MSNBC Meet the Press - Transcript

MSNBC Meet the Press - Transcript
Sunday, July 10, 2005

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MR. RUSSERT: Coming next, the Supreme Court: What questions are appropriate for the successor to Sandra Day O'Connor? Senate Judiciary members Orrin Hatch and Chuck Schumer, one Democrat, one Republican, are next. They'll square off on the Supreme Court.

(Announcements)

MR. RUSSERT: Senators, welcome both.

SEN. CHARLES SCHUMER, (D-NY): Morning.

MR. RUSSERT: Senator Hatch, just listening to this discussion on terrorism, I know you're from Utah, but terrorism and the risk associated--New York, Washington; should we rethink the way we apply money from homeland security so that areas that are higher-risk areas, like New York and Washington, would receive a disproportionate share as opposed to Utah?

SEN. ORRIN HATCH, (R-UT): Well, first of all, let me just say that our heart goes out to the people in London and, of course, in Madrid and other places where we have these terrible terrorist things.

But to answer your question, the answer is yes and no; yes, because we should do the very best we can to allocate those monies in the very best way we can, and I think that Secretary Chertoff is a terrific leader and is doing that. But you can't discount, say--let's take Utah. Utah is in the center West of the country, but it's the crossroads of the West. It's where an awful lot of illegals come through. It's where an awful lot of drug trafficking, which pays for terrorism, comes through. There are a lot of black-box companies and, of course, great installations there that are absolutely critical to this country, that are unique to the country. So, you know, you can't just say, "Well, just because these are huge cities on the coast"--that they should get all the money, because there are some very significant intelligence and practical anti-terrorism approaches that are taken in some of these very small states.

MR. RUSSERT: Do you think, in light of what happened in Madrid and London, we will increase funding dramatically for subways, buses, railroad--railway cars?

SEN. HATCH: We have to do what has to be done. We'll follow Secretary Chertoff's suggestions, as we should, but I don't know of any public servant that I admire more than Mike Chertoff. I've had a tremendous amount of experience with him, and I have to tell you, he's doing a great job, and we'll follow whatever he says, I believe.

MR. RUSSERT: Senator Schumer?

SEN. SCHUMER: Yeah. I agree with Orrin's analysis of Secretary Chertoff. I think he's done a good job. I think the money has not been given out fairly for, say, Wyoming--I won't say Utah. But for Wyoming to get so much more per capita than New York when the threat is greater in New York-- There's a threat in Utah, there's a threat in Wyoming, there's a threat in every state, but so much greater in New York--is unfair. Although Secretary Chertoff has promised that he is going to change that formula, and most of the formula is discretionary with the federal government--with the executive branch, and I'm expecting real changes.

MR. RUSSERT: Do you think more money for subways, buses, railway cars?

SEN. SCHUMER: Without question. This is a place that we've totally neglected what we should be doing. As was said, the rail system is an open system. For every air passenger, we spend $7 on homeland security. We spend a penny for rail passengers. And there are ways to make it a lot safer. I mean, one of the things we should have a crash program on is a detector that can detect explosives. As you asked before, you can't use a metal detector, but what about a smoke detectorlike device that could be on the wall of every railroad station, on the car of every subway, that goes "beep, beep" when someone has explosives or leaves explosives there? Why haven't we had a crash program to develop that? I'm pushing for that in the homeland security bill that's coming up next week.

MR. RUSSERT: Well, let me turn to the Supreme Court. You're both important members of the Senate Judiciary Committee. Harry Reid, the leader of the Democrats in the Senate, talked to the Reno Gazette Journal on Thursday and said this: "I had lunch at the Supreme Court 10 days ago and at my table were (Associate Justices) Sandra Day O'Connor, (Antonin) Scalia and (Stephen) Breyer. ...They said they would like to see the president pick someone who has not been a judge. And what I have said to anyone who will listen is what I think he should do is pick one of the senators." Senator Hatch?

SEN. HATCH: Well, you know, I don't think that--that's never been an issue with me.

MR. RUSSERT: But you'd accept.

SEN. HATCH: I think if anybody was asked, they would accept. Now, look, I think sometimes we look too much to the judiciary for these nominees. And once they've served in the judiciary, they're kind of in a cloister. They really are not in, you know, the public domain, so to speak. And I think it might be good to have somebody from outside who basically understands what the real world's about because they've lived in it over the last 10 or 15 or 30 or 40 or 50, 60 years. The fact of the matter is, is that we've done very well picking jurists, but we also could do very well picking people who are not just political, but people who could bring a human dimension to things.

MR. RUSSERT: Senator Schumer?

SEN. SCHUMER: Well, I enjoy working with Orrin on many issues, but I wouldn't want to ruin his chances by endorsing the candidacy here on your show, Tim. But the...

MR. RUSSERT: But you'd support him.

SEN. SCHUMER: But--well, I'm not going to--I have religiously stayed away from saying I'd support or oppose any person before they're nominated. I would say this, though: The point that people with practical experience should be on the bench, even the Supreme Court, is a very good one.

MR. RUSSERT: Justice William Rehnquist, the chief justice--do you expect him to resign?

SEN. HATCH: I do--not resign, but retire. He'll have a lot to do when he does. He'll be in great demand by people all over the country. He's a terrific speaker, terrific scholar, a wonderful person. Yeah, I do, but I don't know when that's going to happen. But I just think...

MR. RUSSERT: This term?

SEN. HATCH: I don't know. I expect by the end of the year that he will retire, because I think he's really wanted to. But, you know, he has this illness and he may very--want to just keep working and do everything he can to serve this country. He's done a terrific job. He's been one of the all-time great justices.

MR. RUSSERT: But your sense is this year he will retire.

SEN. HATCH: That's my sense, but I've been wrong before.

MR. RUSSERT: Senator Schumer?

SEN. SCHUMER: Well, I don't know. The amazing thing about the Supreme Court is it's solely up to him. It's a lifetime appointment...

SEN. HATCH: That's right.

SEN. SCHUMER: ...tremendous power. No one--not the president, not anyone else--can call him and say, "You have to do it." So it's in his own head. And as he said when he was asked, "That's for me to know and you to find out."

MR. RUSSERT: If, in fact, there were two vacancies at the same time, Senator Hatch, would there just be one hearing in the Judiciary Committee, or would there be two separate hearings?

SEN. HATCH: There'd be two separate hearings, I believe. It'd be up to the chairman and the administration as to how that works, but I suspect there'd be two separate hearings. We've had that before and, frankly, it could be done.

MR. RUSSERT: Senator Schumer, you were reportedly overheard on an Amtrak train speaking on your cell phone, talking about "going to war" over this nomination. Tony Perkins, the head of the Family Research Council, issued a statement saying that the whole nation--that "Family Research Council is appalled at the presumption that the nominations and makeup of the United States Supreme Court will be a `war' regardless of whom President Bush decides [to nominate]. ... `I would not hesitate to suggest that Senator Schumer should recuse himself from the confirmation process since he has obviously already made up his mind. His actions are against the process of judicial honor and shameful.'"

Did you say this was going to be a war or should be a war?

SEN. SCHUMER: Well, the bottom line is no. I've said just the opposite. I've been saying over and over again I hope for a consensus nominee. We know it'll be a conservative nominee, but the kind of conservative who everybody can support. And...

MR. RUSSERT: So...

SEN. SCHUMER: ...I've repeated that over and over again. In fact...

MR. RUSSERT: So you did not say, "We are contemplating how we are going to war over this"?

SEN. SCHUMER: What I said was that we will not roll over if they choose an extreme nominee. But the way it was reported, any nominee, we'll go to war--in fact, the irony is just this: I haven't criticized, nor has any Democrat I know, a single other name out there. It's Tony Perkins and his sort of--his far- right groups who have said when the president--when the name Gonzales was mentioned, they said, "No, he's unacceptable." We are approaching this, Tim, in a way that we'd like to have a consensus nominee. Now, I'm sort of flattered that Tony Perkins and others would say I should recuse myself, but it's sort of silly.

MR. RUSSERT: But you won't.

SEN. SCHUMER: I will not.

MR. RUSSERT: You did say that the president and the Senate should, in fact, have almost a joint authority in selecting a Supreme Court justice. Shouldn't the president, who's elected by the American people, have the right to select a Supreme Court nominee?

SEN. SCHUMER: Well, let me say the president has the right; that's the Constitution. What I called for is an active and real consultation. And, in fact, the president's taken a good first step. He's meeting with Senator Reid and Senator Leahy, I believe it is, Tuesday. The White House has called a number of us and begun consultation. And that's a good idea. Now, the consultation should be real. It shouldn't just be, "Hi. Do you have any names that we should consider?" It should be a back-and-forth.

I'm going to give Orrin a little plug here. This is his great book. I urge everybody to buy it and help Orrin out. But in the book he talks about President Clinton did. President Clinton would call Senator Hatch, who was of the opposite party, opposite philosophy, and say, "What do you think of this name? What do you think of that name?" And in the book it shows that when Orrin said someone would have really rough sledding, the president would back off. That's the kind of consultation we can need.

So make no mistake about it: The president has the power to nominate. The Senate has the power to consent. And to avoid the kind of divisive fight that--I think all of America wants real consultation before the president nominates--and it's his right to nominate who he wants--but help create that kind of consensus nominee.

MR. RUSSERT: Back in 1999, Senator Hatch, then-Governor Bush said to me that the two justices he respected most on the Supreme Court were Antonin Scalia and Clarence Thomas. Do you believe that he should nominate someone who has the same judicial philosophy as Scalia and Thomas?

SEN. HATCH: Well, first of all, they both are terrific people. They're both doing a great job on the court. Now, they're more conservative than Chuck Schumer and Democrats would like them. With regard to their consultation, you know, I think when the Democrats talk in terms of consensus, they mean they want to pick the nominee or co-pick it. When they talk about consultation, they want it to be done their way. And frankly, this administration has done more consulting than any administration in my whole 29 years in the United States Senate. And it's not only going to be pre-consultation, I think it'll be post-consultation once the person is nominated. And I believe that they deserve a lot of credit for it. They've actually consulted as we sit here with dozens of senators in the United States Senate. That's never been done before. Usually a president will talk with the leadership and then talk with the chairman and ranking member of the Judiciary Committee, but they've gone way beyond that.

Now, the names that I've seen, that have been mentioned, they are all qualified. They are good people. Any one of them would be good. Some would give more angst to the Democrats than others, but they're certainly qualified. And I think what we've got to say here is that the reason that--and Chuck mentioned in my book "Square Peg," in the discussion about the meeting with President Clinton, the reason that he was willing to consult with me in the way that he was is because I was supportive of him. In other words, I wasn't making demands. I wasn't demanding that I help pick the judges. I didn't make threats of filibustering. I didn't, you know, tell him that he had to go the way I wanted to go or that he had to pay attention to our party. I actually told him I would support his people. I think that's one reason why we had such a good relationship.

And during the time President Clinton was president, we put through the second highest total of federal judges in history of the country, 377. So there's a real difference up there right now. Some of our Democrat colleagues are demanding that he pick somebody that they want, or at least--or at least through consultation let them determine the process, and frankly, that's just not the way it works.

MR. RUSSERT: Senator Schumer, if President...

SEN. HATCH: By the way, can I make one other point on that? The Constitution doesn't require consultation. There's nothing in there that says the president has to consult. Washington, Adams, Jefferson, Monroe, Jay all said that the president solely picks these people. But this president is consulting as a courtesy, but that courtesy should go both ways. Not just from him to us as senators, but from us as senators to him.

MR. RUSSERT: Advise and consent?

SEN. HATCH: Darned right.

MR. RUSSERT: Advise and consent?

SEN. SCHUMER: Well, advise and consent is always not a vote, up or down, in the Senate.

SEN. HATCH: No.

MR. RUSSERT: If President Bush put forward someone with a judicial philosophy like Scalia or Thomas, would the Democrats oppose?

SEN. SCHUMER: Well, I think we'd have to wait for the hearing to see, but the bottom line is that what we're looking for--and Orrin is wrong. We don't want it--we know we're not going to choose the nominee. We know the nominee is

going to be a conservative. When Sandra Day O'Connor stepped down, Democrats--we said that somebody like Sandra Day O'Connor, a true conservative, but somebody who saw the other side, who was thoughtful, was pragmatic would be an outstanding-type nominee, and that's not the nominee that a Democratic president would choose. That's not the nominee the Democratic senators would choose. We're trying to reach out in every way.

And the reason that consultation matters is because--You're right, Orrin--a president can choose who he wants, but Constitution says advise, not just consent, and if we want to avoid the kind of fights that we've seen, the kind of real consultation outlined in your book, that President Clinton had with you, we hope that President Bush will have with Senator Reid, Senator Leahy and some of the Democrats.

MR. RUSSERT: President Bush has said there would not be a litmus test, that he would not ask the nominees, he, himself, about their position on abortion or on gay marriage and so forth. Senator Schumer, The New York Times on Monday quotes you as saying this: "All questions are legitimate. ... What is your view on Roe v. Wade? What is your view on gay marriage? They are going to try to get away with the idea that we're not going to know their views. But that's not going to work this time." Is that appropriate, trying to pin down a justice, what their views are, how they may decide a future case?

SEN. SCHUMER: Tim, let's look at this. The Supreme Court justices have enormous power. With a flick of the pen, they can change millions of people's lives. And we have to know a lot more than just whether they went to Pittsburgh Law School or Harvard Law School or their resume. Yes, we should be knowing their judicial philosophy. We should be knowing their legal form of reasoning. There are lots of questions that are legitimate. And, in fact, I'm releasing today a letter from 12 law professors who say that this is extremely appropriate, that asking people questions on their judicial philosophy, on so many issues--"What's your view on the First Amendment and how far it should be expanded? How do you regard the conflict between the First Amendment right to free religion and the establishment clause? How far would you take the distribution of power between the federal government and the states?" This new--the court we've had now is pushing back and saying the states should have more power. "What's your view on the right to privacy which was established in Griswold 40 years ago?"

In fact, Tim, I would argue this: Given the power of the Supreme Court, given the effect it has on the rights of ordinary people, we have an obligation to understand their views.

Now, here's the distinction. Can we ask them about a specific case? Can we ask them: How would you rule on Enron, which has a specific fact situation? Absolutely not. That is against the canons, the judicial ethics, but can you ask them, "What's your view on corporate responsibility and how much role the federal government should have vs. the state government in determining that corporate responsibility?" Those are the kinds of questions we should ask and will ask. Simply to look at a resume is not enough.

MR. RUSSERT: In fact, in 1993, Senator Hatch, Ruth Bader Ginsburg--you asked her about her views of the death penalty. You asked her whether she supported taxpayer funding of abortions. Those are pretty specific questions.

SEN. HATCH: You can ask any question you want on the Senate Judiciary Committee. I have no problem with that at all, no matter how stupid the question may be. But the fact of the matter is, is that I--look, I'll quote Senator Kennedy. He said this. He said, "It is offensive to suggest that a potential justice of the Supreme Court must pass some presumed test of judicial philosophy. It is even more offensive to suggest that a potential justice must pass the litmus test of a single issue group."

SEN. SCHUMER: Yeah.

SEN. HATCH: Now, look, I believe that any question can be asked, but those nominees do not have to answer them, and most of them will not. In fact, the canons of judicial ethics indicate that you really cannot answer questions and should not answer questions about something that may be involved in some future case. And let's take the issue of abortion. There are all kinds of facets to abortion that will ultimately still come to the Supreme Court. Or take a number of the issues that Chuck mentioned; all kinds of facets that may come before the court. You know, I really believe that a justice ought to just say, "Senator, I'd like to answer that for you, except I don't know the answer. I haven't seen the briefs. I haven't heard the facts. And, frankly, I shouldn't be making up my mind in advance, and if I did, you wouldn't want me as a judge."

MR. RUSSERT: What...

SEN. HATCH: So to press them too hard--and you'll notice I asked the question but I did not press her on those questions.

MR. RUSSERT: When do you expect the nomination to be made?

SEN. HATCH: Well, I don't know. You know, there's a real problem here because of timing. We were going to have this August recess, and I suspect the president will nominate somebody before the end of July and hopefully earlier, because it generally takes three to four weeks to have the basic process completed before hearings. Then you've got to set up hearings. Then you've got to have, of course, the Judiciary Committee act and then you've got to bring it to the floor. So we'd like to have this process work before the first Monday in October.

MR. RUSSERT: You will not rule out using a filibuster need be?

SEN. SCHUMER: No, I mean, we'd like to avoid it. We hope there'll be a nominee that even though their views don't agree with ours are at least within the mainstream, some--a judge who will meet the one test that really matters, they will interpret law, not make it. People on the far left, far right want to make law. Neither of them should be on the bench. I've always said, Tim, there should be--a good Supreme Court would have one Scalia and one Brennan, but not five of each.

MR. RUSSERT: To be continued. Senator Chuck Schumer, Senator Orrin Hatch, thanks very much. And we'll be right back.

(Announcements)

MR. RUSSERT: That's all for today. We'll be back next week with Watergate reporters Bob Woodward and Carl Bernstein on the secret man, Mark Felt, Deep Throat, Woodward's new book.

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