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The Alito Debate Begins

As the high-stakes battle over the confirmation of Judge Samuel Alito gears up, two senators discuss the nominee.

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  • MARGARET WARNER:

    Just a day after Judge Sam Alito's nomination to the Supreme Court, there's a fierce battle brewing over his confirmation.

    Joining us now are two members of the Judiciary Committee who will have first crack at that. They are Democratic Senator Charles Schumer of New York and Republican Mike DeWine of Ohio. Senator DeWine was one of so-called "Gang of 14" centrist senators who agreed last May that Democrats would filibuster judicial nominees only under extraordinary circumstances in return for Republicans not changing the filibuster rules.

    Welcome, gentlemen.

  • MARGARET WARNER:

    Senator Schumer, 24 hours after the nomination, how does it look to you?

  • SEN. CHARLES SCHUMER:

    Well, I think it's very much up in the air. Obviously, we always wait and find out all about the nominee, look at their history, look at documents that they've created in the course of their careers, and most important, their private interviews, and most importantly, there are the hearings. I mean, obviously, we know a little bit about Judge Alito's record, and there are things that I find troubling, but it's much too early to pass judgment.

  • MARGARET WARNER:

    Yesterday, you said you thought this was going to divide the country. What did you mean by that?

  • SEN. CHARLES SCHUMER:

    Well, there's no question about it. I mean, Sandra Day O'Connor was sort of a conservative, but a moderate, centrist conservative.

    Judge Alito, at least if you look at his preliminary rulings on the court, is much more in the mold of Justice Scalia, who is far more conservative and more divisive.

    And so I think it is a divisive nominee, and I think, you know, look, we Democrats learned a lot of lessons; when we operated from the far, far left, we ended up losing. The president, I think really made this nomination out of some degree of weakness.

    The hard right didn't like Harriet Miers, even though not a single senator said she should be withdrawn, it was these groups — the president buckled under for them and nominated someone that pleased them, but that's not really the way to govern.

  • MARGARET WARNER:

    All right. Senator DeWine, how does it look to you?

  • SEN. MIKE DeWINE:

    Well, you know, I had the chance to meet with Judge Alito today and we had a good conversation. I found him to be very engaging, and very forthcoming really; when I talked about different cases — I asked him how he decided certain cases — I found him to be very good about explaining his reasoning on different cases, and I think when he does that in front of the committee, people are going to find him to be — as I did — very engaging and very forthcoming about how he arrives at those decisions.

    I think the president has made a good pick. I think Judge Alito is really a traditional conservative mainstream judge, and, you know, that's what President Bush said he was going to pick, and I think that's what he has picked. I think he's going to be well received.

  • MARGARET WARNER:

    So you don't agree with Senator Schumer, but it shows that he was somehow buckling to the right wing that had scuttled the Harriet Miers nomination?

  • SEN. MIKE DeWINE:

    Well, no, I don't. Look, I found Harriet Miers to be a good pick. So, you know, I thought she was a good pick, but I think Judge Alito, if you look at him, I think he's the type of judge that the president promised during the campaign he was going to nominate.

    I don't think he is from the fringe at all. I think he's from the mainstream of what I would consider kind of a classic conservative judge in that he decides each case one at a time. He's a minimalist in the sense he thinks a judge should not intrude on the legislature. He thinks a judge should take a case as he gets it and should not be an activist judge. That's the impression, at least, I get.

    You know, look, we're going to have the chance to fully examine all his cases. He's decided, you know, hundreds and hundreds of cases over the last few years. We'll have a chance to examine those cases in the weeks ahead. But my first initial impression is that's the type judge he is.

  • MARGARET WARNER:

    Senator Schumer, based on his extensive record as a judge for 15 years, do you consider him a mainstream conservative as Senator DeWine said, or on the fringe?

  • SEN. CHARLES SCHUMER:

    Well, there are real doubts as to whether he's a mainstream conservative. On the third circuit, the number of time he's dissented to the right, even of the Supreme Court often to the right of judges like Rehnquist and Scalia is large, he dissented far more, say, than John Roberts dissented.

    And when a judge throws out cases, I mean, such as banning machine guns, the Family Leave Act — these are mainstream issues that conservatives and liberals have accepted, and he has found legal ways — his legal reasoning — I don't disagree with Mike DeWine, he's very legalistic, but he sometimes finds legal ways to throw out very common sense laws that most every other judge has found to be acceptable.

    So that puts into question whether he's a mainstream judge. Again, I can't answer that question until I do a lot more study of his record. But the preliminary reviews are that there's some real question about this. That's why he dissented and was so further to the right than judges we consider out of the mainstream on some significant cases.

    I'd like to sit down with him. I'd like to ask him his reasoning on some of these cases before passing judgment, but certainly his rulings, far more than John Roberts', called the mainstream nature of him into question.

  • MARGARET WARNER:

    Senator DeWine, do you discern that same kind of a pattern in his rulings?

  • SEN. MIKE DeWINE:

    No, I really don't. You know, I had a chance, and I know Chuck is going to have a chance to sit down as I did with him, and go through some of his case. I went through some of the same cases that Chuck mentioned today, the Family Leave Act, for example.

    You know a lot of the circuits went the same way as Judge Roberts did, and the Supreme Court of course went the other way. But a lot of circuits were going the same way that we went. And, you know, he wouldn't have thrown the Family Leave Act out; what he would have done is basically throw that portion of it out that pertains to the states.

    So it was a much more narrow decision than Chuck is indicating. But even go case by case — I went through each case, and I think that, you know, the committee is going to appreciate sitting down with him when we start our hearings and looking at his reason.

    I found his reasoning in each case — whether I agreed with it or not — to be very good and very interesting and it did not change my opinion of him as basically a very mainstream conservative justice.

  • MARGARET WARNER:

    Senator DeWine, many anti-abortion groups are very pleased with this nomination, based on your conversations with him today, do you think he's a vote to overturn Roe?

  • SEN. MIKE DeWINE:

    I don't think anybody knows, and I don't think anybody will know. You know, basically, the precedent that we have established here in the Senate, whether people like it or not — on the left or the right, pro-choice, pro-life — I'm pro-life — is that, you know, judges, nominees, judicial nominees are not going to answer questions about how they're going to decide cases like Roe or any other cases that might come before the court.

    That's been the precedent, whether the nominee comes from a Democrat president or a Republican president. You know, that's where we are today, whether we like it or not. So I don't think we're going to know that.

  • MARGARET WARNER:

    And, Senator Schumer, looking at his record, I know you haven't met with him yet, what's your assessment of where he is on the abortion issue?

  • SEN. CHARLES SCHUMER:

    Well, again, I'd be troubled with somebody who is pro-choice. I'd certainly be troubled by some of his rulings. Obviously in the Casey case, he was in the dissent. Even more troubling in another case where he wasn't in the dissent, but the majority talked about, you know, Roe v. Wade and Casey being settled law and he concurred by saying I agree with the holding but didn't want to agree with that.

    So there's real trouble here. Again, we have to sit down and talk to him. And Mike is exactly right: No one should ask him will you vote to overturn Roe v. Wade. That interferes with the judiciary's independence. But asking him whether he believes in precedent and super precedent — Roe is not only a precedent but what you'd call a super precedent because it was affirmed in Casey, in a ruling that talked about what kind of precedents should be followed — when you — you'd ask him about whether he would overturn laws, and I'd really like to ask him about both his concurrence in that first case I mentioned and his dissent in the Casey case.

    It clearly — when Operation Rescue says with the nomination of — I'm paraphrasing — but Operation Rescue, very extreme group, these are the people who use violence to close down clinics, who blockade clinics because they believe they're so morally superior to everybody else in their beliefs, and when they say this is a great day and they're so enthusiastic, and I think they said with Alito on the court, Roe v. Wade's days are numbered, yeah, you got to worry.

  • MARGARET WARNER:

    Senator DeWine, did you all talk, you and he talk about his views on precedent, or super precedent as I think Senator Specter has discussed, and also the right to privacy, two things that really bear on the abortion issue?

  • SEN. MIKE DeWINE:

    We did not we did not get into abortion. I would just say in response to what Chuck said, though, that, you know, he has handed down a decision that struck down partial birth abortion law. That decision probably — I'm not very happy about that decision because I'm pro-life, but it shows that, you know, he follows a Supreme Court case – as a circuit court judge he did that — you know, Chuck talks about whether this group or that group is in favor of the nominee.

    You know, I think what the American people expect us to do is to vote our conscience and not worry about which group is in favor of a nominee or against a nominee. We've got all these groups out there for and against and doing all these different things and spending all this money, I think it ought to come down to what the United States senators think, based on their conscience about a particular nominee.

    I think when people look at this nominee, they're going to think this is a good man.

  • MARGARET WARNER:

    Senator Schumer there has been a lot of filibuster talk in the air and I want to ask Senator DeWine about what he has to say about today but first let me ask you: Are Democrats among yourselves talking about the possibility of a filibuster to stop this?

  • SEN. CHARLES SCHUMER:

    No, it would be very premature. We first have to make an assessment of who Judge Alito is and more importantly, what kind of judge he will be. I would simply say at this early stage, it's too early to get into that. You wouldn't say it's on the table. You wouldn't say it's off the table. We first have to make an assessment of who Judge Alito is and that assessment, as Mike said, will not be based on the groups — I've always not listened to the groups. I've made my own opinions. I'm just saying when a very extreme group is ecstatic and says Roe v. Wade will be overturned if he gets on the court, it means you ought to be pretty — when you scrutinize Judge Alito, not the group, you ought to be very careful if you believe that Roe V. Wade should remain the law of the land.

  • MARGARET WARNER:

    But Senator DeWine, you did get into the filibuster issue today and said, as we reported in the News Summary, that you didn't think there's any way under the agreement you all made last May that this could legitimately be filibustered. Why were you — why do you think that, and why were you sending this signal now?

  • SEN. MIKE DeWINE:

    Well, you know, our group said basically — our 14 members said that it would have to be extraordinary circumstances for there to be a filibuster. There's never been a filibuster on a Supreme Court nominee — you know, some people would argue there's never been one. Some people say there was one. It's either zero or one, depending on whose history you believe.

    So it's very, very rare and it's hard for me to believe when you look at this nominee, and you look at his decisions, you look at what type of person he is, that this constitutes extraordinary circumstances. This is such a rare, rare case, unusual case that a filibuster would be in order. And that was simply what I said today.

  • SEN. CHARLES SCHUMER:

    Let me remind Mike, and he knows it because he was part of the agreement, they used the words "extraordinary circumstances." And the next line said, "Extraordinary circumstances is defined" and I think these are the exact words, "in the discretion of each senator."

    I've talked to a good number of senators on our side — and even some on Mike's side, and I think again to rule a filibuster out after a day or two, extraordinary circumstances could well mean somebody who is way out of the mainstream and will impose his views on the American people.

    Now, Mike has already come to a view that Judge Alito won't do that, but I'm not sure the — all the others of that group — in fact, I've talked to a bunch of them and they haven't.

  • SEN. MIKE DeWINE:

    Yeah and ultimately, it's going to come down to what, you know, each one — as Chuck says, each one of the 14 members of that group — there are seven Democrats, seven Republicans — each one individually reaches their own decision.

  • MARGARET WARNER:

    And, very briefly, Senator DeWine, by saying what you said today, were you declaring your support for his confirmation?

  • SEN. MIKE DeWINE:

    I'm very careful — I'm an old county prosecutor, and I believe in having a trial before you have a verdict. So I'll never, never do that until we actually have a hearing. All I meant today was so far so good.

  • MARGARET WARNER:

    All right, Senator DeWine, Senator Schumer, thank you both.