Transcript for January 8

MR. RUSSERT: And even though they had a more liberal, judicial philosophy than many members of the Senate, it was a Democratic president who had the right to make that nomination. If, in fact, Republicans supported Ginsburg and Breyer, why shouldn’t Democrats support Alito, who has been rated well qualified, the gold standard of the ABA, and whose philosophy may be conservative, but is no more conservative than Ginsburg and Breyer were liberal?

SEN. SCHUMER: Well, that’s the $64,000 question. If Alito is within the judicial mainstream, as everyone conceded that Breyer and Ginsburg were—most people didn’t think Breyer was much of a liberal. They thought he was a moderate. If he is within the mainstream, even if he’s a conservative, he will be approved. Some people may vote against him, because they say “He’s not my philosophy,” but there will be no attempt to block him.

That’s what happened with John Roberts. Clearly, I don’t agree with John Roberts’ judicial philosophy or views. I voted against him because he didn’t answer every question that I thought—or the questions in a full way that I think nominees have an obligation to be. But look at Alito. Let me just go over a few things that he’s said and done in his career. He was one of the very few justices to say that the federal government can’t regulate machine guns. Federal government has regulated machine guns since the days of John Dillinger in 1936. He...

MR. RUSSERT: Now, he will say that was the debate over the Commerce Clause. It was not only the possession but also the transport, and said if Congress changed the law to specifically include a reference to that, he would have no problem.

SEN. SCHUMER: Well, I’ve talked to him about this, and let me say he did not—I asked him would he change his position, particularly there’s a new case, Raiche, which even affirms even further the right to do this, and he wouldn’t give me an answer. We’ll see what he says at the hearings. That’s why the hearings are important.

Here are a few others. He said, for instance, that a 10-year-old girl could be strip-searched even though the warrant did not call for her to be strip-searched. Chertoff—Michael Chertoff, then a justice, conservative Republican justice, said that that was wrong and wrote the majority opinion.

He has said, for instance, in the past, that one man, one vote; something that’s accepted as a tenet of our democracy that you shouldn’t have one legislative district or congressional district with 20,000 people and one with 300,000 people. He said that was OK. And, of course, he’s the only nominee, other than Robert Bork, to say that he thought his own view was that the right to choose was not protected by the Constitution.

So he has said a whole number of extreme things, and then, you know, one final thing, very relevant to the times right now, in a speech before The Federalist Society in 2000, he said he believed in the unitary executive. That means the executive has all the power. It would mean you couldn’t have an FTC. It would mean you couldn’t have a 9-11 Commission. It might mean in a time of war, relevant to today, that you could have warrants issued so you could go into someone’s home without going to a judge.

These are things that edge on the extreme. And that’s why the hearings are so important, and that’s why, Tim, questioning Judge Alito is going to be really, really important. I haven’t made up my mind about how to vote and certainly whether to block him or not, whether to urge my colleagues in the caucus to filibuster. But he’s got to answer a lot of questions.

MR. RUSSERT: But you haven’t ruled out a filibuster?

SEN. SCHUMER: Have not ruled it out, no.

MR. RUSSERT: Senator Cornyn, let me pick up on the point that Senator Schumer raised about the right of abortion in the Constitution. As you well know when Samuel Alito applied for a position to be deputy assistant attorney general—and here is his job application. Here you see it, Alito, Samuel A., he wrote this: “...it has been an honor and source of personal satisfaction for me to serve in the office of the Solicitor General during President Reagan’s administration and to help to advance legal positions in which personally believe very strongly. I am particularly proud of my contributions in recent cases in which the government has argued ...that the Constitution does not protect a right to an abortion.”

That seems very clear, his personal view and his legal view, arguing that the Constitution does not provide a right to an abortion. Why can’t Judge Alito come forward and say, “This is my view. I don’t find the right of abortion in the Constitution”?  Why doesn’t he just say it?

SEN. CORNYN: Well, Tim, the—obviously Judge Alito joins other groups of distinguished legal scholars and jurists who have questioned the decision in Roe v. Wade. Ruth Bader Ginsburg and Laurence Tribe and others have said it’s a poorly reasoned decision. But the important issue is not what his opinion was when he applied for a job in 1985 but whether he is going to substitute his personal views for the law. In other words what judges do is not—they don’t have a roving commission to go out and impose their views for what the legislature passes as the law, and overrule precedents of the court. If you’ll let me go back to the ABA...

MR. RUSSERT: But stay on this, because the Supreme Court has overruled precedent, as we know in Brown v. Board of Education.

SEN. CORNYN: Of course.

MR. RUSSERT: If he became a Supreme Court justice he could very well say, “I don’t see a right in the Constitution to an abortion. I don’t think Roe v. Wade was not decided appropriately and I’m overruling it.”  He has that right, and he very well could do it based on what he has said in 1985.

SEN. CORNYN: Everything we know about Sam Alito is that he is not an ideologue. He’s not a judicial revolutionary. There’ve been 33 years pass since Roe v. Wade decided, notably the Casey decision, which sort of created additional precedent for that decision. But here again, this is a man of integrity as—one thing Chuck left out when he talked about the ABA gold standard in terms of finding him highly qualified, they also look at integrity. And some of the left-leaning critics, the outside groups, have tried to undermine this judge’s reputation for integrity by bringing up bogus claims that he somehow failed to recuse when he should have, despite the fact that legal ethicists across a political spectrum, Democrat and Republican alike, have said there was no requirement that he recuse. Despite that, he went above and beyond what the law and ethics required and ultimately had the case re-argued, had another panel replace him and then they ended up with the same decision. The problem is—and Chuck went through the litany, the laundry list of accusations, which I hope I get a chance to respond to here—that have a good answer and that represent these charges, represent a mischaracterization of this good man’s reputation and record.

MR. RUSSERT: But shouldn’t the American people have the right to hear Judge Alito say, “I believe that there is no right to abortion in the Constitution, but I will respect the 30-some-year precedent of Roe v. Wade and not overrule it,” or “I believe the right does not exist, and I therefore am honor-bound to overrule it”?

SEN. CORNYN: I believe that Judge Alito—I don’t know exactly how he’ll handle this; this is really up to him—but I expect you’ll hear from him what you heard from Chief Justice John Roberts, and that is he respects the decision under the principles of stare decisis. Now, that’s not an impenetrable wall toward reconsideration of a previous decision under the Constitution, or else we’d still be living with Plessy v. Ferguson and not have that overruled in Brown v. Board of Education. But I believe that his record as a -- 15 years as a circuit court judge as someone who demonstrates the quality of self-restraint on the bench will not be inclined to go out and willy-nilly overrule decisions that the court—he disagrees with that were decided decades ago.

SEN. SCHUMER: Tim, two points here. First, you’re exactly right. He should state what he thinks. In a sense, he’s not in the position that John Roberts was. John Roberts never said anything about abortion. You couldn’t—you know, he might have represented Ronald Reagan when he worked for him, but no one knew his view. And so when he said, “I will follow precedent,” well, a lot of people said, “OK. I think he will.”

Judge Alito has stated unequivocally, just as you said, not only his personal view on pro-life, on pro- choice—we approved lots of judges who were pro-life. I’m very strongly pro-choice, but I voted for 190 judges who were pro-life that the president has nominated. But he has stated his constitutional view, his legal view, and that is that the Constitution does not provide for a right to an abortion. The worst thing that could happen with Judge Alito is if he tries to duck the question. Let him say, as you said, one way or the another, he doesn’t agree but he’ll respect precedent or this is one of those precedents that should be re-examined and turned over. But if he says, “I can’t answer that question ‘cause it might show bias,” which is what John Roberts said, he can’t do that because he’s already shown bias not in a pejorative sense. He’s shown his view on this.

MR. RUSSERT: Well, if he has 51 votes, he can do it.

SEN. SCHUMER: Well, you know—but that’s the issue here. And we Democrats...

MR. RUSSERT: If he did that, would you filibuster?

SEN. SCHUMER: Well, it would certainly—if he continued to do that on all of these issues that I mentioned, if he ducked the question, the American people have a right to answer and we know what’s going on here. Seventy percent of the American people say they don’t want a justice nominated who would overturn Roe v. Wade.

MR. RUSSERT: No, but on the question of abortion, if he in your mind ducks that question, is that enough to filibuster?

SEN. SCHUMER: You can’t judge on one specific question. If he continuously given his previous record refuses to answer questions and hid behind this shibboleth, I can’t answer this ‘cause it might come before me, it would increase the chance of a filibuster, absolutely.

MR. RUSSERT: Senator Cornyn, the whole issue of presidential power and how Judge Alito would come down on that issue—we have this debate now about eavesdropping on domestic citizens without a court warrant. You entered the fray with this comment in late December, “None of your civil liberties matter much after you’re dead.”  Is that a kind of...

SEN. SCHUMER: Well said.

MR. RUSSERT: No, does that phrase represent your views on this subject and the kind of views that you think Judge Alito may share with you?

SEN. CORNYN: No, what I meant by that statement, which, of course, was part of a much longer statement, was the most certain deprivation of your civil liberties would be death at the hands of a terrorist. So as we’ve always done in this country, we need to balance our desire for security, which is number one responsibility of the federal government, with our desire to exercise those civil liberties. And during the course of the country’s history, there’s been sort of movement along the continuum between security and civil liberties, but clearly I think Judge Alito believes as we all do that civil liberties are important.

But on the issue of presidential power, here again some of the far-left outside groups have misrepresented what he has said on this subject. He has never said a word on the issue of electronic surveillance, but yet some on the left, including the 22 senators who voted against John Roberts who are looking for a justification to justify a no-vote on Alito have misrepresented what he has said. All he said in this area consistent with what the Carter administration said when President Carter was president that public officials should have some protect against frivolous lawsuits for money damages if they are alleged to have overstepped the bounds of their authority.

MR. RUSSERT: Does he believe that the executive, legislative, judicial branches are equal?

SEN. CORNYN: Well, I don’t know. We’ll ask him, but I assume he would, that they’re co-equal under—that is basic high-school civics course.

MR. RUSSERT: Will you pro-Judge Alito on this whole issue of presidential power and eavesdropping?

SEN. SCHUMER: It’s one of the major questions that we will have to ask him because again in his cases, in his history as a judge, he has more than just about any other judge on the 3^rd Circuit, the circuit in which he serves, sided with the executive branch in terms of their ability to do things. He’s dissented in a whole number of cases in that regard. And, therefore, it’s certainly a question, particularly in light of everything that’s swirling about now with the wiretapping and everything else. And, again, the key here for Judge Alito is to answer the questions directly, not to duck. Then we’ll all have to make a judgment. But the thing that would deprive the American people more than anything else of their right to know how this process works and what the judge is all about is if Judge Alito continues to not answer questions—I shouldn’t say continues. If Judge Alito decides not to answer the questions and try to avoid them.

MR. RUSSERT: Will he be confirmed?

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