Transcript: Senate Judiciary Committee Members on 'FNS'

The following is a transcript from "FOX News Sunday" on Jan. 8, 2006:

BRIT HUME, GUEST HOST: On Monday, confirmation hearings begin for Supreme Court nominee Judge Samuel Alito. For a preview, we're joined by two key members of the Senate Judiciary Committee, Republican Lindsey Graham, who comes to us from South Carolina, and Democrat Dianne Feinstein, who joins me here in the studio.

Welcome, both. Senator Feinstein, in light of your vote against Judge Roberts, now Chief Justice Roberts, is there any chance you could vote for Judge Alito?

SEN. DIANNE FEINSTEIN, D-CALIF.: Well, first of all, it depends on the hearing. Let me say a couple of things. One, we know this is a conservative nominee. The question is how conservative. The question is what is his respect for individual rights, his position on the expansion of presidential powers, the carrying out the legacy — what I believe is the legacy of the Rehnquist Court, which has been to constrict congressional rights to legislate.

His position on a woman's right to choose or abortion I think is a seminal issue in all of this. And one of the things that I think...

HUME: Well, what would he have to say? What kinds of positions...

FEINSTEIN: Oh, I'm not going to tell you what he would have to say.

HUME: Well, I know, but what would be needed to assure you that this is a nominee you should vote for?

FEINSTEIN: Well, he has expressed his views. My question is are his views, let's say, on abortion the same as they were in 1985 when he wrote in an application, "the Constitution does not protect a woman's rights in this area." Now, if that's true and he still holds to that, this will make him a very difficult nominee for many of us.

HUME: Let me turn to Senator Graham on that point.

Senator, give us your thoughts about that position Judge Alito took. It was pretty straightforward, 20 years ago.

SEN. LINDSEY GRAHAM, R-S.C.: Right.

HUME: Of course, that right to an abortion has been law of the land now for what, 32 years. What is your view of Judge Alito on this matter?

GRAHAM: Well, he was applying for a job with the Reagan administration as a lawyer, and the position of the Reagan administration is that Roe v. Wade took away from elected officials the ability to have a say about the unborn. I believe that was a power grab by the courts.

And as an advocate and a lawyer for the Reagan administration he gave them legal advice consistent with the policies of the Reagan nomination. He is the most qualified person to be nominated for the Supreme Court in 70 years in terms of judicial experience.

He's been on the court for 15 years, and there's absolutely no indication that he's an ideologue, a person who will ignore the law to enact their own personal agenda. So he's a solid conservative, and I think he'll be confirmed, probably on a party line vote in the committee.

HUME: Senator Feinstein, you indicated a concern about congressional rights. I assume you're talking about executive versus legislative issues here.

FEINSTEIN: No.

HUME: What concerns you there?

FEINSTEIN: I'm talking about beginning with Lopez 10 years ago. For really the first time in 60 years, the Supreme Court began essentially invalidating the basis that Congress passed certain laws.

Lopez was the gun-free schools law which they invalidated. And it went on to a number of others, I think about 30. The question is does he see this same restriction on Congress with respect to using certain clauses of the Constitution as a basis to legislate in social, civil rights, environment, in many areas.

HUME: Do you see anything in his record as a judge that would indicate that he holds such views?

FEINSTEIN: Well, there is a controversy with respect to that. And I think that will come out in the committee questioning. One case which is very sensitive for many of us, a case called Rybar, where he dealt — he said that — struck down a law having to do with the possession and transfer of fully automatic machine guns, when the Miller case in the 1930s had clearly said that it was legal for the Congress to regulate these weapons under the Second Amendment.

And he took this other restrictive use of the commerce clause to say that the Congress could not legislate. That causes major concern.

HUME: Clearly, Senator Graham, this commerce clause question and how it's interpreted, which goes directly at Congress' ability to legislate in a range of areas, will be an issue here. How does Judge Alito stand with you on that issue?

GRAHAM: Well, I think that's a very good inquiry. In the Lopez case, the Supreme Court struck down a law that we passed about a gun- free zone around schools, saying that there was no tie to interstate commerce.

And what Judge Alito said in an interstate transfer of machine gun, a Pennsylvania transaction that had no association with interstate commerce, that Lopez controlled. I think these are good issue to ask him about.

The court's developing kind of a new line of reasoning that Congress doesn't have the ability under the interstate commerce clause to regulate our life completely. There is some limit on congressional power.

You just can't say interstate commerce, even though there's no interstate connection, and regulate. So it's a interesting debate. I think those are fair questions. But I'm OK with his reasoning.

HUME: What else concerns you, Senator Feinstein, about this nomination?

FEINSTEIN: Well, obviously, I come from a state that is 71 percent supportive of Roe. The American people, according to the latest ABC poll — 60 percent supportive of Roe. This is a pivotal question. And he's in a pivotal spot because of Sandra Day O'Connor's particular position on the court, where she was dispositive in so many 5-4 votes.

So this becomes a major question, and...

HUME: Is this really the major question, in your view?

FEINSTEIN: Well, no. It's symptomatic of a number of different areas. Certainly, civil rights is a major question for the Supreme Court, because the people have to be able to turn to this court to be able to sustain what they believe is a constitutional violation of their rights.

HUME: Well, let me ask you if, in your judgment, Judge Alito's positions that you've seen so far, and particularly in his record as a judge, would cause you to consider a filibuster against this nominee?

FEINSTEIN: I think that's a very premature question, Brit. I think everything depends on these hearings. You know, we had a number of private — well, I had one had one private conversation with Judge Alito.

HUME: How did that go?

FEINSTEIN: It went very well. He was very direct. I felt he was very honest. One of my observations has been that the so-called murder boards that they go through puts a polish on a nominee which is not always constructive.

In this case, because this man has expressed his personal views, he has expressed his legal reasoning, he has a long record, 15 years, of being a judge, there's a lot of questions — many questions to ask. And I think those will be asked in many rounds of questions.

HUME: Senator Graham, what about this? You remember the group of 14 Democrats and Republicans who got together to try to head off potential filibusters of judicial nominees.

Have you heard anything from your colleagues in that group that would suggest the possibility of a filibuster on this nominee and what would happen if someone mounted one?

GRAHAM: No, not at all. But let's talk about the abortion question for a moment. When President Clinton chose twice — he had two picks on his watch — he chose Ginsberg and Breyer, people left of center. Justice Ginsberg openly embraced the idea that there was a constitutional right to an abortion.

I don't agree with that, but Republicans who were pro-life and, I guess, a few Democrats who were pro-life, did not hold that position against her. They believed that she would decide the cases based on the facts and the law.

So we're not going to sit back and watch a double standard to be imposed here. People who have come from Democratic nominees have openly embraced the idea that they believe there's a constitutional right to abortion. They were not disqualified.

If Judge Alito advocated that Roe v. Wade was wrongly decided, that is no — that's not a disqualifying event. An extraordinary circumstance could never be having a different philosophy. You expect Republicans to pick people differently than Democrats.

What I think an extraordinary circumstance would be — someone's character, integrity problems, or clearly they're an ideologue, they don't care what the law is, they've got their own agenda. There is no evidence of that in this case.

And the fact that he may disagree with somebody on a particular issue like abortion — well, that happens all the time. That happens when Clinton picked Ginsberg and Breyer. She was the ACLU executive general counsel. I disagree with her about everything she basically advocated. But I can understand why she was given 96 votes.

HUME: Well, what about that question, Senator Feinstein, that this president ran as someone who was going to nominate judicial conservatives to the court? Judge Alito certainly is a judicial conservative in all respects.

FEINSTEIN: Well, I think that's right. But I think there still is a mainstream conservative movement, rather than an activist conservative movement.

HUME: Right, but would you consider someone who thought that Roe v. Wade was improperly decided by the court? Does that place that person outside the mainstream, in your view?

FEINSTEIN: Well, it depends. In my view, it does, and I'll tell you why. And that is because Roe could have been overturned 38 times. Precedent has been established. Women all over America have come to depend on it. An overwhelming majority of people support it.

Therefore, because of the lapse of time, more than 30 years, because of the precedential values attached to it, I think it would be for many of us a very difficult thing to see somebody who you knew was going to overthrow Roe at this point in time. And I'm old enough to know what it was like back when abortion was illegal. I know what it's like to see young women commit suicide. I know what it's like to see them go to Tijuana. And I don't want to go back to those days.

So this is a very powerful question for me. And I represent those women out there. And this is a huge, huge population, and I...

HUME: So is that filibuster material for you?

FEINSTEIN: If I believed he was going to go in there and overthrow Roe, the question is most likely yes.

HUME: All right. And would you regard that as a extraordinary circumstance?

FEINSTEIN: In my view, at this point in time, it is.

HUME: Senator Graham, you disagree, I gather.

GRAHAM: You know, Dianne's a good friend. That's a very dangerous thing to say. The question we should look at is if a person adheres to a pro-choice or a pro-life philosophy, that shouldn't be disqualifying because the country is split.

The question for a judge is will you follow the law, will you base your decision based on the briefs, the argument and the facts, and not a personal agenda.

This idea that you've got to show an allegiance to Roe v. Wade to get on the court, and if you won't show an allegiance to it — if you have to come to the committee and say under no circumstances will I entertain an argument to look at Roe v. Wade anew, I think that's very unfair.

That did not happen on Clinton's watch. If that becomes the new standard, we're taking the whole judiciary and boiling it down to one issue, and we're going to disqualify great men and women who may disagree with an individual senator on that one issue. That would be bad for the judiciary. It would be bad for the country.

HUME: Senator, does your view of that issue — how likely is it, though, that if Senator Feinstein, for example, became convinced that he held this view, that she couldn't vote for him and would mount a filibuster — how convinced are you that your fellow members of the gang of 14, who, after all, can make or break a filibuster, would stand with you?

GRAHAM: All I can tell you is what I would do. If I believed a filibuster was generated because this fine man, who has been on the court for 15 years, would not pledge allegiance to upholding a particular case, and would have to say before he could get on the bench I won't listen to any arguments or facts to overturn that decision, then I would consider that not only not an extraordinary circumstance, a threat to the independence of the judiciary, and I would stop it in its tracks with my vote.

And I don't think many Republicans and hopefully many Democrats will go down that road, because we will destroy the judiciary's quality and qualifications over time.

HUME: Senator Feinstein, I asked you at the beginning of this interview whether there was any chance you could vote for this nominee. Let me ask the question in a somewhat different way. Do you think there's any chance this nomination can be stopped?

FEINSTEIN: I think it's premature. Look.

HUME: OK.

FEINSTEIN: I've always taken the position — I'm not going to — I'm going to keep an open mind through the hearing. You asked me questions.

HUME: Right.

FEINSTEIN: I tried to answer them.

HUME: Gotcha.

FEINSTEIN: I'm going to keep that open mind. There are going to be a number of issues discussed. Some are more sensitive than others. That's just the way it is. And then a decision will be made when all the evidence is in.

HUME: Senator Feinstein, it was nice to have you. Thank you for coming in.

FEINSTEIN: It's great to be here.

HUME: Senator Graham, thanks for getting up early for us down there in South Carolina. It's good to have you, sir.

GRAHAM: Thank you.