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CNN Larry King Live - Transcript

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CNN Larry King Live - Transcript
Tuesday, July 19, 2005

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KING: Welcome back to this special edition of LARRY KING LIVE on a historic night. Joining us in Washington, Senators Jon Kyl, member of the Judiciary Committee, long-time friend of Justice Sandra Day O'Connor, by the way, has argued before the Supreme Court himself, a Republican of Arizona. And in the Russell Rotunda on Capitol Hill is Senator Richard Durbin. Dick is Senate majority whip -- minority whip, rather, and a member of the Judiciary Committee and a Democrat of Illinois.

Senator Kyl, what do you think of the nomination and how will it do in committee?

SEN. JON KYL (R), ARIZONA: I think that Wolf Blitzer actually hit it right on the head. It's a pretty wise choice. A person of great qualifications and stature and experience, who was recently confirmed unanimously by the Senate. I think Senator Schumer voted against him in the committee, but he was confirmed unanimously by the full Senate to serve on the highest of the district courts of the land. And someone who is going to be very difficult to oppose, I think, because of his widespread support in Washington, D.C., by both Democrats and Republican lawyers and judges who know him well.

So I think that Wolf is right. It's a wise choice. Obviously, we have our work to do. We'll ask the questions. At the end of the day, I suspect he'll be confirmed.

KING: Senator Durbin, do you expect him to answer any tough questions, like Schumer's what three decisions did you disagree with, and will that affect your decision?

SEN. RICHARD DURBIN (D-IL), MINORITY WHIP: Well, of course it will. I think the American people are entitled to answers. It isn't just a question as to whether the nominee is honest, legally skilled and has a good temperament. The American people want to know if the values of the nominee are in the mainstream of America.

As a Supreme Court justice likely to serve for 20 years or more, will this nominee protect the rights of the minorities, in terms of women and workers, human rights, civil rights, protect the environment? Very fundamental questions of values.

KING: Senator Kyl, would you want to know his opinion of Roe versus Wade, an opinion already rendered by the Supreme Court, so it wouldn't be hypothetical?

KYL: I think it depends on how you ask the question. If you ask him about that decision, he's going to say it's the precedent of the court. If you ask him a hypothetical question about how he might rule in a future case, I think he's correct to say until I know all the facts of that case, it's very difficult for me to decide.

KING: But will he have to answer his opinion of Roe versus Wade, not a hypothetical case?

KYL: He will be entitled to explain his views, his judicial philosophy in the context of specific cases, like Roe versus Wade, and I suspect that people who are very skeptical about his views will bore in, in every way possible, to get any kind of a hint from him that they can about how he might rule in a future case. Expressing his view about a case, fine. Expressing how he might rule in the future, without knowing the facts of a case, a much different question.

KING: Senator Durbin, do you have a right to know his opinion of prior decisions?

DURBIN: Absolutely. And I asked him, when he came before our committee, he, in a briefing, said he wanted to overturn Roe versus Wade. And I said, "is that your position?" "No, no, no," he said, "I was just an attorney for a client that took that position, in this case the government." So I said, "what is your position on Roe versus Wade?" He said, "it's settled law; Roe versus Wade is settled." And on the Casey decision, another Supreme Court decision, he said "it's more than settled." But, of course, he was deferring to the Supreme Court. Now he wants to serve on the court. And I think we have a right -- let me go further, an obligation -- to determine what his position is when it comes to the privacy of families and individuals in America. That's the underlying principle in Roe versus Wade. KING: Shouldn't the answer on Roe versus Wade that he gave you suffice?

DURBIN: No, because we have to know, when it gets to the heart of the issue, the real core constitutional values, where does he stand? And I think that's a legitimate question. It isn't enough that he's legally skilled. People want to know whether he is in the mainstream of values of America.

KING: Senator Kyl, how tough is this going to get?

KYL: Well, I hope that it is conducted in a very fair and dignified manner, as the president said. There will be outside or special interests, as Candy Crowley said, that will try to drive the debate, opponents of the president, who will probably object to this nominee. But I would hope that the senators themselves, appreciating the need for a fair and dignified proceeding, will not be unduly swayed by that kind of approach, and will certainly ask tough questions, but do so in an appropriate manner. Even when we disagree, we can surely do it agreeably.

KING: Do you agree with that, Senator Durbin?

DURBIN: Absolutely. And I can guarantee you, the Democrats, whether they're for or against John Roberts, Judge Roberts, are going to do their best to make certain that we have the kind of deliberation, the kind of questioning that really gets to the heart of the matter. The American people get this chance very seldom in their lifetime, to hear what a Supreme Court nominee really believes. And as has been said by others, this nominee is likely to serve for decades. I think we have an obligation to ask those questions, and we should have the time to ask them in a deliberate fashion, not to rush to judgment, but to make certain that our judgment is based on a true picture of Judge Roberts' opinion of the bench and his position on it.

KING: We'll hold Senators Kyl and Durbin with us for another segment. We'll be joined by Jay Carney of "Time" magazine and David Gergen, a former White House adviser to many presidents. And later, Dick Thornburgh will join us, former attorney general. Laurence Tribe, the famed scholar from Harvard Law School. We'll also hear from Jeff Greenfield and Bill Schneider. All ahead on LARRY KING LIVE. Don't go away.

KING: Joining us now in addition to Senators Kyl and Durbin, in Washington is Jay Carney, the deputy Washington bureau chief of "Time" magazine. And in Boston, a very familiar face in these surroundings, David Gergen, White House to many presidents, professor at Harvard's JFK School of Government and director of its Center for Public Leadership, and editor at large "US News and World Report." Jay, your reaction?

JAY CARNEY, TIME MAGAZINE WASHINGTON DEPUTY BUREAU CHIEF: Well it's clearly a smart political choice, as people have said. And I think it's smart, because John Roberts appears to be, and in many ways is, a mainstream establishment conservative. But what we do know of his views would make him a reliable conservative, not a risky conservative, like a David Suitor or an Alberto Gonzales or even a Justice Sandra Day O'Connor.

So I think that he will satisfy mainstream conservatives, but not alienate Christian or religious conservatives who want somebody who is not going to disappoint them in the way that Justice Kennedy has, Justice Souter has, and in some ways Justice O'Connor did. One thing that I also think is interesting here is that because he will not be a swing vote, I don't expect, in the way that some of those other justices were, we're really down to -- people talked about how the past 10 years have been the O'Kennedy court, O'Connor and Kennedy justices deciding so many of these decisions. Well if now soon to be Justice Roberts becomes a reliable conservative vote, it's really Justice Kennedy who becomes the deciding vote on every one of these issues. And how he plays that role and rises to that challenge could decide a host of cases that in the past have been decided 6-3 and 5-4.

KING: David, there were so many other justices historically, have changed as time goes on. We can see it recently in Judge Souter, as an example. Why does that happen?

DAVID GERGEN, FMR. ADVISER TO PRESIDENTS NIXON, FORD, REAGAN, CLINTON: It's interesting. They become more independent minded, I think. They're persuaded -- living in those chambers is pretty isolating in those chambers, they actually don't talk to each other as much as you might think they would. And I think that the arguments that the logic of the arguments that are presented to them, some gradually bring them over one way or the other.

But I have a slightly different view than Jay, Larry. And that is, this is a very important nomination, because he is -- the president is now replacing Justice O'Connor, who has been a swing vote on many abortion cases. He is replacing a moderate conservative with a strong conservative. Sandra Day O'Connor has been the fifth justice in many 5-4 decisions that have pushed back the effort to restrict the rights to abortion. If, I think as conservatives expect now, Justice Roberts were to go the other way, that means that many of the decision that went 5-4 to preserve abortion in an expanded way, will start going against abortion so that you begin to restrict the rights. Partial birth abortion is coming up before the court, parental notification.

The conservatives understand that it's going to be very hard in the near term to overturn Roe V Wade. Their strategy is to try to limit Roe V Wade so much that you eviscerate the rights to abortion. And in this case, with Justice Roberts, if there is a Justice Roberts, I think almost everyone on this program believes there will be, it could easily go 5-4 the other way and there'll be a lot of restrictions.

KING: Senator Kyl, do you support Roe-Wade?

KYL: Yes, Larry, as a precedent of the court, I would have to, as a judge, but I disagreed with the decision when it was rendered and I still do. KING: So if it was overturned, you would not be unhappy?

KYL: No, I wouldn't. But I would suggest that what's going to happen if John Roberts would rule as it's predicted, hear that he would rule, is that you will see Roe versus Wade nibbled away at at the edges, but not overruled as a core decision. Parental notification and partial birth abortion are certainly marginal issues with respect to abortion. And it wouldn't surprise me a bit to see congressional acts outlawing those practices declared constitutional by a court in the future. But that doesn't necessarily eliminate the rationale of Roe versus Wade.

KING: Senator Durbin, do you see a frittering away of Roe-Wade?

DURBIN: Yes I think I would with Judge Roberts in that position. Sandra Day O'Connor who came as a mainstream conservative, near the end of her term on the court became one of the most important votes when it came to preserving a woman's right to choose. And if she is being replace with Judge Roberts, it is likely she is being replaced with someone who will vote the other way. I can't say for certain, because as I mentioned earlier Judge Roberts really avoided that question when he went through this hearing before. But if that is the case, I guess one of the best spins is we'll just nibble away at the edges. But you cannot dismiss the possibility that Roe versus Wade could be in peril if Judge Roberts makes it to the Supreme Court.

KING: Jay Carney, do you expect civil proceedings?

CARNEY: Well I do because he's a civil nominee and a civil candidate and not someone who outrages the special interest groups. I just want to point out, I actually agree with what David Gergen and others have said. And that's what I meant, that Roberts is now replacing O'Connor, and that seat no longer becomes a swing seat. And to the extents that Justice Kennedy was a swing voter on occasion in the way that Justice O'Connor was, he now fills that role. And if he doesn't rise to the 5-4 vote in favor of maintaining abortion rights on some of these cases, then I think what we're talking about will happen, the slow erosion of Roe V Wade.

And what we'll see is that the signal of Justice Roberts ascending to the Supreme Court -- Judge Roberts ascending to the Supreme Court, will then have the anti-abortion groups out in the state legislatures, testing their luck, basically, trying to get legislatures to pass laws that can then be brought before the court to see how much more erosion of Roe V Wade they can accomplish.

KING: David Gergen, do you expect him to swing through easily?

GERGEN: I do, Larry. I think that not only is he a conservative, but he's not seen as an ideologue by many in the practice of law. He was at Hogan & Hartson, a gold-plated firm in Washington. And very importantly, Larry, you remember when Judge Bork went through, it was partially what he had said and written before, but it was also partially his manner. And it alienated many senators. They thought he was sour. Judge Roberts, by comparison, when he was at Hogan & Hartson, was regarded as one of the best oral advocates before the Supreme Court of the 1990s. He's affable, he argues well and I would imagine, Larry, he'll make a very good witness for himself.

KING: Thank you all very much. When we come back, two distinguished Americans as part of our jurisprudence system. Dick Thornburgh, a former attorney general, a former governor of Pennsylvania, and Laurence Tribe, the constitutional scholar from Harvard Law School. Dick Thornburgh, Laurence Tribe, next. Don't go away.

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http://transcripts.cnn.com/TRANSCRIPTS/0507/19/lkl.01.html

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