Transcript: Sens. Specter, Graham on 'FNS'

The following is a rush transcript of the May 31, 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: With the nomination of Sonia Sotomayor to the Supreme Court, we have brought in two leading members of the Senate Judiciary Committee who she will face during confirmation.

From Philadelphia, Arlen Specter — a veteran of many hearings as a Republican. He's to a Democrat.

And here in studio, Lindsey Graham, who was and is a Republican.

Senators, welcome back to "FOX News Sunday."

SEN. LINDSEY GRAHAM, R-S.C.: Good morning.

SEN. ARLEN SPECTER, D-PA.: Good to be with you.

WALLACE: Thank you.

GRAHAM: Good morning, Arlen.

WALLACE: Let's start with Judge Sotomayor's controversial speech back in 2001 in which she said she hoped that a wise Latina woman judge would more often than not reach a better conclusion than a white male judge.

On Friday President Obama tried to walk that back. Let's watch.


PRESIDENT BARACK OBAMA: I'm sure she would have restated it, but if you look in the entire sweep of the essay that she wrote, what's clear is that she was simply saying that her life experiences will give her information about the struggles and hardships that people are going through. That will make her a good judge.


WALLACE: Senator Graham, does that clear it up for you?

GRAHAM: No, she didn't say that at all. What she said is that based on her life experiences, that she felt a Latina woman, somebody with her background, would be a better judge than a guy like me, a white guy from South Carolina.

And it is troubling, and it's inappropriate, and I hope she'll apologize. And if I had said something like that or someone with my background and profile, we wouldn't be talking about this nomination going forward.

But we'll listen to what she has to say. But she's got to prove to me that if I found myself in court with a Latina woman in front of her I'd get a fair shake, and that's up to her to do.

WALLACE: Well, let me follow up. Newt Gingrich says that she's a racist. Rush Limbaugh compares her to former Klansman David Duke. Are they right?

GRAHAM: No. They interject themselves in the debate. They've got an audience to entertain, and Newt's a political commentator. I'm a United States senator.

But I do know this, that statement is not about talking abut her life experiences. It's getting from her life experiences a superiority based on those experiences versus somebody else in society. And I don't want that kind of person being a judge in my case. But I don't think she's a racist.

I think she's — she should be proud of what she's accomplished in life. But to lead to the conclusion that all the hardship she has gone through makes her better than me is inappropriate.

WALLACE: Senator Specter, are you troubled by Judge Sotomayor's comments and also about President Obama's empathy remarks? What happened to the idea that justice should be blind and not favoring one side over another?

SPECTER: Well, when President Obama said that, I think he's looking for diversity, and I think Judge Sotomayor brings that.

But let's put her comment in context with the whole speech, and it didn't stand out all that much in context. And further, put it in context with her whole record. She has an extraordinary academic record — Princeton and Yale, a prosecutor, have experience in international trade matters, on the district court, trial court experience, circuit court of appeals.

So she has an extraordinary record. And I believe that it's fair to ask her about the question, but she has a long solid record to show that she's fair and not biased.

WALLACE: But, Senator, when she said — and those were her words — that I would think that more often than not — I would hope that a wise Latina woman judge would reach better conclusions than a white male judge, what do you think she meant?

SPECTER: Well, I think she meant that somebody with her experience has something to add.

Look, we live in a very diverse society, and it is really surprising that it took until 1967 to have an African American, Thurgood Marshall, on the court, or that it took until 1981 to have a woman, Sandra Day O'Connor, on the court. And still, there are only two women.

And that in this kind of a diverse society, if you go back to the Supreme Court discussion room, very small room, small table, nine people sit around and decide monumental questions, and of — the diversity and the point of view of Latina woman is significant. It adds to the mix.

WALLACE: Senator Specter, the issue of identity politics has been raised specifically in the Ricci case, a case that she decided as part of a three-judge panel earlier this year, in which she sided with the city of New Haven, throwing out a promotion exam in which 20 white and Hispanic firefighters would have been eligible for a promotion but no African Americans.

One, do you think that she was right on Ricci? And does it raise concerns that she made a decision based on race?

SPECTER: I think she was well within the ambit of discretion of a judge. Different judges see issues differently. And you have Supreme Court deciding cases 5-4.

But I think her judgment there was very sound. Is race a factor? Well, it really is in our society. There's no hiding from it, notwithstanding all of the progress which has been made.

And the New Haven firefighters case is like so many tough ones. You want to be sure that the white applicants get a fair shot, and you want to be sure that the minority applicants get a fair shot. And a very tough call, but she made a justifiable call, in my legal opinion.

WALLACE: Senator Graham, do you have a problem with Ricci? And what about the comparison that some of her supporters make to what Justice Alito said during his confirmation hearing? Let's watch:


SUPREME COURT JUSTICE ALITO: When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that in to account.


WALLACE: Senator Graham, what's the difference?

GRAHAM: Well, I think the difference is that we're talking about a comment she made about her life experiences basically making her superior to someone, not that I would add something new to the court, that the people on the other side basically have less to offer than I do.

How this case turns out, I don't know. It's a difficult fact pattern. But the judicial temperament of this judge is in question, her philosophy.

I know this, that if I use the Obama standard for confirmation, she would never get my vote, because Obama — President Obama as senator voted against Alito and Roberts, two highly qualified people, saying that you need to look at the philosophy, ideology and legal record.

If I do that, if I look at her philosophy, her legal philosophy, which I think is very activist in nature — this empathy word is just a code word for activism. If I look at her ideology that's being expressed in some of these cases and that one comment, I could never vote for her as a Republican.

And President Obama better hope that Republicans treat her better than he treated President Bush's nominee.

WALLACE: Let me bring you another case which may raise the issue of activism and trying to make policy from the bench. This year, Judge Sotomayor joined a ruling that it is settled law that the Second Amendment applies to federal restrictions on guns or weapons, the right to bear arms, but not on state laws.

And she based this on an 1886 Supreme Court ruling rather than the ruling that the Supreme Court made just last year upholding an individual right to bear arms.

Senator Graham, do you see pattern or do you see that as an instance of Judge Sotomayor making policy from the bench?

GRAHAM: If the — if the legislative law doesn't sit with her, she finds a way as a judge to get around it, in my opinion.

When the Congress or the legislature comes up with a law that she doesn't like or feel comfortable with, she's looking for a way to get around that law rather than living within the confines of the way the law is written.

That's activism at its core, and that case that you just mentioned expresses that. But having said that, she is going to get firmly treated and fairly treated. Miguel Estrada was Hispanic, nominated to one of the highest courts in the land. He didn't get very well treated.

WALLACE: This was an appeals court judge nominee from George W. Bush.

GRAHAM: Yes. I intend to do better than our Democratic colleagues did with Ms. Sotomayor.

WALLACE: Senator Specter, in voting for John Roberts to be a Supreme Court justice, you said the following. Let's watch:


SPECTER: He emphasized the point that judges are not politicians and that judges really ought to be having a view of the law which does not inject their own personal views into the law.


WALLACE: Senator Specter, can you honestly say that Judge Sotomayor's statements and rulings live up to that standard?

SPECTER: Well, Chris, yes, I can. Let's evaluate her in the context of the hundreds of opinions which she has written. You take one statement she made many years ago, you take a couple of cases — and they ought to be scrutinized, and I'm going to participate in asking firm questions, probing questions. That's the job of a senator under the Constitution.

But evaluate Judge Sotomayor's record in the totality of her cases, not just picking a snatch here and a snatch there.

WALLACE: Senator Specter, given the fact that you just switch parties and just became a Democrat, don't you, as matter of practical politics, have to vote for President Obama's nominee?

SPECTER: No. No. I am duty-bound under the Constitution to exercise independent judgment under separation of powers. Look here, one of the most highly touted Republican nominees for the Supreme Court ever by a Republican president was Judge Bork. And he was of my own party.

And I thought it was my duty to analyze what Judge Bork had to say about original intent and to make an independent judgment under separation of powers. And my record is pretty obvious in having voted on an independent basis, and that's a senator's responsibility. And, Chris, you can be sure I'm going to discharge it.

WALLACE: Let me ask you both about the question of schedule.

Senator Graham, President Obama — the White House is pushing for this all to be decided, a confirmation vote, not just by the Judiciary Committee but by the full Senate before you go on August recess about the 7th of August. Are you going to do that?

GRAHAM: I don't think that's practical. I don't think that's appropriate. Chief Justice Roberts was voted on September the 29th. We've got a lot to do. We don't really know much about her. The FBI report is not done yet. If you use the Alito-Roberts standard, we're looking at September. And I'm not going to cut this sort. She is somebody that has accomplished a lot in America, but my question is does she really understand what America is about. To come as far as she has is a great compliment to her.

But we don't need to take those experiences and say somebody else is smaller because they're different. And I hope she will apologize for the comment we're all talking about.

WALLACE: Senator Specter, can you get it done and should you get it done before the August recess? I can remember when you were on the Republican side you used to jealously guard your discretion to hold hearings and schedule votes when you wanted to.

SPECTER: I think it can be done by the end of the July session. Let's take a look at the record and evaluate all of the extent of the paperwork. But from this perspective, I think it's do-able. And I think it's important to have her on the bench when the court starts to consider in September the applications for certiorari, what cases they're going to hear.

We might have to work Mondays and Fridays to do it, but we can get it done.

WALLACE: Senator Specter, I'm — can you hear me still, sir?

SPECTER: Sure do.

WALLACE: Oh, good. OK, because we wondered — we thought there might be a technical problem. I've got about a minute left and I want to ask you two quick questions.

You admit — and you were very open about it — that you switched parties because, in large measure, you faced a very tough Republican primary. Now Congressman Joe Sestak says that you're more concerned about your job than you are about your state and that he may oppose you in the Democratic primary.

First question: Are you certain that you can beat Joe Sestak in the Democratic primary?

SPECTER: Chris, in a political campaign there's no such thing as certainty. Listen, it's a free society. I didn't ask that the field be cleared. There was no discussion of that. Everybody ought to run if he or she wants to run. And I'm ready to take on all comers.

WALLACE: And finally, as the newest and most junior Democrat on the Judiciary Committee, instead of having that position right next to the chairman, you're going to be all the way down at the end of the table and probably questioning Judge Sotomayor at 1:00 in the morning.

How do you feel about your loss of status, sir?

SPECTER: I feel that I can handle it. Listen, it wasn't next to the chairman. I was the chairman during the Roberts and Alito confirmation hearings. I was way down the line when Judge Bork was up for confirmation, and my voice was heard loudly and clearly.

WALLACE: Well, it always is.

Senator Specter, Senator Graham, I want to thank you both so much for joining us today.

GRAHAM: Thank you.

WALLACE: It should be an interesting summer.

SPECTER: Nice to be with you. Thank you.

WALLACE: Thank you.

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