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CNN Larry King Live - Transcript

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CNN Larry King Live - Transcript
Tuesday, September 13, 2005

BREAK IN TRANSCRIPT

COSTAS: And we'll have much more on the aftermath of Hurricane Katrina later in the broadcast. Shifting subjects to the confirmation hearings is this a bit of good news the way things are going, a bit of good news for the administration?

SCHIEFFER: Oh, I think this man is going to be confirmed. I don't think there's any question about it. I think the Democrats are going to make a record here but I think everybody on both sides of the aisle in the Senate knows that this man is going to be confirmed.

My guess is you're going to be seeing Democrats try to wrap this thing up and hold their fire whatever it's going to be for the next nomination, the replacement for Sandra Day O'Connor.

But, this judge, I mean he's the most articulate person I've seen in Washington for a long, long time and when he sits there and speaks extemporaneously like he even did in his opening statement, well many times the Senators have to, you know, weed over these long and ponderous statements to ask a question. He hasn't referred to a note at this point. He's been totally in control and I think he's done a remarkable job frankly.

COSTAS: Senator Charles Schumer, is Bob Schieffer correct that you among the loyal opposition would do best at this point to hold your fire until the next round which is coming up shortly?

SEN. CHARLES SCHUMER (D), NEW YORK: Well, I think it's -- no, I think that the idea of asking questions, of letting people understand how important these appointments are and, bottom line, finding out where these nominees actually stand makes a good deal of sense.

I think the questioning today was respectful. I think we learned some good things. I mean I was pleasantly surprised to find that John Roberts believes in the Fourteenth Amendment, due process substance privacy. He believes in the Griswold case.

I was disappointed that he didn't show a little more remorse over some stands in the early '80s in terms of civil rights so today was a mixed bag but overall the idea and the precedent of asking serious questions of a nominee is the right thing to do for the Constitution, for the American people and, frankly, for the Democrats.

COSTAS: Senator Schumer is it fair to say and obviously it is the job of each member of the Judiciary Committee to ask challenging questions but is it fair to say that this particular candidate has such impeccable credentials, he hasn't stubbed his toe in these confirmation hearings, there's little to indicate that there's any scandal in his background, even his opponents concede he has a brilliant legal mind and so the president has a right to appoint someone of this caliber to the bench and in this case to the position of chief justice and in the role of advise and consent you take a look and you pretty much have to say he's qualified?

SCHUMER: Well, Bob, he certainly has a great resume but a great resume isn't enough. You have to know someone's views. Someone could be brilliant but if they want to roll back the constitutional protections and guarantees that we've had in labor rights and environmental rights and civil rights and go back to the '30s, which for instance Justice Thomas does and the president has said he wants chief justice or justices on the court in the mode, those are his words, of Scalia and Thomas, the first question, the most important question is what are his judicial philosophy? What are his views?

Now today, you know, he came out, as I said, with a number of good things as well as some not such good things but it's our obligation to do that no matter how good his resume is, no matter how articulate he is because no matter how smart, no matter how accomplished, no matter how articulate if he uses those for bad ends, what good is it?

COSTAS: How concerned are you that from your perspective he might use those abilities for "bad ends"?

SCHUMER: Well, the bottom line is that we didn't know much about Judge Roberts before today. He doesn't have a long record. He's a great lawyer but he's always been representing other people, whether President Reagan or Bush in the White House or clients when he was at Hogan & Hartson.

So, today is the first day we got to see what his views are like and, as I said, it was sort of a mixed bag. Are we sure that he's A- OK, no, but are we sure that he's not, no, not at all. I think you need a couple more days of serious questioning and then we'll have a pretty good idea.

COSTAS: Senator Jon Kyl, Republican of Arizona, your review of John Roberts' performance to this point.

SEN. JON KYL (R), ARIZONA: Well, if nothing else, you have to give him credit for sitting there for over ten hours and not just answering all the questions but listening to a lot of talk from Senators as well.

But I do agree with Senator Schumer that the process is helpful. It's a good civics lesson but it's also important for us, who do have to give the advise and consent in the Senate, but for the whole country to get a little bit more information about the man himself.

We have the most extensive record, the most voluminous record of any prior nominee before us, the questionnaire, 80,000 pages of documents in his prior work, opinions and on and on and on.

But it is helpful to see the man himself and what I was struck by today is not just his great intellect and his ability without notes to field any question the Senators asked but his demeanor, which had to give you confidence that his judicial temperament is very, very good.

COSTAS: David Gergen, handicap this for us briefly before we go to a break. It seems fairly clear that John Roberts will be confirmed. Will he be confirmed overwhelmingly?

GERGEN: I would think he would get well over two-thirds of the Senate but Chuck Schumer would be a lot better judge of that than I would be. It's very clear that the Democrats, while they would be more comfortable with a different, more liberal candidate, more progressive nominee that this man has impressed everyone with his, not only his credentials but, as Senator Kyl said, his demeanor.

This is a far different atmosphere than say that that surrounded the Bork hearings where there was so much antagonism between the nominee and the Judiciary Committee or very different from the Clarence Thomas hearings.

I think that Judge Roberts as he discussed the Roe v. Wade and the question in the Casey opinion, you know, both of which are very important to the abortion rights, it was a judicious conversation in which I think lawyers around the country would say I may not necessarily agree with him but I like the way he reasons.

It's a nuanced reason. It's balanced. It's thoughtful. It's well rooted in the law and he showed great respect for not only the right of privacy but for precedent and said we should judge this in terms of subtle expectations and he did leave the door open.

He could still vote to overturn Roe v. Wade but certainly the tilt was toward respect for precedent and leaving subtle expectations alone unless they prove to be unworkable or unless the precedent itself is so eroded and that's not true in Roe v. Wade.

COSTAS: We'll continue the discussion of the confirmation hearings with David Gergen, Bob Schieffer and Senators Jon Kyl and Charles Schumer when we come back after this break.

Still ahead on this program, Anderson Cooper, among others, will join us from New Orleans.

Tomorrow night Larry is back with the mayor and police chief of the city of New Orleans.

And, we continue after this.

(BEGIN VIDEO CLIP)

SEN. ARLEN SPECTER (R), PENNSYLVANIA: Do you believe today that the right of privacy does exist in the Constitution?

JOHN ROBERTS, CHIEF JUSTICE NOMINEE: Senator, I do. The right to privacy is protected under the Constitution in various ways.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

COSTAS: Continuing with Bob Schieffer of CBS News; David Gergen, White House adviser to Presidents Nixon, Ford, Reagan and Clinton; and, Senators Jon Kyl of Arizona and Charles Schumer of New York in the aftermath of today's John Roberts' hearings on Capitol Hill.

Senator Kyl, as we went to the last break, David Gergen was making the point that particular philosophical differences aside that Judge Roberts has made a very favorable impression as a person. There wasn't the contentiousness that marked the Bork hearings, certainly that marked the Clarence Thomas hearings. He seems to be a genial man in addition to everything else. Is this less about particular issues, as important as those issues might be, and more about a general impression?

KYL: Well, it's really about both but get to one of the key points that he's been making, which is that his role as a judge means that his opinions are really not important. His role as a judge, as he said, is to call the balls and strikes as he sees them.

And so, in a sense, his views on things are not really relevant. His view toward judging is important, how he approaches a case and here he's been answering question after question after question talking about the role of precedent and a whole variety of other things that help us understand how he will approach the cases to decide them.

But, of course, it would be wrong for us to give us a hint as to a specific case and exactly how he might come out on it. But I think we've learned a lot about how he will approach these cases.

COSTAS: Senator Kyl, I'm certainly no legal expert but if the whole idea of stare decisis, Latin for let precedent stand, if that's really what we're talking about here, should conservatives be cautious in their optimism since Judge Roberts might be inclined to let established law stand rather than work toward an outcome that he, based on his personal beliefs, would like to see?

KYL: It seems clear to me that, somewhat like Chief Justice Rehnquist, he is a conservative in a very traditional sense that he does give precedent a very high value. And he said that in the hearing that excepting extraordinary circumstances you don't overrule precedent, not that it doesn't happen but that it would be extraordinary, and, that is a conservative approach to the law. There are other conservatives who seek to make law and are more activists and I don't think you'll see Judge Roberts be that kind of a judge.

COSTAS: Bob Schieffer, very often nominees to the Supreme Court turn out to be less reliably liberal or conservative than was originally thought. Do you think it's possible that Judge Roberts might surprise us?

SCHIEFFER: You know if I had one thought that came to me today as I watched these hearings today was it would be that that this may be a man that you will not be able to predict how he's going to rule in some of these cases.

I mean I thought it was fascinating, this answer he gave on abortion, you know, when he said we have -- you know it's subtle precedent but he never really said what that meant but it seemed a sort of -- well maybe it satisfied some and didn't satisfy others but I thought it was -- I thought it was very interesting the way he put it.

You know, I've watched a lot of these confirmation hearings, the Thomas hearings for example. We didn't find out very much about Clarence Thomas. We probably didn't find very much about Judge Roberts today that people who have followed all this didn't already know but he gave his answers in an interesting way. We got a fuller picture of what kind of person he is it seems to me and in that way I thought he was very successful today.

COSTAS: And even though the Supreme Court does its deliberating behind closed doors, out of the reach of television cameras, at least in this part of the process we have to accept that we're in a modern world and the impression one makes on television can't be discounted.

SCHIEFFER: I think that's exactly right, just like I think that this hurricane coming as it has is going to make an impression on who the president nominates next. I think all bets are off now on who the president nominates next because there's going to be a question here. Has the president been hurt so badly politically by the public reaction to this hurricane?

Let's say he decided he wanted to pick his friend Alberto Gonzales to be the next nominee. He might have been in a lot stronger position to do that because if he does he's going to have to take on the right wing of his own party, who think that Gonzales is not conservative enough. He may not be as likely to do that now as perhaps he would have been before this hurricane.

COSTAS: Senator Schumer, for the lay person what's the practical role of the chief justice? How does he shape consensus on the court? How does he influence the other justices?

SCHUMER: Well, he does a lot of things. First there are certain special judicial panels that deal with assigning cases or FISA. This is about terrorism. He appoints all of them.

Inside the court he is the leader. He determines who's going to write what opinion or another and he often tries, I mean the famous situation where Earl Warren worked long and hard until it was 9-0 on Brown v. Board and got a few of the justices who were holding out.

So, it doesn't really change the balance on the court but it could in subtle ways change the direction and I agree with Bob and Jon, we're not 100 percent sure where John Roberts will come out.

The one other point I'd like to make about this in terms of the person I thought he was a very, you know, a very smart person, respectful. The one thing I saw today I thought there was a little bit of, well you think of the word. I asked him if he regretted in one of his memos using the word "illegal amigos" which, you know, would hurt people and he wouldn't take that back.

I asked him if on civil rights issues since he's about double in age what he was when he wrote those initial memos that we have, does he have any regrets or policy changes and he wouldn't do that.

So that was the one place in his person that gave me concern but overall I would say as a person he came off very well and, as you said Bob, sometimes that's the impression that matters to the general public. To many of us that's less important than his views and that's why we're going to continue asking questions for a few more days.

COSTAS: Senator Kyl, as a supporter of Judge Roberts, would you concede that some people have concerns about what appeared to be a cavalier attitude, regardless of what his recent positions might have been, if he talks about his amigos in one decision? He talked at one point about perceived problems of gender or a purported gender gap. You could recognize why that would raise the hackles of a lot of people.

KYL: Superficially, yes, but I thought his explanations were quite satisfactory in each of those areas. He went back 25 years and tried to explain the context in which those words were used when he was not expressing his own views necessarily but those of the people for whom he worked and I thought his answers in that regard were quite satisfactory.

Clearly, some people didn't like the positions that were being taken at the time. They argued with the Reagan administration but, as I said, if you want to have those debates I'm happy to have those policy debates but that's not something that appropriate for Judge Roberts to be involved in at this point.

COSTAS: David Gergen, last thing for this segment very quickly, is President Bush in a position where he might be able to checkmate his opponents here? It appears that Judge Roberts will sail through and then Sandra Day O'Connor will have to be replaced. If he should nominate a young female judge who has good credentials, might it not be difficult for political reasons to oppose her and now he's kind of solidified the court for a good long time?

GERGEN: I think if she's one of the female candidates who is controversial, such as Priscilla Owen, the appellate judge in Texas, who was controversial at the time she went through the Senate, I think he'll have a fight on his hands. I don't think because she's a female people are going to let that stand in the way.

I really don't believe he will checkmate people. I think it's going to have a lot more to do with the judicial philosophy of the next nominee than it will the gender. And, in this case, I think what he has done -- the big difference briefly is that Scalia and Thomas are seen as people who have something of a (INAUDIBLE). They're crusaders in effect. People are very unhappy with the direction of the law.

And here Judge Roberts is showing that he's more a person who respects the traditions of the law. If he were to become another Scalia, I think a lot of people would feel after these hearings that there was sort of a bait and switch. I don't think that's the direction he's going in.

He's certainly giving signals that he is -- he's much more, you know, respect tradition, respect the mainstream. Yes, I may side with Scalia and Thomas on some cases but don't think that I'm going to be the kind of crusader that they are. I think those are the signals all of us are picking up.

COSTAS: David Gergen, Bob Schieffer, Senators Kyl and Schumer, thank you all very much.

BREAK IN TRANSCRIPT

http://transcripts.cnn.com/TRANSCRIPTS/0509/13/lkl.01.html

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