Transcript: Sens. Feinstein, Cornyn on 'FNS'

The following is a rush transcript of the July 12, 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: Tomorrow morning Judge Sonia Sotomayor faces her judges, members of the Senate Judiciary Committee, which will conduct her confirmation hearings.

We're joined now by two leading members of that committee, John Cornyn, Republican of Texas, and Dianne Feinstein, Democrat from California.

And, Senators, welcome back to "FOX News Sunday."

SEN. DIANNE FEINSTEIN, D-CALIF.: Thank you.

SEN. JOHN CORNYN, R-TEXAS: Thank you, Chris.

WALLACE: Senator Cornyn, can Judge Sotomayor's nomination be blocked? And if so, how?

CORNYN: Well, of course, it was unheard of to filibuster judges until our friends on the Democratic side filibustered a number of nominees.

And unfortunately, a gentleman who might have been the first Hispanic nominee to the United States Supreme Court, Miguel Estrada, who filibustered seven times and denied an up or down vote — I don't think that will happen to Judge Sotomayor, even though that precedent has now been established.

I just don't see it happening in this case.

WALLACE: And do you see any way, just on an up or down vote, to block her nomination?

CORNYN: I think she'll be given a fair hearing. I personally and all of my colleagues have made the commitment to give her a fair hearing, treat her with the dignity we would expect every nominee to be treated.

But unfortunately, that seems to be more the exception than the rule. But yes, I think she'll have an up or down vote.

WALLACE: Senator Feinstein, is the judge's ascension to the Supreme Court a sure thing?

FEINSTEIN: I believe it is. She is an amazing, warm and intelligent woman, and she actually brings to the court more experience in courts — trial courts, appellate courts — than any sitting member of the Supreme Court.

And what has been amazing to me is how she's overcome adversity and disadvantage and carried on and done it basically by herself. She's an amazing story, and I think that's been written up now. I think people are beginning to understand her.

And you know, she's entered into some 3,000 appeals. She's tried 400 cases. She's written opinions. Obviously, people will find this or that they don't like.

But overall, the story is so encouraging — it is so much a part of the American dream — and she has done so well at what she's done, it's really — I take enormous pride as a woman in voting for her. And I never say how I'm going to vote before a hearing, but in this case, I — John, I find her amazing. I really do.

CORNYN: It's a great American success story, and I — to overcome adversity and humble origins. But that's not the sort of questions we're going to talk about. We're going to talk about her judicial philosophy.

You know, the judge has given a lot of speeches, in addition to her official actions, where she's questioned whether judges can actually be neutral, whether there is such a thing as objectivity in the law, which means that judges are affected by their biases.

And I think that's a fair area to question her about, because certainly the rule of law depends on the same rules applying to each one of us, no matter our color, our sex or ethnicity.

WALLACE: Senator Feinstein...

FEINSTEIN: Can I...

WALLACE: Well, let me just — because it will get directly to this issue. Clearly, one of the first questions that Sotomayor will be asked will be about this statement that she made in a 2001 speech and, in some form, in at least a half dozen other speeches. "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

Question: How do you expect her to explain that tomorrow?

FEINSTEIN: Well, first of all, I expect her to explain it in the context in which it was made. It may not have been the most artfully put together sentence. However, it does tell you a little bit about the mission of empowerment of women and how difficult it is. And you know, there are many of us, and I've been one, who often thinks a woman has to be twice as good to be thought of as equal. This is a tough arena in the political arena. In the legal arena, it is equally as tough, because all of the advantages are really given to the men in terms of being part...

WALLACE: But is it the right thing...

FEINSTEIN: ... of the in group.

WALLACE: ... for a judge to say that I think a Latina judge will — I believe would come to a better conclusion than a white man?

FEINSTEIN: Well, she said a wise Latina. I mean, as I told John earlier, I could say, "Can't you believe that a silver-haired Texan who served on the supreme court of his state might know more than whoever it is?" Sure you could. And it would...

CORNYN: I've never been accused of being particularly wise, Chris.

But the problem is you've got to call balls and strikes as a judge, and it really — you know, the ethnicity focus, the focus on sex and on race, and saying that there may be different outcomes depending on who the judge is, is antithetical to the whole idea of the rule of law, objective and neutral justice. And that's the reason why this deserves some questions.

And with all due respect to my friend Senator Feinstein, this is not an isolated comment. This was an argued point that she repeated again and again and again. The president said she misspoke. His press secretary said, "Well, maybe she should have used different words."

But this is a point that she was trying to make and has consistently made, that in some ways the quality of justice depends on who the judge is. And that just can't be — can't be true.

FEINSTEIN: Let me respond to that. Judges are not automatons. They are human beings. And they bring to whatever court they serve their experiences, and a variety of experiences, and a knowledge of the law and your — the human experiences that you have as an individual, I think, play a role.

You know, I've listened to the balls and strikes and, "Well, we're just umpires," and then the individual goes to the Supreme Court and does exactly the opposite. So one's experience, one's venue, one's way of looking at an issue does come into it somewhere along the line. And I think most of us have seen this over and over again.

WALLACE: Are you persuaded?

FEINSTEIN: No.

CORNYN: I'm not, because I think — you know, does it depend on whether Judge Feinstein or Judge Cornyn happens to be presiding over a case involving two litigants? I think we ought to hope for — certainly aspire to the equal treatment to people who are similarly situated in court.

And the idea that individuals are going to be treated differently under the law because of their...

WALLACE: But...

FEINSTEIN: That's not — an individual...

WALLACE: Yeah, but, Senator — Senator, let me ask — let me ask a question, because it gets directly to this point.

The Ricci case where Sotomayor sided with the city of New Haven, which threw out a promotion exam for firefighters in which whites did well and blacks did not — in overturning her ruling, the Supreme Court said this — and let's put the ruling up on the screen — "Race- based action like the city's in this case is impermissible."

FEINSTEIN: Let me respond to that, because I was a mayor during the days in the '80s of putting together these civil service examinations, when you had a lot of court actions which said to communities they had to do it. And it's very difficult.

I happen to believe that this court judgment is going to place a huge burden on communities, because as I understand the judgment — and it was a 5-4 decision. As I understand the judgment, you have to be able to show that you have evidence that you could win a court case before you can withdraw an examination which you may, after the fact, find out had problems with it.

Now, that places communities in a very difficult situation, and we'll have to see how it works out. But let me also say this was a 50-plus-page written opinion by a district court. The appellate court reviewed it per curiam, wrote a very brief — three-judge panel — wrote a very brief opinion into which she entered. She placed her signature on it. That's true.

And now this will be — this was adjudged by the Supreme Court, and you have a result. This is one case out of thousands.

WALLACE: Senator Cornyn, as Senator Feinstein points out, it was a 5- 4 decision and, in fact, she would be replacing one of the dissenters in the case, one of the people who voted the way she did in the court of appeals.

So in a sense it wouldn't change the balance of the court. Does that make a difference?

CORNYN: Well, what's troubling about the outcome in the Ricci case, where — if judge Sotomayor had her way, that cities would basically deny promotions based on the color of one's skin, including Hispanics like Lieutenant Ben Vargas, who will be testifying at the hearing this week, and that's just wrong. That can't be the case.

But it's troubling as the outcome — was the way Judge Sotomayor and her fellow judges on that panel sought to sweep the issue under the rug in an unpublished — with the summary order which was not an opinion. Stuart Taylor's written a very good article on this in questioning whether it violated the court's own rules.

So it took another judge who heard about the case to call attention to the court and say, "This can't be true, that these constitutional arguments about racial quotas are not even being addressed by the court." So that's another component.

FEINSTEIN: Let me just...

WALLACE: Senator Cornyn — forgive me.

When you're the chair of the committee, you get to run things.

(LAUGHTER)

Senator Cornyn, what about the argument — and you hear it — that you guys, Republicans, don't want to be seen as opposing, fighting, tearing down the woman who would be the first Hispanic justice, particularly when Hispanics represent such an important voting bloc?

CORNYN: Well, a third of my constituents are Hispanic, and I understand that what they want, and what every nominee deserves, is for the nominee to be treated with respect. And we will.

We're not going to filibuster Judge Sotomayor like the Democrats did Miguel Estrada, who would have been on the Supreme Court, I would have — I would have predicted, if he had not been filibustered and denied an up or down vote.

WALLACE: Yeah, he was being appointed to the — to the appellate court, not to the Supreme Court.

CORNYN: But the reason he was filibustered is because Democrats knew he was likely be the next pick for the United States Supreme Court.

But I think certainly it's our responsibility under the Constitution to ask questions about judicial philosophy, whether the quality of justice depends on the judge, or whether it's an objective neutral standard that applies to every case and everyone.

WALLACE: In our final moments, I want to turn to another subject, and this involves your role, Senator Feinstein, as chair of the Intelligence Committee.

CIA director Panetta briefed you recently on an 8-year-old program that he had stopped but that Congress had never been told about. Now there are reports that Vice President Cheney ordered the CIA not to tell Congress about it.

One, should Congress have been told about this program, which apparently was never fully implemented? And what do you make of the vice president's apparent role in telling the CIA not to brief Congress?

FEINSTEIN: The answer is yes, Congress should have been told. We should have been briefed before the commencement of this kind of sensitive program.

Director Panetta did brief us two weeks ago — I believe it was on the 24th of June — said he had just learned about the program, described it to us, indicated that he had canceled it and, as had been reported, did tell us that he was told that the vice president had ordered that the program not be briefed to the Congress. This is...

WALLACE: And what do you think of that?

FEINSTEIN: Oh, I think this is a problem, obviously. This is a big problem, because the law is very clear. And I understand the need of the day, which was when America was in shock, when we had been hit in a way we'd never contemplated, where we had massive loss of life, where there was a major effort to be able to respond and — but this — see, I don't — I think you weaken your case when you go outside of the law.

And I think that if the Intelligence Committees had been briefed, they could have watched the program. They could have asked for regular reports on the program. They could have made judgments about the program as it went along. That was not the case because we were kept in the dark. That's something that should never, ever happen again.

WALLACE: Senator Cornyn, your reaction to the decision not to tell Congress and the vice president's apparent role telling the CIA not to tell Congress.

CORNYN: Well, Chris, this, of course, comes on the heels of a statement — unproven, by the way — of Speaker Pelosi that the CIA had lied to her about enhanced interrogation techniques, and this looks to me suspiciously like an attempt to provide political cover to her and others.

I agree with Senator Feinstein — the CIA should brief the Congress. Congress should exercise responsible oversight. But to trot out the vice president and say he's the one that's at fault — this is — unfortunately sounds like a new theme where they still want to blame the Bush-Cheney administration for the economy and for other things that, frankly, are in the — squarely within the...

FEINSTEIN: Well...

CORNYN: ... control of...

WALLACE: Finally, if I may...

CORNYN: ... this administration.

WALLACE: ... because we are running out of time, and I have one other issue I want to discuss with you — and along those lines, there's another story in the paper today, Senator Cornyn, that Attorney General Holder is leaning towards appointing a criminal prosecutor to investigate whether or not CIA personnel tortured terror detainees after 9/11. Good idea?

CORNYN: So after the Obama administration leaves, the subsequent administration will conduct a grand jury to determine whether the president or any person in this administration should be indicted and prosecuted.

This is a terrible trend. And I hope that the attorney general listens to the president, who says, "We need to look forward, not backward." This is high-risk stuff, because if we chill the ability or the willingness of our intelligence operatives and others to get information that's necessary to protect America, there could be disastrous consequences.

WALLACE: Senator Feinstein, you get the last word.

FEINSTEIN: Well, I don't know whether Senator Cornyn has read those inspector general reports, but I have, and they are chilling. And I understand why the attorney general is where he is. I read the Newsweek story. I know no more about it than that.

I don't know whether he will choose to investigate, but that's certainly his independent option, and...

WALLACE: Would you — would you favor a criminal investigation of CIA personnel and how they treated these terror detainees?

FEINSTEIN: As you know, the Intelligence Committee has hired staff, has an investigation under way, is going through each one of the high-value detainees, their interrogation, their detention, their treatment, the techniques that were used on them, in what combination, over what period of time.

And that material hopefully will be before us within the next six to eight months, and we will be able to consider it, make findings, recommendations, and the committee will also consider whether to release it publicly.

I think this is an independent I.G. I would hope they would let us do our report. But he's going to do what he's going to do.

WALLACE: Senators, we're going to have to leave it there. We want to thank you both so much for joining us and, among other things, previewing those confirmation hearings. We'll all be watching tomorrow.

FEINSTEIN: Thank you.

CORNYN: Thank you.

WALLACE: Thank you.

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