Senator Schumer and Senator Hatch Debate Judicial Nominees

Joining us for a fair and balanced debate, Senator Orrin Hatch and, from our studios in New York, Senator Charles Schumer.

Gentlemen, welcome. And I will do my best to avoid the questions that fell into Senator Hatch's earlier category.

Senator Schumer, you have...

SCHUMER: (UNINTELLIGIBLE) all questions are that way.

(LAUGHTER)

SNOW: Senator Schumer, you have said in the past that you want moderate judges nominated by the president.

What does that mean? How do you define a moderate?

SCHUMER: Well, a moderate judge is very simple. They could be conservative, but what they do is they interpret the law.

I don't like judges, Tony, too far left or too far right, because idealogues tend to feel so passionately about what they believe that they make law from the bench. And any reading of the Constitution, the whole structure of the judiciary, which the founding fathers showed great genius in creating, requires people who just interpret the law, not try to make their own law.

So that, for instance, I have supported 119 of the 128 judges who have come to the floor that President Bush has nominated. The whole Senate has done even better, 126 out of 128. There are some judges who either appear to be way over, way past the mainstream that they will make law, they will be activist judges. And then there's one, Miguel Estrada, who has refused to answer any questions about his views.

SNOW: Well, Senator, that's not true, and you know it. There have been a number that have been submitted to him; he's answered them all.

What question would you like him to answer that you have asked specifically of him?

SCHUMER: I've asked him, for instance, his views on the First Amendment, his views on the commerce clause, his views on the right to privacy. He, more than any judge I have ever seen in my 20-odd years on the judiciary committees in the House and Senate, refused.

Now, what he said is, he couldn't answer any questions on these broad bases because he would violate canon five of the ethics, which says you can't talk about a specific case. If that is true, then 99 percent of the judges we have nominated and put on the bench, including those on the Supreme Court, would have violated that canon. He stone-walled.

And let me just say one thing about that, Tony. The Constitution, to me, is a sacred document. I'm a patriot. I love this country. And my family came over here poor as church mice generations ago, and my father couldn't graduate from college. Here I am, a U.S. senator. But that Constitution is sacred.

And when the founding father said advise and consent, they did not intend to rubber stamp. They intended serious debate on issues and not a nominee just getting good ratings from the ABA, which means he's smart -- no one disputes, for instance, that Miguel Estrada is extremely smart -- but rather a questioning of their views.

SNOW: OK, Senator...

SCHUMER: And that is exactly what the administration doesn't want. It's to say -- just one other point, here -- and I'd say this, and I know most of your viewers are to the right side -- to say that we are being obstructionists when we have approved 126 out of 128 judges means only one thing, that you are obstructionist unless you give the president his way on judges 100 percent of the time.

SNOW: OK, and...

SCHUMER: And this president has nominated more ideologically or far- over judges than any president, Democratic or Republican, in history.

SNOW: Well, Senator, I want to get Senator Hatch in here, but briefly, I want to -- just one other point. You mentioned the canon of judicial ethics. It doesn't simply say cases, it also says controversies or issues.

Thurgood Marshall, when asked to comment on the Fifth Amendment said, and I quote, "I do not think you want me to be in the position of giving you a statement on the Fifth Amendment and then, if I am confirmed, to sit on the court. When a Fifth Amendment case comes up, I will have to disqualify myself." Now, under the standard you've just outlined, you would not have voted for Thurgood Marshall.

SCHUMER: No, because Thurgood Marshall had a long record. Miguel Estrada has no record. We don't know how he thinks. He could be a mainstream conservative. If that proves to be the case, he'll be approved. He could, however, be what some people say he is: far to the right even of Justice Scalia.

SNOW: All right. Let's...

(CROSSTALK)

SCHUMER: If someone has -- wait, since you're posing these questions, why don't I get a chance to answer them?

(LAUGHTER)

SCHUMER: Let's be fair and balanced.

SNOW: We're having a filibuster. OK, let's...

SCHUMER: So the bottom line is this. You have to judge all of the issues. But there's no violation of the canons of ethics to answer that question. Countless nominees have done it.

SNOW: All right.

Senator Hatch.

HATCH: Well, of course Miguel Estrada has just as -- a very, very important history, served as a law clerk to a Supreme Court justice, even served as a law clerk to one of the Second Circuit Court of Appeals judges, was on the Solicitor General's office, of course was a prosecutor...

SNOW: Well, we know the resume...

HATCH: I mean, he has just as much experience.

And you know what really galls me is how they try to place these people on the left or the far right. I agree with Senator Schumer. I don't think we should have people who are extremists either way.

SCHUMER: But let me...

HATCH: But here's Estrada. Estrada has a unanimous well- qualified rating from the American Bar Association, which was, throughout the Clinton years, their gold standard, the Democrats' gold standard.

SNOW: OK, but you're talking past each other. Senator Schumer has said...

HATCH: Well, in a way, that's true.

SNOW: Well, Senator Schumer has said that Miguel Estrada is not answering questions, that he is, quote, "stonewalling."

HATCH: Well, that's pure bunk. First of all, he had one of the longest hearings for a circuit court of appeals judge in history.

Secondly, he's answered questions time and time again. Only two senators sent him written questions. So we made him available to answer written questions afterwards, to meet with them in their offices. He's answered questions.

The problem is, they want him to get into actual cases that may possibly come up before the court when he's on it.

SNOW: Senator, there has been talk that Republicans, perhaps out of frustration over filibusters in these case, may try a so-called nuclear option: Go to the parliamentarian of the Senate and say, what's going on here is not constitutional. The Constitution, as Senator Schumer points out, does permit the Senate to advise and consent, but that a majority vote also should be sufficient to appoint a federal judge.

HATCH: That's right.

SNOW: Do you think your colleagues are prepared to do that?

HATCH: Well, I think that they are, but I hope we don't have to do that. I'm hoping that the compromise approach that Senator Frist and I have offered will be accepted by the Democrats. Many of them voted for it when they brought it up, and I have to say, it would provide a means whereby we would have a full and fair debate.

You know, we should have an ample debate, but it shouldn't be an endless one, and I think that's what is happening here. For the first time in history, you have two circuit court of appeals judges, (UNINTELLIGIBLE) court judges, filibustered by a partisan filibuster.

SNOW: Senator Schumer, would you support changes in the use of filibuster when it comes to federal judges? And if so, what kind of changes?

SCHUMER: Absolutely not. Again, you go back to the point here. The views, it seems, of Orrin Hatch, my good friend -- and he is, we are good friends...

HATCH: That's true.

SCHUMER: ... and the views of President Bush are, the Senate, the Democrats in the Senate are obstructionist if they don't approve every judge.

We, again -- I want to repeat this, so your viewers know it, because when Rush Limbaugh and all the very conservative commentators talk, they don't make this point: We have approved 126 of 128.

Now, what Orrin is saying and the president is saying is, unless they get all 128, they will change time-honored rules.

SNOW: Senator...

SCHUMER: The Constitution, Tony, does not say majority choose of judges. In fact, the Constitution -- one of the beauties of this Constitution is to say that sometimes majority rule shouldn't go, that checks and balances in our government require it. Alexander Hamilton, my fellow New Yorker, said sometimes majority rule ends up being mob- ocracy (ph)...

SNOW: OK.

SCHUMER: ... but we all have certain rights.

HATCH: But Article II of the Constitution, basically just two lines above the advise-and-consent clause, does talk about a supermajority vote of two-thirds to ratify a treaty. Now, it's pretty clear that the founding fathers meant an up-and-down vote on advise- and-consent nominees, and judicial nominees are advise-and-consent nominees.

SNOW: Senator Schumer, you have...

SCHUMER: There are all sorts of places in the Constitution where majority rule doesn't govern. I'll give you one example...

(CROSSTALK)

SCHUMER: Let me just finish.

SNOW: Gentlemen, I'm going to blow the whistle here.

I want to get a direct question to you, Senator Schumer. What the White House is saying is not, you've got to vote for every -- you've got to approve everybody, but that you ought to have a vote on everybody.

Your colleague, Patrick Leahy, a couple of years ago was pretty outspoken on this point. He said that he would -- let's see if we can get the quote here. He said, "I would object and fight any filibuster on a judge, whether it is someone I opposed or supported. If we don't like somebody the president nominates, then vote him or her down."

And you've made similar statements in the past, before George W. Bush became president.

SCHUMER: OK, the bottom line is, I do not believe that is correct, particularly when a president nominates judges who are so far to the right. No president has done that, not Ronald Reagan, not George Bush the first.

Bill Clinton nominated a whole lot of Democrats, and the most extreme ones were held up by the Republicans for many years, they never even brought them to vote. I don't have a problem with that.

There is a check-and-balance system here, and that's what ought to work. And right now, we are saying that the sacredness of the Constitution should be overruled because the other side can't get its way on not 126 of 128, but 128 of 128.

This is the advise-and-consent process, including the ability of the minority in the Senate to hold people up. And that's what's happening.

SNOW: All right, Senator Hatch, final word.

HATCH: I get a kick out of that argument, because, you know, here are two people, both have unanimous well-qualified ratings, tremendous experience, tremendously intelligent, good people, they're not extreme in any sense of the word.

Really, what it comes down to is that the Democrats are afraid they might be pro-life and that they might possibly do something against Roe v. Wade, even though both of them, Miguel Estrada and Priscilla Owen, have said that they will uphold the law, including Roe v. Wade.

And that's what it comes down to. And the inside-the-Beltway groups just seem to control the Democrats...

SNOW: All right.

SCHUMER: Let me just say one thing, Tony.

HATCH: I want you to know that you're one of my favorite people, there's no question. I think a lot of you, but by gosh, you're surely wrong on this.

SNOW: Quick comment, Senator Schumer.

SCHUMER: OK, let me just say this, Tony. Of 126 of the 126 judges supported by the Senate, of the 119 I have voted for, the overwhelming majority were pro-life. There is no litmus test here.

The idea is, will...

(CROSSTALK)

SNOW: All right, gentlemen.

Look, Senator Schumer, you have made your comment, and I appreciate it.

SCHUMER: Thank you.

SNOW: Senator Hatch, I appreciate that, as well.