NEWSMAKER: CHARLES SCHUMER
July 20, 2005

Sen. Charles Schumer, D-N.Y., a member of the Senate Judiciary Committee, speaks about Supreme Court nominee John Roberts Jr.'s legal record, possible questions during the confirmation hearings and the potential of a filibuster.

 

Online NewsHour Special Report: Supreme Court Watch Profile: John Roberts Jr. July 19, 2005: Three U.S. senators offer their initial reactions to the Roberts nomination. July 6, 2005: Senators discuss the upcoming Supreme Court justice confirmation battle. July 5, 2005: Historian Ellen Fitzpatrick looks at the justice confirmation process and past nomination fights. July 1, 2005: Analysts Mark Shields and Ramesh Ponnuru discuss the debate over the next Supreme Court nominee. July 1, 2005: Justice Sandra Day O'Connor resigns. Legal analysts discuss her legacy. Browse the NewsHour's coverage of the law.   News for Students: Lesson Plan: Supreme Court Confirmation Activity Top Story: Sandra Day O'Connor, First Female Justice, Retires 07.01.05     U.S. Supreme Court Supreme Court Historical Society	GWEN IFILL: Now to New York's senior senator, Chuck Schumer, a member of the Senate Judiciary Committee, and one of only three Democrats who voted against John Roberts when his nomination to the federal D.C. Court of Appeals came before the committee in 2003. Welcome, senator. SEN. CHARLES SCHUMER: Glad to be back here, Gwen.
	Voting against John Roberts
	GWEN IFILL: Why did you vote against John Roberts in 2003? SEN. CHARLES SCHUMER: Well, I voted against him for one simple reason: And that is he really didn't answer the questions that I and others posed to him fully and some he just refused to answer. I asked him, for instance, his views of a previous case, Morrison, which involved the great reinterpretation of the commerce clause and cutback on the Violence Against Women Act, and he said he wouldn't answer it. I asked him, for instance to name three cases that he disagreed with, already settled cases in the Supreme Court; he wouldn't answer that. I asked him what cases he considered activist and he picked an 1899 case from the California State Supreme Court. This is not being fully candid with the committee in letting us explore somebody's views. He did answer some questions. But in too many he did not. And that's why I voted no. GWEN IFILL: Would that same lack of candor at that time, if it were expressed again in this setting, would that be a disqualifying characteristic for you? SEN. CHARLES SCHUMER: More so. I'm hopeful that Judge Roberts will realize that when you're being nominated for the Supreme Court, you have a responsibility, an obligation to the nation to fully express your views. I mean, after all, a Supreme Court nominee has huge powers over the lives of average Americans. With the flick of a pen, that Justice can change lives dramatically, tens of millions of lives, one decision. And to hide your views, not express your views when that is the number one criteria that many of us are using and I think most Americans would use as to whether you should be on the court would not be living up to your obligation. I'm hopeful that Judge Roberts will understand that and answer the questions fully. No one's trying to trick him or play "gotcha." I'm going to meet with him tomorrow and actually hand him some of the questions I'm going to ask him a month later. I'm not trying to surprise him, but I do think he has an obligation to come fully forward with his views.
	The nominee's qualities
	GWEN IFILL: Based on your examination of his record then in 2003 and now, what would you say are his strongest and his weakest qualities? SEN. CHARLES SCHUMER: Well, clearly his strongest qualities are his resume and his history. And that's, of course, what the president and others have stressed. And it's an excellent resume and it's an excellent history. He's one of the leading lawyers here in Washington. But that's not enough. I think most people would rather have a nominee who didn't have such an illustrious history, who would understand that the court's job is to preserve the rights of individuals, women's rights, civil rights, workers' rights, than somebody who went to Harvard Law School or Yale Law School who was going to take away those rights and not defend those rights. GWEN IFILL: What have you seen in his record, which leads you to believe he does not believe those things? SEN. CHARLES SCHUMER: Well, his record is very skimpy, not his fault. For most of his brilliant legal career, he was arguing cases for someone else. He was either arguing for the government when he worked for the government, and that would be arguing for whomever the president was; it was President Bush, first Bush, or he was arguing for clients of various sorts. He only has spent 20 months on the court where we can sort of get an idea of his views and most of the decisions he participated in are not the kinds of decisions that are made in the Supreme Court. And so we don't know much about his views. And that's why I don't think you've heard a single Democrat say that we're for him or against him. You can't do that. I'm surprised so many Republicans have before we fully know the views of the man: the judicial philosophy, the method of legal reasoning, how quickly he would overturn existing case law. These are crucial questions to average Americans even though they're rather abstract questions. GWEN IFILL: You just heard Andrew Card talk about what he would consider to be the line of appropriateness in the questions, which are directed to Judge Roberts during the confirmation hearings. What is your interpretation of that? SEN. CHARLES SCHUMER: Well, I think a good number of Judge Roberts' advocates seem to want to make sure that he's not asked the hard questions. And that's really wrong. And you wonder why. The laws -- the rules are quite clear. You cannot ask someone a question about a specific case they might hear. If I were to say, Judge Roberts, how would you rule on Exxon - I mean, on Enron if it came before you, he should not answer that question, shouldn't be asked that question. But if I were to ask him, Judge Roberts, what's your view on corporate ethics; how far do you think the Supreme Court can go in own forcing the rights of shareholders, for instance, and what's the balance between state and federal law here, he'd have an obligation to answer that question. So you can't ask about a specific fact situation, but you can ask just about everything else. And, you know, Judge Miguel Estrada, unfortunately, was so disingenuous with the court when you said, what's your general view of the First Amendment, he said that might prejudice me when I had to rule on a case in the future. And, justifiably, I think, we did not support his nomination because when you go to these courts, and particularly the Supreme Court, so important, you have an obligation. And I say to average folks, you know, if you applied for a job and the employer said fill out this questionnaire and answer these questions, and you said no, do you think you'd get the job?
	Is a filibuster possible?
	GWEN IFILL: Senator, you were not a member of the Gang of 14 that came up with this judicial filibuster -- anti-filibuster, I guess, agreement, but if you had to - SEN. CHARLES SCHUMER: It was really an anti-nuclear option agreement -- GWEN IFILL: Well if you - SEN. CHARLES SCHUMER: -- more than an anti-filibuster agreement. GWEN IFILL: If you wanted to decide, if you wanted to guess whether extraordinary circumstances would apply to those colleagues of yours who believe that that is what it would take to filibuster a Supreme Court nominee, can you imagine Judge Roberts fitting that criteria? SEN. CHARLES SCHUMER: Well, of course you can imagine it. Either one of two large ways -- one is he refuses to answer questions in really a straightforward and honest manner tell us his views of the major issues that will be facing the court in the upcoming decade or two; and second, if when he expresses those views they are so far out of the mainstream, that people have the view, senators and the American people have the view that this is somebody who wants to make law, not interpret law, but wants to impose his own system of values or whatever else on all of America. GWEN IFILL: But here are the numbers. There are 55 Republicans as you point out, most of whom have already said they're planning to support the president's nominee. You need only five more Democrats to join them in order to avoid a filibuster. It seems like a very high mountain to climb in this current climate. SEN. CHARLES SCHUMER: Well, you know, this is my first Supreme Court nomination, but having talked to senior members of our committee like Pat Leahy and Joe Biden and Ted Kennedy, things change at these hearings. Let me give you a couple of examples: Judge Carswell was confirmed unanimously for the court of appeals, I think it was the Fourth Circuit, and then eight months later was nominated to the Supreme Court, went through the hearings, went through the research process, and didn't get in, and so things change, and I think it's premature to say, yes; it's premature to say no. One should look at the hearings and thoroughly examine this nominee. And I understand many Republicans are backing the president. I'm sure if it was a Democratic president, many Democrats would, too, so I don't condemn them for it, but I just think it's not the right thing. And when you are the loyal opposition, as we are, you have a special obligation to examine those views. GWEN IFILL: So if Andrew Card said, as he did, that he expects Judge Roberts will be confirmed, you say not so fast? SEN. CHARLES SCHUMER: Yeah, I would. I'd say the jury is out, so to speak. GWEN IFILL: Sen. Charles Schumer, thank you very much for joining us. SEN. CHARLES SCHUMER: Thank you.