Transcript: Senate Whips on 'FNS'

The following is a transcribed excerpt of "FOX News Sunday," May 15, 2005.

CHRIS WALLACE, FOX NEWS: The Senate's Republican leadership has announced that long-awaited showdown over judges will finally come to the Senate floor this week. There will be a vote on the so-called nuclear option to change the rules on filibusters. That is, unless there is some last-minute deal.

Here to discuss what's ahead, two Senate leaders: The Republican whip, Mitch McConnell, who joins us from Fox News headquarters in New York; and the Democratic whip, Dick Durbin, who's in Chicago.

Senators, welcome back. Good to have you both with us.


WALLACE: There are reports of intense negotiations now to head off a showdown on the nuclear option.

Senator McConnell, would you like to see a compromise, and what do you think are the chances that there will be one?

U.S. SENATOR MITCH MCCONNELL, R-KY, SENATE MAJORITY WHIP: What I'd like to see is for us to get back to the way the Senate operated for 214 years prior to the last...

WALLACE: Senator McConnell, I'm going to have to interrupt for a second. Even though you're in our studio, we seem to have your voice but not your picture.

So, while we fix that, let me ask Senator Durbin, and we'll hook you back up so we can see you as well as hear you.

Senator Durbin, what do you think of the chances for a compromise and would you like to see one?

DURBIN: I'd like to see one, and I know Senator Reid, and I have been working with the entire Democratic caucus to find six Republican senators out of 55 who will step forward and join us in preserving the traditions of the Senate. For over 200 years, we've had unlimited debate when it comes to nominees and legislation.

And this nuclear option — and that was the term that was coined by Senator Trent Lott: a nuclear option — would create a constitutional confrontation that is not in the best interest of our government, certainly not in the best interests of the Senate.

We think we're down to trying to find maybe one or two Republican senators who will stand up for the traditions of the Senate, and not try to change the rules in the middle of the game.

WALLACE: Before we get to specific vote counts here, Senator Durbin — and let me just say, folks, we're working on this technical problem with Senator McConnell — in one potential compromise, the Democrats would agree that some or all of the president's nominees would get a vote in return for the idea that there would be no change in the rules perhaps until the end of next year.

Could you accept granting most or all of the seven presidential nominees who have been blocked a vote on the floor if there is no change in the filibuster rules?

DURBIN: Well, first let me say that there are only four that are truly contested, four judicial nominees who have been rejected by the Senate at this point and have been resubmitted by the president. That's never been done before. It's being done by this administration to create this confrontation over the president's power.

We are prepared to talk to our colleagues on the Republican side. It is critically important for us to preserve this constitutional protection of the right of the Senate, this check and balance over the power of the president.

And I think Senator Reid has shown himself to be prepared to sit down with Senator Frist and work this out. I hope we can.

WALLACE: Senator McConnell, I'm very happy that you're back in picture as well as in sound. Let me ask you about the possibility of this compromise.

The Democrats allow a vote on almost all or all of the seven blocked nominees in return for what you've promised, not to change the rules. Could you accept that deal even though it means the Democrats would retain the right to filibuster future nominees to higher courts?

MCCONNELL: Look, we've been talking continuously on this. Senator Frist has been talking to Senator Reid. I've been talking to Senator Reid.

What we'd like to do is to get back to the way the Senate operated quite comfortably for 214 years prior to the last Congress, where admittedly it was possible to filibuster for the purpose of defeating judicial appointments. It's just that it was never done.

I mean, always nominees that enjoyed majority support — as all the president's nominees have enjoyed majority support — were given an up-or-down vote. Or if there were a few recalcitrant senators, both leaders would join up, file cloture, get a vote on cloture, which cuts off the debate and guarantees an up-or-down vote.

You know, Priscilla Owen, who is likely to be one of the first called up, has been languishing now for 1,000 days. My good friend Dick Durbin back in 1998 said, "If after 150 days languishing on the executive calendar, that name has not been called up for a vote, it should be. Vote the person up or down. They're qualified or they are not".

Dick had it right in 1998. If it was good enough under President Clinton, it ought to be good enough under President Bush.

Yes, we are continuing to talk. There will be an opportunity some time in the debate for senators to vote on cloture.

If cloture were invoked, obviously we'd be moving back to the way this has been handled in the past, and moving toward giving all judges an up-or-down vote, as was the courtesy during the Clinton years.

WALLACE: What seems apparent from all this talk of compromise is that there is still some uncertainty on both sides as to whether or not the Republicans have the 50 votes — the 50 votes plus, of course, the tiebreaker from the vice president — to be able to invoke the so- called nuclear operation.

You're the two whips, the chief vote-counters for your respective parties.

Senator McConnell, let me start with you. Do you have the 50 votes plus one?

MCCONNELL: Well, I haven't given up on the possibility that we might have 60 votes, including some Democrats who've been whispering in our ears that they believe that this ought to be defused, and that we ought to get back to the way we handled it under President Clinton, where, for example, we had two very controversial, very liberal judges, Paez and Berzon that some of the people on my side didn't want to get an up-or-down vote.

The leaders at that time, Senator Lott and Senator Daschle, joined together, filed cloture and encouraged all of us to invoke cloture so there would be an up-or-down vote. I voted for cloture on two judges that I really didn't like, that I voted against them. They're now on the ninth circuit. They've been there for five years.

So we'll have a cloture vote at some point here. A number of Democrats have been whispering in my ear. You know, maybe that would be a good time to defuse the controversy, by invoking cloture on either Justice Owen or Justice Janice Rogers Brown, who the majority leader has indicated are the two that we're going to focus on this coming week.

WALLACE: Senator Durbin, do the Republicans — does Senator Frist and McConnell, do they have 50 votes? Do they have 60 votes?

DURBIN: I can tell you at this point, the Democrats are united, all 45, with Senator Jeffords joining us. We feel that there are at least four Republican senators who feel as we do and we feel that there are several who are making up their minds at the last moment.

It is a critical question and it's one that goes to constitutional values.

And since Senator McConnell as looked in the Congressional Record and read some of the things that I've said, I'd like to remind him that after Richard Paez came up after the cloture vote, that he personally voted to indefinitely postpone the vote on Richard Paez.

So this fact that everyone's entitled to an up-or-down vote, apparently some of my colleagues on the Republican side suffer from a little political amnesia here. They've been voting for cloture against Clinton nominees and judges for many, many years.

Unfortunately, they have to concede the obvious. Unlimited debate and a filibuster has been part of the Senate rules for over 200 years. To remove that now is to really strike a blow at a constitutional value and to diminish the role of the Senate when it comes to checks and balances in our government.

WALLACE: There was a new controversy this week that involved one of the nominees and that's Michigan State Judge Henry Saad. And I want to ask you both about that. It all started when Democratic leader Harry Reid made the following comments about Judge Saad. Let's watch.


U.S. SENATOR HARRY REID (D-NV): All you need to do is have a member go upstairs and look at his confidential report from the FBI. And I think we would all agree that there's a problem there.


WALLACE: Senator Durbin, isn't that unfair to bring up a confidential FBI report that senators are not allowed to respond to publicly, and that in the case of Judge Saad, he's not allowed either to read or to respond to?

DURBIN: Well, I can tell you that there's been controversy swirling around several of these nominees. I'm not going to go into any particular nominee.

But it really troubles us sometimes when the assertion is made on the other side that there's absolutely nothing wrong with this nominee or that nominee, when we know that there are serious questions.

I'm not going to address this as to Mr. Saad or any particular person. But I would hope that senators on both sides of the aisle would be sensitive to the fact that there are some nominees who have problems.

WALLACE: But the fact is, Senator Durbin, you may not want to address Judge Saad but your leader, Harry Reid, did. Don't you see anything — you talk about anything wrong, isn't there something wrong with bringing up Saad's confidential FBI report when neither he nor his defenders can fight back?

DURBIN: There's been a lot written in the press. There have been many things said publicly and privately. And I am just not going to go into this area about whether or not Harry Reid raised something that was new with that statement.

WALLACE: Senator McConnell, did Senator Reid violate Senate rules by bringing up the confidential FBI report on Judge Saad?

MCCONNELL: Look, we all know that we are not supposed to comment on confidential FBI reports. I think we'll just let it stand there. That is not the way senators should react to confidential FBI reports.

WALLACE: I want to go back, if I can, with both of you to the vote-counting on this judicial filibuster, the so-called nuclear option. Because, according to Fox News reporting, there are at this point three key swing vote Republican senators still out there: Senators Chuck Hagel, Arlen Specter and John Warner. Can either of you say that you know how any of those three senators is going to vote on the nuclear option?

MCCONNELL: Well, first let me say, we ought to call this the Byrd option because Senator Byrd employed the technique of having the majority vote on a precedent interpreting the rule, on four occasions when he was majority leader.

So if you're asking about the Byrd option, as it may apply to these judges, these senators will have to speak for themselves if they want to issue a public statement about how they will vote if we have to exercise the Byrd option.

MCCONNELL: My view is that if we have to exercise the Byrd option, if all additional discussions fail, if the cloture vote on one of these judges fails, I believe we will have the votes to exercise the Byrd option if that becomes necessary.

WALLACE: Specifically, though, do you, as the Republican whip, have commitments — if you don't want to name names, do you have commitments from any of those three Republican senators?

MCCONNELL: Well, you just said, I don't name names. I said I will predict that if we have to exercise the Byrd option, we'll have the votes.

WALLACE: And, Senator Durbin, finally to you. Do you know how any of those three senators are going to vote?

DURBIN: Well, I can tell you that we sense that at least one or two of the names that have been mentioned are very seriously considering coming our way or at least working toward a compromise to avoid this nuclear option and constitutional confrontation.

I disagree with the list. And as Senator McConnell said, we don't want to get into the names of our colleagues.

But I can tell you quite candidly, it's going to come down to two or three senators who are going to make the difference. Many of these senators are working hard, really working hard to try to find a way to avoid this crisis.

It gets down to this point: senators come and go. What we're about to do here, a constitutional change that devalues the Senate and changes a tradition of over 200 years, it would be a bitter legacy for those who are involved in it.

WALLACE: Gentlemen, we're going to have to leave it there. Senator McConnell, Senator Durbin, thank you both so much for talking with us today.

MCCONNELL: Thank you.

DURBIN: Thank you.