Fox News "Fox News Sunday" - Transcript: Interview with Senator Dick Durbin

Interview

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WALLACE: Joining me now from Springfield, Illinois, the number two Democrat in the Senate, Dick Durbin.

Senator, welcome.

Let's start with the Democrats' basic positions since Justice Kennedy announced his retirement this week. Here is your leader in the Senate, Senator Chuck Schumer.

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WALLACE: Now, Senator, Donald Trump told the voters that he was going to pick his nominees from that list. There was a big issue in the campaign. Donald Trump won.

Isn't he entitled, just like Barack Obama was entitled to have a legitimately qualified nominee approved by the Senate?

SEN. DICK DURBIN, D-ILL., SENATE MINORITY WHIP: Of course he is. Every president would be.

But you just had a man on your show, Mr. Leo, who has an extraordinary position. He is involved not only in the selection process, he is key to it. When the White House chose Neil Gorsuch, they didn't call Mr. Gorsuch, Judge Gorsuch, to tell him. They called Mr. Leo, and they said, would you like to call Judge Gorsuch and tell him the good news, that he's going to be the president's nominee?

That's what's going on here. The Federalist Society is going through a clearance process, make no mistake. They make sure before any name really reaches the finals, they know exactly what --

(CROSSTALK)

WALLACE: I don't know about that as a fact.

But let me just ask you -- so what? I mean, the fact is the Federalist Society has vetted these people, they are all distinguished jurists. They are obviously conservative, which you don't like. But how can you say anybody who is on that list is out?

DURBIN: I didn't say that.

WALLACE: Well, Chuck Schumer says that.

DURBIN: What I will say is this, I think -- well, I can tell you this, I think the Chris Wallace second debate, if that's what it was, question to then-candidate Donald Trump nailed it. The president is looking for someone who will overturn Roe versus Wade.

But even equally important, he's looking for someone on the court who will make sure that they rule that the Affordable Care Act's protection of those with pre-existing conditions is unconstitutional. That will mean thousands, if not millions of Americans will lose their health insurance because of this decision on who will fill the Kennedy vacancy on the court. That hits home for most Americans.

We may be divided and we certainly are on the issue of abortion, but when it comes to basic health care for American families, protecting those who have pre-existing conditions, this administration is attacking that on constitutional grounds. And at this moment, Donald Trump is looking for a justice who's going to rule in his favor.

WALLACE: Leonard Leo says the Democratic Party is using Roe v. Wade as a scare tactic -- I just asked him about it -- to try to defeat the president's nominee.

I want to play a clip from one of your Senate colleagues, Kirsten Gillibrand, this week. Here she is.

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WALLACE: Senator, no one is talking about arresting women. Isn't that the definition of a scare tactic, what Kirsten Gillibrand was saying there?

DURBIN: What Kirsten is saying goes back to your question, Chris, to candidate Donald Trump. You talked about Second Amendment, you came back to him and said, well, what about Roe versus Wade? He was quick to add, that's what I want to do, and he said just yesterday, the day before --

(CROSSTALK)

WALLACE: I understand. But even if Roe versus --

DURBIN: This is a justice on the court for 40 years.

WALLACE: But, sir, even if Roe versus Wade would overturn, nobody is suggesting that women would be arrested. And in addition to which, it would be -- as he pointed out -- as President Trump or candidate Trump pointed out, it would go back to the states.

I'm not saying it's not a big deal, but nobody is suggesting that women would be arrested if Roe versus Wade were overturned.

DURBIN: The basic issue at hand here is whether or not a woman has the power to make decisions, the freedom to make decisions regarding her own body and her own life. That is the fundamental issue here, and when you start denying that to women across America, those are fighting words because these women believe that they have to make this decision, they have the right to make this decision. Those on the other side disagree. It gets down to that fundamental principle.

WALLACE: To have any chance to win, you not only are going to have to pick off at least one of the Republican senators, and we talked about the two Republican pro-choice women senators, Collins and Murkowski. You're also going to have to keep all 49 of your Democrats on board. And the fact is, during the Gorsuch nomination, President Trump's nomination of Neil Gorsuch last year, three red state Democrats up for re-election, Heitkamp, Donnelly and Manchin, all voted for Gorsuch.

How, as the Senate whip, the person in charge of counting votes, how certain are you that all three of those Democrats will stay on board this time and vote against whoever the president nominates?

DURBIN: Well, of course, we don't have a nominee's name to start with, and that's a critical point.

And the second thing I would say is this. Each and every one of my colleagues on the Democratic side understand the historic significance of this decision. As the president said, this is a justice who's likely to serve for 40 years, is going to have dramatic impact on health care in America, on the rights of privacy in America. And I will say, for each of my colleagues, they have to make an individual, important, principled decision.

And the question, as we found with Affordable Care, will the president pick someone who is so far out of the mainstream, in the case of Affordable Care, three Republicans broke with the president. If only one or two -- you understand the dynamics --

WALLACE: Right.

DURBIN: And the math of the Senate at this moment with Senator McCain, if one or two Republican senators believe this choice is out of the mainstream, then we could have a very serious issue before us on confirmation.

WALLACE: I have a -- less than a minute left and I have one final question.

Democrats would be able to block this nomination if you still have the filibuster. Back in 2013, when the Democrats were in the majority, the leader, Harry Reid, decided to change the rules of the House, and Democrats supported him, to end the filibuster, make it a simple majority for all cabinet appointments and for all lower court appointments.

And then last year, with the Gorsuch nomination, McConnell, Senator McConnell, extended that to the Supreme Court.

Looking back, because you guys opened the door to it, was that a mistake?

DURBIN: I can tell you, Harry Reid faced a dilemma changing the Senate precedent and rules, and he did not change it for the Supreme Court. I'm glad you put that into your preface. But, at that point, Mitch McConnell, Senator McConnell, had been using the filibuster in ways never imagined in the Senate to stop any judicial nominees from moving forward on important courts like the D.C. Court of Appeals, which was a hard decision. But Harry Reid made an exception to the Supreme Court.

WALLACE: But -- but -- but you guys used it. I mean there's no original sin here, senator, both sides used it.

I'm -- what I'm just asking is this. Looking back at it and looking at the fruit of it now, the fact that you cannot stop this nominee on your own, the Democrats can't, do you have second thoughts about having changed the rules back in 2013?

DURBIN: Well, you're assuming again, Chris, that Harry Reid did not recognize this possibility. He did. And he said it took -- it would take 60 votes for the Supreme Court. It was Mitch McConnell who changed that rule, that fundamental rule on the Supreme Court.

WALLACE: Senator Durbin, thank you. Thanks for joining us. Always good to talk with you, sir, and please come back.

DURBIN: Thanks, Chris.

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