Transcript: Sens. Dodd, Cornyn on FOX

The following is a transcribed excerpt of "FOX News Sunday," Sept. 4, 2005.

CHRIS WALLACE, FOX NEWS: With the Senate Judiciary Committee set to begin hearings on Tuesday on John Roberts's nomination to the Supreme Court — although those may now be postponed — speculation has already begun about who the president will choose as the next chief justice.

For more, we welcome Senator John Cornyn of Texas, a member of the Judiciary Committee, and Senator Chris Dodd of Connecticut, a top Democrat.

Thank you both, gentlemen, for coming in on such short notice.

U.S. SENATOR JOHN CORNYN, R-TX: Thank you.

WALLACE: Let's start with Rehnquist's legacy.

Senator Cornyn, what mark did he leave on the court in his 33 years?

CORNYN: Well, I want to say first, Chris, what a model of courage he was, serving under admittedly, as we all know, difficult circumstances. But Chief Justice Rehnquist was perhaps one of the most conservative members of the court.

I think, if you look at his mark on the court's jurisprudence, two areas jump out. One is criminal justice, where the Warren court was viewed as being perhaps too favorable toward criminal defendants in some of their rulings. I think many of those were scaled back during Chief Justice Rehnquist's tenure.

And he also, I think, began to restore some of the balance under our federalist system, recognizing that states and the federal government are partners, and one is not necessarily subservient to the other.

Those are two areas that kind of jump out to me.

WALLACE: Senator Dodd, what do you see as Rehnquist's legacy? And I think it's fair to say that you must have disagreed with much of it.

U.S. SENATOR CHRISTOPHER DODD, D-CT: Well, I did. I saw him begin to moderate in time. He wasn't as conservative, in my view, toward the end of his tenure as he was at the outset.

And certainly, while he embraced consistent views on abortion, prayer in school, I often wondered — even though he voted in the minority in those cases — there was no really fundamental change, as it was pointed out in your earlier report.

He was a good administrator. I think you don't get much credit for being a good administrator, but he really was. I think the court became much more efficient, its workload was manageable.

He strenuously objected to establishing a third level. There was an argument a few years ago to establish a level of the judiciary between the appellate and the Supreme Court.

He didn't want to expand the court. He argued strenuously that the Congress ought to not federalize every offense in America but leave a lot of these matters to the states — as Senator Cornyn just pointed out.

So those are very positive things. He did a very, very good job during the impeachment process. I was very impressed with just his demeanor, the importance of how — just sitting there every day and how he kept that together during one of the more critical moments in our history.

So he has a good legacy in those areas.

WALLACE: The chief justice's death raises a number of questions. And most immediately — and let me ask you this as a member of the committee, Senator Cornyn — will the confirmation hearings for John Roberts set to start in just two days, will they be postponed?

CORNYN: I know the majority leader and the Senate leadership — bipartisan leadership — is currently looking at that, Chris, to see what the appropriate schedule should be, whether we should stay on the schedule with the confirmation hearings for John Roberts which are to begin on Tuesday or delay those.

My own feeling is that perhaps the best tribute we can pay to the chief justice would be to continue on with those hearings as scheduled.

One thing we want to avoid is having two vacancies on the Supreme Court when the court reconvenes the first Monday in October — because it's very likely we'll have at least one vacancy.

So my preference would be for us to proceed with the hearings.

WALLACE: Senator Cornyn, should the president consider nominating Roberts now as chief justice?

CORNYN: That's only a question he can answer, Chris. I'm not trying to avoid it, but the fact is, I know that they've looked at a lot of different potential nominees for the Sandra Day O'Connor slot.

I'm sure they've been thinking about this. This is not a surprise, given the thyroid cancer that the chief justice has been suffering from for almost a year.

He actually — you talked about his sense of humor. I think he must have gotten a big kick out of the head fake that he threw to the media and the public, because we all thought he was going to resign first and not Sandra Day O'Connor but, in fact, she did.

So we'll see how that develop. But I don't think any of us know right now.

WALLACE: Senator Dodd, what does this do now to Democratic strategy? You're now going to have not one but two vacancies on the court; does this mean that you fight the Roberts nomination harder because you know there's another one coming down? Does it mean that you kind of hold your fire on this nomination and wait for the next one?

How do you play this calculus?

DODD: Well, obviously, there's a Democratic strategy in all of this. But let me suggest a couple of things. One, I think Senator Cornyn's right. I think the legacy of Justice Rehnquist is to keep working here. This was a guy who was literally working — as I'm told — up until last Friday.

So I think we ought to go forward. Now, obviously, there will be some time off for services and so forth this week, but I think beginning the process makes some sense.

Secondly, I'd recommend — I mean, I can't, considering the source of the recommendation — but I think the president ought to maybe call Sandra Day O'Connor and ask her to hold on and not step down on the assumption that Judge Roberts will be confirmed — and I don't know that but I'm assuming that will probably be the case.

And rather than trying to do all of this, jam all of this into a short period of time.

DODD: We've got the tragedy, obviously, in the Gulf state area, which compounds problems. You've got Iraq and Afghanistan. We've got work left to do in the Congress.

To try and do all of this in a short period of time, asking her to stay on, at least until January, gives the president a bit more time to think this process through, rather than trying to jam decisions.

You could be faced with three positional changes here, which we've never done in the history of the country. And in light of everything else that's happened this week with Katrina, it seems to me to be advisable maybe to slow this process down a little bit.

WALLACE: So let me just explain that, because if he chooses somebody from inside the court — Scalia, Thomas — and promotes them as chief justice, that means that there have to be hearings and a full confirmation of somebody who is already in the court as the chief justice of the court.

DODD: That's correct. And then filling that spot that moves up.

WALLACE: But how would that work? If Sandra Day O'Connor stayed on, then what position would...

DODD: Well, you would have a full compliment of the court, at least through this period of time.

WALLACE: Who becomes chief justice?

DODD: Well, he could name someone temporarily. Someone could assume that responsibility. I assume there's some way to do that over that session in October.

What I'm saying is it gives the president more time over the fall to think this thing through, rather than trying to jam these decisions in a very short amount of time.

WALLACE: Senator Cornyn, what do you make of this idea? As a reporter, the bottom line I read is they would like to keep Sandra Day O'Connor on the court as long as possible.

CORNYN: Well, she's done a good job, a good conservative.

(LAUGHTER)

Well, Justice O'Connor has been an outstanding justice on the court, although a swing justice.

But the truth is, we can do this. As Senator Dodd says, and I agree, obviously there's a lot happening now. But if we just do what we're prepared to do, and that is to go forward with the Roberts hearing as scheduled — we have voted out of committee by the mid part of September; we have an up-or-down vote on the Senate floor by the end of September — we can get him on the court, if that's the will of the Senate, before it reconvenes.

The president I'm sure has considered this possibility, that the chief might not be able to serve any longer or might die unexpectedly. And so, I don't see any reason why we need to slow down. Things operate slowly enough in Washington. We ought to just proceed with all deliberate speed.

WALLACE: We are beginning to run out of time. You know, there's a whole list of names that were being mentioned when they were looking for the vacancy for Sandra Day O'Connor: Attorney General Gonzales, several appeals court judges, Michael Luttig, J. Harvey Wilkinson, Edith Clement.

Senator Cornyn, I'll ask you first. Any that you particularly like or any that you particularly don't like?

CORNYN: I really don't have any favorites. This is one of those things, I realize, you know, with the speculation game. But honestly, the only person's opinion who matters in all of this is the occupant of the White House, President Bush. And he gets to choose, not the Senate. And then we get to do our job, which is to provide the advice and consent contemplated under the Constitution.

WALLACE: Senator Dodd, of the people that I mentioned, are there any that you think would make less of a fuss and get through the Senate with easier sailing and some that would create heavier waters?

DODD: Maybe. But let me urge the president to do what he did to a large extent with the Roberts nomination. He invited the leadership down of the Judiciary Committee, the Senate. There was at least some conversation of that consultative process, the advise and consent rule in the Constitution. And I'd strongly recommend, however he decides to proceed over the coming months, that he continue that process.

The American public need to be engaged in this process. It isn't just senators and the president. And so again, I make the point here, with the attention so galvanized, as it should be — we've got some tragedy, incredible tragedy occurring in the Gulf states; literally thousands of people — my friend and colleague here has 250,000 victims residing in the state of Texas as we speak here this morning because of the tragedy there — the American public need to be involved in this process.

And so I would again urge the president to consider about slowing this down a little bit, give us some time to focus on this, rather than trying to rush the process through.

WALLACE: Senator Cornyn, Senator Dodd, we want to thank you both so much for coming in, as we say, again, on short notice.

Thank you, both.