Transcript: Senators Weigh In on Alito Nomination

The following is a transcribed excerpt of 'FOX News Sunday,' Jan. 15, 2006.

CHRIS WALLACE, FOX NEWS: Judge Samuel Alito's 18 hours of questioning for his Supreme Court nomination not only shed light on him but also on the partisan divide in Congress. We're joined by two key members of the Senate Judiciary Committee, Republican Lindsey Graham, who joins us from South Carolina, and Democrat Charles Schumer, who's in our FOX News studios in New York.

Senators, welcome back to "FOX News Sunday".



WALLACE: Let's start with the most memorable if not the most important moment in those hearings, and that, Senator Graham, is when you expressed sympathy for Judge Alito and his wife began to cry. Let's watch.


GRAHAM: Are you really a closet bigot?

SAMUEL ALITO, SUPREME COURT NOMINEE: I'm not any kind of a bigot.

GRAHAM: No, sir, you're not. Judge Alito, I am sorry that you've had to go through this. I am sorry that your family has had to sit here and listen to this.


WALLACE: Senator, this is a confirmation hearing for one of the most important jobs in the American government. What was so over-the- line that you and Mrs. Alito both got emotional?

GRAHAM: Well, I thought the idea that Judge Alito was being treated -- guilt by association, that the article that he didn't write by someone he didn't know that expressed some outrageous comments, along with the constant questioning of his ethics just took a toll on the whole hearing. I thought it was out of bounds.

Senator Schumer, I would like to say, did not engage in this, but I wanted to let her know and Judge Alito know that I was not buying for one moment the way to define Judge Alito is based on an article written by somebody he didn't know.

I was going to define him based on all the evidence before the committee from a variety of sources to say he was a good man. If we don't watch it, we're going to run good men and women away from wanting to be judges. So I thought it was not the highlight of the hearing, that whole episode.

WALLACE: Senator Schumer, as Senator Graham pointed out, you did spend most of your time questioning Judge Alito on constitutional issues but, in fact, you also questioned him about this conservative alumni group at Princeton that had raised concerns about admitting women and also minorities. Let's take a look at that.


SCHUMER: Why that group, with its tawdry history, even public then, although you said, in all fairness, you didn't know about it, but why that group? Why was it plucked out and put on the application?


WALLACE: By then, Senator Schumer, this Princeton issue had been gone over again, and again, and again. Did you, and perhaps to a greater degree other Democrats do, just what Senator Graham says you did?

SCHUMER: Well, I don't believe so. Look, first, hearings like this are long and they're tough. They should be -- tough questions should be asked. This is the only time we have a chance, the American people have a chance, to see the nominee.

Judge Alito, out of all the organizations he was a member of, chose these two to put on his 1985 job application. And I don't think it was wrong to ask him about the organization, why he picked this organization out of all of them to list.

And he had his opportunity, of course, to distance himself from comments that the magazine of this organization made, and that was that. Had we not asked the questions, that would have been a dereliction of responsibility.

And, Chris, let's just look at it if the shoe were on the other foot. If a Democratic president nominated somebody who was part of a radical, left-wing organization in college or later, of course the Republicans would ask questions. And I don't think it's illegitimate.

The most important issue is the judicial philosophy, as you mentioned. That was the far and away 95 percent of my questioning. But I don't think it's unfair, at this one time when you have a chance to ask a nominee a question, to ask him about an organization. Then once he distances himself, you leave it alone.

WALLACE: All right.

SCHUMER: And I think that's what happened.

WALLACE: Senator Graham, let's step back and take a bigger look at this issue. Have these confirmation hearings outlived their usefulness? You know, one side attacks the nominee. The other side spends their time rehabilitating. The nominee has been so carefully prepped that he will say absolutely nothing that will get him into trouble.

Senator Biden was so fed up at the end of this he said maybe you should just take the nomination straight to the Senate floor.

GRAHAM: Well, I think they do serve a valuable purpose in the sense that the American public can watch for over three days 700 questions thrown at Judge Alito and get some idea of who the person is in terms of who's going to serve on the Supreme Court.

I think between Roberts' and Alito's hearing, the judiciary has done well. That will build public confidence. But here's the problem. Before Judge Alito ever spoke, millions of dollars worth of ads were being run by left-wing groups against the guy, the same people that run ads against me. It gets to be polarizing before he's ever sworn in.

We've become a trial, not a hearing, where they feel like they need to answer to the left-wing groups and try to push their agenda. We feel like we need to defend Judge Alito, and very seldom do you get probing inquiries.

The second day of the hearing, after the blowup with Ms. Alito, I think Chuck Schumer asked very good questions about the role of a judge and his philosophy. They can serve a purpose. They do serve a purpose. But they're way overly political, and they're more like trials than they are hearings, and we need to stop it.

WALLACE: Senator Schumer, have these hearings become pointless as a way to find out what the nominee actually thinks?

SCHUMER: Well, it's a very good question, and obviously nothing can compel the nominee to answer questions. I think Arlen Specter puts it well. When you're the nominee, Democrat or Republican, you answer as few questions as you can get away with.

Having said that, I still think the hearings show a useful purpose. They're able to bring across a record. Judge Alito had a number of things that he had stated in early years about the Constitution, a number of rulings on the bench that were quite controversial, and the hearings give the public as well as the Senate a chance to hear them.

The way to make this better -- and Lindsey is right that they're too partisan now. Of course, he'll have to admit there are right-wing groups doing as many incendiary ads as there are left-wing groups. And we should ignore those groups.

But I'd like to go back to the days where presidents consulted both parties, real consultation, before making a nomination. Lindsey always mentions Ruth Bader Ginsberg. Bill Clinton called up Orrin Hatch, the then ranking Republican on the Judiciary Committee -- Democrats had 57 votes; they didn't need Republican votes -- and asked him which of the nominees would be most acceptable, realizing that none of them were going to match Orrin Hatch's views, and it led to much better hearings. I would hope we could go back to that.

WALLACE: But let me ask you about that, Senator Schumer, because the fact is here's Ruth Bader Ginsberg and Steven Breyer, both of whom made it very clear back in the 1990s that they were firmly in favor of Roe v. Wade, they were in favor of choice, and yet they were voted out by the Senate Judiciary Committee 18-0, unanimously by Republicans and Democrats.

You talked about making it less partisan. Why don't you vote, for instance, for Alito or Roberts?

SCHUMER: Well, the fundamental question with any nominee to me is are they out of the mainstream. But let's remember what happened. President Clinton gave five or six...

WALLACE: But is Alito any more out of the mainstream than Ruth Bader Ginsberg?

SCHUMER: He may well be, and that's the fundamental question that we are assessing right now. Let me just mention, President Clinton gave five or six names to Orrin Hatch. Bruce Babbitt was one of them, for instance. Orrin Hatch said he is unacceptable, he's too far out of the mainstream. Clinton didn't nominate him. That's why it was 18-0.

No Democrat expects the president to nominate somebody who has our views, but if there were real consultation, a real back and forth, a real give and take, I think you could get rid of some of the partisanship.

WALLACE: Senator Graham, is it the President's fault that we have all this partisanship, that he doesn't consult enough with the committee?

GRAHAM: Quite honestly, no. President Bush is not the problem here. Ruth Bader Ginsberg went through the Senate with 96 votes. No one put up her writings or her associations to try to smear her. No one on our side held her views against Roe v. Wade against her. She got a vote based on qualifications.

What's happened here is a hijacking of the process by liberal special interest groups. Robert Byrd felt like he was well consulted on Roberts and Alito. This is a shifting of the blame. The blame lies from the politics of the left trying to destroy this man before he ever got to say a word in the hearing.

And they're never going to be pleased. Their goal is to overturn the election and take away from President Bush the rights that President Clinton enjoyed, and it's not going to happen.

WALLACE: Well, I want to ask...

SCHUMER: Chris, just one point I have to make. What about Harriet Miers and the hard right? They didn't like her. They hounded her so, and President Bush backed off. This is hardly just one side doing this.

GRAHAM: Well, I was on this show -- I thought she was treated unfairly. I thought people prejudged her.

SCHUMER: You're right, Lindsey.

GRAHAM: But the -- well, let me just finish this. It's kind of odd that Judge Alito -- once he was picked by the president, the ABA gave him a well qualified rating, and you had seven federal judges appointed by Clinton, appointed by Nixon, appointed by Johnson, appointed by Bush One coming to Judge Alito's aid to say that he's a fine judge, he's not an ideologue, he's a man great person of principle. So the actual...

SCHUMER: Lindsey...

GRAHAM: ... pick of Judge Alito...

WALLACE: Gentlemen, gentlemen, we're running out of time.


WALLACE: Gentlemen, we're running out of time, and I want to ask you two quick questions. First of all, just to finish up on Alito, two Democratic members of the so-called Gang of 14 say they see no reason for a filibuster. Some Republican moderates say they see no reason for a filibuster.

Senator Graham, is the filibuster option dead in this case?

GRAHAM: If there's a filibuster of this man based on his qualifications, there would be a huge backlash in this country. The record rejects a filibuster. That would not be advising and consenting. That would be hijacking the election.

WALLACE: Senator Schumer?

SCHUMER: Well, the bottom line is we're still finishing the process. Written questions have to be answered. I submitted a whole bunch. So it's premature to say anything till we fully assess the record.

WALLACE: All right. We have about a minute left. I'd like you to share it evenly.

And I'll start with you, Senator Graham. Is the president doing enough to stop Iran from developing its nuclear program?

GRAHAM: I think he's doing fine. The Europeans are coming on board. I look forward to working with Senator Schumer to make sure that Iran is contained, because they're a huge threat to the world and the region, and we need to work together with our European allies to stop them from developing a nuclear weapon. All options should be on the table.

WALLACE: Senator Schumer?

SCHUMER: Well, I agree with what Lindsey said. Just one final point. The Europeans are on board. We have to bring the Russians and the Chinese on board, because if we're going to put...

GRAHAM: Absolutely right.

SCHUMER: ... an economic -- if we're going to put an economic stranglehold on Iran, which we should be doing -- it's preferable to military, any military option, and may be more effective -- we need the Russians and Chinese.

They need stuff from us. They need trade. They need all kinds of assistance. We ought to play hardball with them. And if President Bush were to do that, either publicly or privately, I think he'd get broad bipartisan backing.

WALLACE: Senator Graham, Senator Schumer...

GRAHAM: I agree.

WALLACE: ... we want to thank you both. Talk to you again soon.

SCHUMER: Thank you.