Democrats to come to the table and work this out.

If necessary I do believe there are the votes there to restore majority rule to the United States Senate.

WALLACE: Now, let me ask you specifically about the timing of this. The reporting has been that Senator Frist, majority leader, would like to get about a half dozen nominees out of your judiciary committee, bring them to the floor, bring one specific judge to the floor, and in early May — so about a month from now, less than a month from now — either they agree to limit the filibusterer or you go the nuclear option. Are we talking some time early May?

CORNYN: Well, I think Senator Frist is the only one who can and will determine the timing for that. But I know there have been recent attempts by Senator Frist to try to reach out to Harry Reid, the Democrat leader, and to try to work this out. Short of taking this procedural step by traditional means, to restore majority rule.

It's — those who have called it the nuclear option, obviously they want to make it sound radical when all it is is restoring 200 years of Senate tradition in majority rule. And, the fact is, what's nuclear is when Harry Reid has suggested that if Democrats don't get their way, then they're going to shut down the U.S. government, which I think is terrible.

WALLACE: But let me ask you about that. No, let me ask you specifically about that. If they impose the so-called nuclear option, cut off the filibuster. How far are Democrats going to go? Are you going to stop all business in the Senate?

SCHUMER: No, we will not stop all business in the Senate, but we will enforce the rules.

Let me tell you, Chris...

WALLACE: What does enforce the rules mean? I mean obviously, part of that is you could do all kinds of things...

SCHUMER: Correct.

WALLACE: ... where it takes unanimous consent and you could refuse to...

SCHUMER: Let me tell you, we feel so strongly that this is a radical change that removes one of the major checks and balances that this country has had for 200 years.

Senator Dole, let me tell what you he said about the filibuster: It's a way to protect the rights of the minority. It's not just a Democratic tool when Republicans are in charge or a Republican tool when Democrats are in charge.

Senator Nickles, very conservative, "I think it's important we not undermine the capability of a significant majority in the Senate." We feel so strongly about this, and if they rule from the chair by fiats. If Vice President Cheney comes in, says my interpretation of the constitution...

WALLACE: All right.

SCHUMER: ... is 51 votes, we feel we have to take strong action. And what we will do is enforce the rules of the Senate far more rigorously. We will not shut down the government. The government will keep functioning.

But we will because we believe in the rules of the Senate, we believe in what the Founding Fathers calls "the cooling saucer," enforce the rules far more rigorously. We have no choice.

We're not looking at this politically even though I saw a poll in The Wall Street Journal that said 41 percent of Republicans support what we are doing. That's how extreme the Republican majority in the Senate is getting. We're doing it because we believe in the checks and balances.

WALLACE: Senator Cornyn, we've only got about 30 seconds left. Are you willing to go back to the voters and say, "Look, we wanted to get these judges approved. And it's the Democrats who were...

CORNYN: That's what they should do.

WALLACE: ... taking their ball away and refusing to play.

CORNYN: Well, you know, the threat of using the Senate Rules is just code for shutting down the Senate. Because as you pointed out, Chris, the Senate operates in the main by unanimous consent.

But all we're talking about is restoring majority vote, something we had under President Clinton, something we had under President Carter and all previous presidents.

And here again, we need to have a clean and fresh start on the judicial confirmation process because unfortunately, people keep pointing to each other about past perceived offenses. And I think it does not serve the American people well.

SCHUMER: And let me say, I hope we can...

CORNYN: But there's got to be real compromise, not verbiage, and not threats from the chair to change the Senate rules by fiat.

WALLACE: Senator Cornyn, Senator Schumer, thank you both very much for being here. It's a pleasure to have you.

CORNYN: Thank you.

SCHUMER: Thank you.