Transcript: Who Will Replace O'Connor?

The following is a transcribed excerpt of 'FOX News Sunday,' July 3, 2005.

CHRIS WALLACE, FOX NEWS: Gonzales is considered a leading choice to replace Sandra Day O'Connor on the Supreme Court, and that worries some conservatives who think he's too moderate.

The New York Times reports that just hours after Justice O'Connor retired, conservative groups held five conference calls to discuss how to head off a Gonzales nomination.

We want to devote this hour to Sandra Day O'Connor's retirement from the Supreme Court and the battle to replace her.

To begin, we've brought together three key voices in the debate: Mitch Mcconnell, the number two Republican in the Senate; California Democrat Dianne Feinstein, a member of the Senate Judiciary Committee who joins us from Colorado; and Republican Lindsey Graham, a member of the so-called Gang of 14, who's in his home state of South Carolina.

Senators, all of you welcome back to "Fox News Sunday."

Let's begin by getting each of you to give a brief answer, if I can, to the same question. How important is the process that's about to begin to choose a replacement to Sandra Day O'Connor?

Senator Feinstein, let me start with you. What's at stake here?

U.S. SENATOR DIANNE FEINSTEIN, D-CA: Well, I think what's at stake is many issues, quite likely.

Sandra Day O'Connor was pivotal on the court. She was what's called, I guess, a moderate conservative. She was also a very independent thinker, and consequently in some key decisions, she was a deciding vote.

So if this is different than if it were the Chief Justice Rehnquist, and I think -- my hope is that everyone keeps their powder dry, and we allow whoever is the nominee is to have a fair and full hearing before our Judiciary Committee.

WALLACE: Senator Graham, what's at stake here?

U.S. SENATOR LINDSEY GRAHAM, R-SC: Well, replacing a Supreme Court justice is very important, but they come and go.

Really what I think is at stake is the reputation of the Senate. Can we have a confirmation process that will hold the Senate up to the world and the nation as a deliberative body made up of men and women who are serious about their job, or will it break down into some food fight?

I really think the Senate's reputation is at stake as much as anything else.

WALLACE: Senator McConnell, same question.

U.S. SENATOR MITCH MCCONNELL, R-KY: Yes, I think Lindsey's got it right. Every Supreme Court nominee throughout the history of our country with the majority support in the Senate's got an up-or-down vote.

What we need to have is a fair, respectful, dignified process that makes the Senate look good, leading to an up-or-down vote, and we need to finish the job before the first Monday in October so the Supreme Court is at full strength.

WALLACE: Senator McConnell, Senator Graham said he doesn't want to see this be a food fight. Now I'm not talking about the Senate, but the outside interest groups who are already getting into it. Do you share the heartburn of many conservatives about the possible nomination of Alberto Gonzales to the Court?

MCCONNELL: Well, look, we can only control ourselves, and there are 100 Senators, and we ought to conduct ourselves in a dignified way throughout the process.

In this country you're free to say and do what you want to, and all of these outside groups will have their best say.

My estimation is, Chris, that's what done on the outside will have very little impact on what's ultimately decided on the inside.

WALLACE: Do you see this, Senator McConnell, as an opportunity to maintain the balance of the Court or to change it?

MCCONNELL: Look, it's up to the president to decide who to nominate. Our job is to is to react to that nomination in a respectful and dignified way, and at the end of the process, to give that person an up-or-down vote as all nominees who have majority support have gotten throughout the history of the country.

It's not our job to determine who ought to be picked.

WALLACE: Senator Feinstein, some Democrats say that the president should nominate a consensus conservative. Can you name one?

FEINSTEIN: Well, I'm a member of the Judiciary Committee. I have been for 12 years. I sat on both the Ginsburg and the Breyer confirmation.

Now, let me say this: We will conduct ourselves well. We will do our due diligence. The hearings will be fair. They will be open. They'll be totally transparent. And then members will make a decision.

I hope that it is a mainstream conservative. And let me explain what I mean by that. That's someone that really speaks for the great bulk of Americans.

I think one of the concerns that's developed on the Democratic side of the aisle was when we saw the appellate courts going extraordinarily conservative, in terms of some of the appointments. And it's very important. I mean, this is a very high-profile appointment. Everybody is watching. We have an electorate that's more polarized and divided than I can ever remember. I think the president would do well to reach into the mainstream, to try to bring people together over this appointment. And I think it's very doable.

WALLACE: Well, you say it's very doable. Just give me a couple of names. Who would be mainstream conservative?

FEINSTEIN: No, I won't give you a couple of names. I think this is up to the president. I'd be very happy to give those names to him. I have a couple of thoughts, but this is an advise-and-consent process. And, you know, both the chairman and the ranking member were on television earlier this morning, and I believe they are going to be consulting. I think that's a very positive thing.

I think if the president does that and reaches out and listens to members of the Judiciary Committee, I don't believe there will be a problem. I think everyone will be proud of the process, because all of the elements of the process are there, and all we need to do is carry them out.

WALLACE: Senator Feinstein, let me ask you one last question. Do you think that the president should name a woman to replace the first woman on the Supreme Court?

FEINSTEIN: Well, you know, I'm the only woman on the Judiciary Committee. So obviously my answer would be yes.

Sandra Day O'Connor played a very historic role, being the first woman. And being as distinguished as she is, she's been an incredible role model for lawyers, for jurists, for Supreme Court justices, and it would be very nice to see her replicated.

WALLACE: Senator Graham, maybe I'm missing something here, because there's all this talk about: Let's be dignified, and let's all get along, but you well know, there are a lot of conservatives who feel that the court has been too liberal on too many issues and that this is the opportunity to change the balance of the court.

GRAHAM: Well, I think Senator McConnell got it right. We can control ourselves. If we give our votes over to special interest groups, shame on the Senate. Our job is not to be critics, and not to be cheerleaders, but to fairly evaluate who the president sends before the Senate.

The bottom line is, the best way to predict what someone will do in the future is what they've done in the past. This president's been elected twice by the American people. Both times he campaigned on the idea that, as a president, he would send conservative nominees up to the Senate. He's lived up to that promise. I expect he will do that in the future.

This idea of an ideological balance being maintained by a particular president has never been the standard. It's impossible to achieve. I think the president will send up a solid conservative.

Rehnquist replaced Burger. Thomas replaced Marshall. So there is no requirement to keep an ideological balance. There is a requirement to consult. There's a requirement to send a qualified person up. There's a requirement to keep a campaign promise. I think he'll do all of those, and hopefully we can confirm someone.

Rehnquist got 65 votes. Scalia got 95-plus. Ginsburg got 95- plus. It's possible to do this.

WALLACE: Senator Feinstein, let me pick up on Senator Graham's remarks, because if the president names a solid conservative who you, in your heart of hearts believes will change what is now the law of the land on abortion, on affirmative action, on separation of church and state, are you prepared to filibuster that nominee?

FEINSTEIN: Oh, I'm not going to say that. Certainly a filibuster is a last resort. I don't think there's one Democratic member of the United States Senate that wants to see a filibuster. We would all like to see it avoided. We are the minority. We recognize that. This is a right that for 200 years has been accorded to the minority. We don't want to see that right done away with.

I think you're going to see whomever the president chooses to nominate be looked at very respectfully.

So, you know, one of the things that bothers me is, as you started out, Chris, the groups all mobilize, the money all raised, the expectation of spots back and forth -- I think that is destructive, candidly, to the process.

FEINSTEIN: And this Judiciary Committee is pretty solid. I think members on both sides are solid people. And I think they understand what's at stake, and we want to carry out our role, and we want to see the Senate come together, Republicans and Democrats.

Let there be no doubt. But we're not going to give up a basic right that's there, should there be something that happens that's aberrant. That's all.

And I think people are really making too much of all of this, and I hope everybody just steps back, let the process go forward.

WALLACE: Senator McConnell, you know, for all the talk today, it was only minutes after Sandra Day O'Connor's announcement when Ted Kennedy went into the Senate chamber and started talking about the possible abuse of power and that Democrats would fight it if the president does so.

If the Democrats do filibuster the president's nomination, is the Republican leadership going to put the so-called nuclear option back on the table, to change the rules to make it easier to cut off debate?

MCCONNELL: Look, what we know for sure, largely as a result of the terrific work of Senator Graham and Senator DeWine, is that there's 60 votes in the Senate who believe that there will be -- who can control, that there will be no filibusters except under extraordinary circumstances. And we know that judges like Janice Rogers Brown and Bill Pryor and Priscilla Owen are not an extraordinary circumstance.

So I think there is every expectation, every reason to believe that there will be no successful filibuster. In other words, cloture would be invoked, stopping the filibuster.

WALLACE: But?

MCCONNELL: You know, virtually any reasonable nominee.

WALLACE: But if?

MCCONNELL: All options are still on the table, obviously, but we don't think a filibuster can be sustained.

WALLACE: Senator Graham, let me ask you that, as a member of the so-called Gang of 14 that made a deal to head off the nuclear option. Your group of seven Republican senators and seven Democrats came up with this language, and let's put it up: "Nominees should only be filibustered under extraordinary circumstances."

Now, obviously that's up to each senator, Senator Graham, to come up with. But in your mind -- and some liberals have said this -- is any Supreme Court nominee an extraordinary circumstance?

GRAHAM: Oh, the people who did the agreement didn't take it that way. To me, based on what we've done in the past with Brown, Pryor and Owen, I agree with Senator McConnell that ideological attacks are not an extraordinary circumstance. To me, it'd have to be a character problem, an ethics problem, some allegation about the qualifications of the person, not an ideological bent, given what we've done in the past.

I'm hopeful that the Senate will be able to consider this nominee and not only the agreement will hold, but we'll get back to what we've done for 200-and-something years. Justice Ginsburg got almost 100 -- 90-something votes. Rehnquist got 65. Scalia got 95, 97. We've been able to confirm liberal and conservative justices who were qualified. That's been the way of doing business in the past. I hope that'd be the way of doing business in the future and get away from this ideological litmus test, because it's not right.

WALLACE: Senator Graham, is the Gang of 14 going to try to act together as a bloc on the filibuster question?

GRAHAM: There's been no such meeting.

Number one, I'm against gangs, by the way. There's a federal statute against gangs, and we're not tattooed or anything.

(LAUGHTER)

GRAHAM: We came together for a specific event in the Senate. It was a chance to start over. This agreement has no effect other than giving the Senate a chance to start over and getting some nominees through the process who had been filibustered, I think, unfairly. It gives us a second chance in life. I hope we'll seize it.

We'll all talk. Everybody in the Senate will talk. But I'm hopeful that the spirit, the compromise, where people will slow down and evaluate the qualities of the nominees without so much bad behavior, calling them Neanderthals, I hope that's off the table forever, because it really hurt the Senate.

WALLACE: Senator McConnell, I talked to a top Republican strategist yesterday who said that they only want four or five weeks between the president's nomination and the beginning of hearings in the Senate Judiciary Committee, not eight or nine or ten weeks, and they are particularly taking notice of the Bork case, where his nomination was out there for weeks, and the opposition was able to define him before he got his hearing in the Senate.

WALLACE: Will the Republican leadership coordinate with the White House and push for hearings in the Senate Judiciary Committee, in August, in a timely fashion after the president's nomination?

MCCONNELL: The way to look at it, Chris, is the average time from nomination to confirmation historically has been 72 days. Under Bill Clinton it was 58 days. There are 92 days until the first Monday in October -- between the vacancy and the first Monday in October.

It's plenty of time to get this done between now and the first Monday in October so there's no vacancy when the Supreme Court resumes its activities.

Exactly at what point in the process each of these steps will take, I'm not certain. But I think we'll finish the job within the time frame that's typically used, and we'll have a new Supreme Court justice by the first Monday in October.

WALLACE: Do you agree with this idea that you do not want more than four or five weeks between when the president names someone and when the Senate Judiciary Committee starts to meet?

MCCONNELL: What I'm saying is we're going to plow through the process in about the same amount of time that's routinely used and have a new Supreme Court justice on the court by the first Monday in October.

WALLACE: Senator Feinstein, can you...

FEINSTEIN: May I respond to that, Chris?

WALLACE: Absolutely.

FEINSTEIN: The Senate is out, the Senate is out for this week. The Senate will be out for the entire month of August.

So this impacts the timetable. As I understand it, Justice O'Connor has agreed to serve until her replacement is in place, so there is not going to be a gap.

I think it's important that we have the time to do what we need to do. No body knows who the president is going to appoint -- whether it's someone that doesn't need much due diligence or someone that's unknown that may.

Therefore, I think to set any arbitrary timetable at this point is certainly a mistake.

I think no one, and let me speak for our side of the aisle, wants to delay this.

But, on the other hand, no one wants to be intimidated to have to force through a nominee that they can't do their work on.

And let me just say what it means. We all have judiciary counsels assigned to us, those of us that are on the Judiciary Committee. I have four. Two people, two judges, they read their writings, their speeches, the cases if they are a jurist that they've sat on. They give me a report. They give me pertinent things to read so that I can have a grasp of what this nominee is all about when I go to the hearing. And then after the hearing, sometimes questions arise. Those questions are sent in writing to the nominee...

WALLACE: Senator Feinstein...

FEINSTEIN: ... and the nominee responds.

WALLACE: Senator Feinstein, we're starting to run out of time. I'm going to...

FEINSTEIN: Yes, sir.

WALLACE: ... cede you 20 seconds, Senator McConnell to respond.

MCCONNELL: Let me respond to Dianne. The average time from nomination to confirmation is 72 days. We have 92 days between the vacancy and the time of the first Monday in October.

We're not talking about speeding the process up. We're talking about handling it like it's normally handled, which gives us plenty of time to get a new justice on the courts when they start their terms.

WALLACE: Senators, we're going to have to thank you all. Thank you all for talking to us on this holiday weekend.

MCCONNELL: Thank you.