Transcript: Sens. Chuck Schumer and John Cornyn

ABC'S "THIS WEEK WITH GEORGE STEPHANOPOULOS"

MAY 31, 2009

SPEAKERS: GEORGE STEPHANOPOULOS, HOST

SEN. JOHN CORNYN, R-TEXAS

SEN. CHARLES E. SCHUMER, D-N.Y.

[*] (BEGIN VIDEOTAPE)

STEPHANOPOULOS (voice-over): Good morning and welcome to THIS WEEK.

Supreme Court history.

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: What you've shown is that no dream is beyond reach in the United States of America.

STEPHANOPOULOS: President Obama nominates the first Hispanic justice.

JUDGE SONIA SOTOMAYOR, SUPREME COURT NOMINEE: I am an ordinary person who has been blessed.

Sens. Chuck Schumer, D-N.Y., and John Cornyn, R-Tex., are the exclusive guests Sunday on "This Week with George Stephanopoulos."

(ABC News Photo Illustration)

STEPHANOPOULOS: And the confirmation battle begins.

RUSH LIMBAUGH, HOST, "THE RUSH LIMBAUGH SHOW": She's a bigot. She's a racist.

OBAMA: She is fair, unbiased, and dedicated to the rule of law.

STEPHANOPOULOS: Should Judge Sotomayor be confirmed? What kind of justice will she be? That debate this morning with Democrat Chuck Schumer, the judge's guide through the Senate. And the Republican Senate campaign chair, John Cornyn of Texas.

Then, GM becomes "Government Motors." But is that good for America? That, the Sotomayor fight and the rest of the week's politics on a special expanded roundtable with George Will, Jan Crawford Greenburg, Gwen Ifill of PBS, Paul Krugman of The New York Times, and Bush White House veteran, Ed Gillespie. And as always, the "Sunday Funnies."

JAY LENO, HOST, "THE TONIGHT SHOW": If confirmed, she would be the country's first Hispanic judge. In fact, her first order of business, deporting Lou Dobbs. That's what she said today.

(LAUGHTER)

ANNOUNCER: From the heart of the nation's capital, THIS WEEK with ABC News chief Washington correspondent, George Stephanopoulos, live from the Newseum on Pennsylvania Avenue.

(END VIDEOTAPE)

STEPHANOPOULOS: Hello again. The political spin cycles twirl faster than ever these days. It has been less than a week since President Obama made his choice for the Supreme Court, but it seems like Judge Sonia Sotomayor has already had public hearings.

Of course, the official proceedings are coming up. And for a preview of that debate, we're joined this morning by two key members of the Judiciary Committee, Republican John Cornyn of Texas, and Democrat Chuck Schumer of New York.

And, gentlemen, welcome to both of you. Let me begin by putting up the words that have caused so much controversy already this week from Judge Sotomayor, from a 2001 law review article where she says: "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

And, Senator Schumer, we saw Rush Limbaugh and Newt Gingrich call it racist, but even President Obama said it was a poor choice of words. You're going to be guiding Judge Sotomayor through this process. How is she going to explain that statement to senators when she meets with them this week?

SCHUMER: Well, I think the first thing she'll say is read the whole speech, which was then published in a law review article. And she makes it clear that while, of course, people's personal experiences guide them, rule of law comes first.

And then, of course, we have what is really the gold standard in judging a judge, an extensive judicial record. She has been on the bench 17 years. More federal experience than -- more federal judicial experience than any judge in a hundred years. And what has been clear throughout her judicial experience is that she puts rule of law first.

And as long as you put rule of law first, of course, it's quite natural to understand that our experiences affect us. I don't think anybody wants nine justices on the Supreme Court who have ice water in their veins. But you can't let that experience supersede rule of law...

STEPHANOPOULOS: But did she...

SCHUMER: ... and she hasn't.

STEPHANOPOULOS: But did she tell you this was a poor choice of words? Or will they stand by that statement?

SCHUMER: I think she'll stand by the entire speech. I think that she will show that the speech, when you read it, says rule of law comes above experience. And no one can ask for more than that.

STEPHANOPOULOS: But what about the sentence?

SCHUMER: Well, the sentence -- you know, the specific sentence there is simply saying, that people's experiences matter, and we ought to have some diversity of experience on the court. And I think that's accurate.

STEPHANOPOULOS: Senator Cornyn, what's your reaction to that?

CORNYN: Well, of course, George, the concern is that above the Supreme Court it says "Equal justice under law." And it's doesn't -- shouldn't make any difference what your ethnicity is, what your sex is, or the like.

We would also hope that judges would be, you know, umpires, impartial umpires. And, you know, the focus shouldn't be on the umpire and what their sex or gender is, or their ethnicity. It ought to be on the game. And here it's on the rule of law, I agree. But it's not just her statements. It's the New Haven firefighter case where she apparently ignored legitimate constitutional claims of a number of firefighters, including an Hispanic who claimed discrimination on -- because of the color of their skin. And now the Supreme Court, I think, is poised to perhaps even reverse that.

STEPHANOPOULOS: Well, let's take a look at that. Of course, in that case, Judge Sotomayor's court upheld a decision by the New Haven -- the City of New Haven to throw out an employment test which had been -- which a white a firefighter and others had passed, but they were denied the promotion because the City of New Haven threw out the test.

And, Senator Schumer, one of Judge Sotomayor's colleagues on the court, one of her mentors, really, Judge Cabranes, who was appointed by a Democrat, really scolded her in a dissent on that -- in that case.

He said that she didn't deal with the core issues in the case. And he went on to say: "Indeed, the opinion contains no reference whatsoever to the constitutional claims at the core of this case. This perfunctory disposition rests uneasily with the weighty issues presented by this appeal."

Those are pretty stinging words.

SCHUMER: Well, bottom line is she was doing what Judge Roberts -- or Justice Roberts called be "judicially modest," which is what we want in judges. She was following the precedent of the Second Circuit.

There were two cases, the Hayden case, and the Bushie (ph) case, that made clear what the Second Circuit's opinion was, and she was following it.

And secondly, she was simply implementing, allowing to go forward what the elected officials in New Haven had chosen to do.

SCHUMER: You know, we hear all these claims we don't want judicial activists, and that is true. We don't. Here, she was being modest, following the precedent of her court, not overruling what (inaudible) had been done. It would be quite different if New Haven -- if she was overruling what New Haven had done. So I think she was doing what a judge should do.

You can't have people say we don't want judicial activists, but then when there is a case that they don't like, they say overrule it, even though you're going outside the precedent of the law.

STEPHANOPOULOS: Let me bring that to Senator Cornyn, because if you look -- you're talking about looking at her entire record, if you looked not only at that case, but the judge's entire record in race- related cases -- this has been done by SCOTUSblog, Tom Goldstein, a Supreme Court scholar and lawyer -- and he shows that she's ruled in about 100 race-related cases and rejected claims of discrimination and bias 80 percent of the time. Doesn't that show that she's not bringing personal feelings to bear in an improper way?

CORNYN: Well, George, what you'll see from our side of the aisle during these hearings is members of the Judiciary Committee and senators who are not willing to prejudge or pre-confirm any nominee, but are committed to a fair process, and one that allows Judge Sotomayor to explain what the context is for all this and what her true feelings are.

I might say that's in stark contrast to the way Miguel Estrada was treated, somebody who was on a path to become the first Hispanic Supreme Court justice, and Clarence Thomas, somebody with a compelling story like Judge Sotomayor, but who was subjected, at least in his words, to a high-tech lynching.

So I think the most important thing that can happen here is, everybody take a deep breath, calm down. Let's take our time, let's review those 17 years of federal judicial history, and let's ask the nominee some questions in a dignified Senate process.

STEPHANOPOULOS: Senator, let me bring this back to you because...

SCHUMER: I just want to say, George, that John Cornyn is right and deserves to be commended. When some, you know, sort of on the hard right started saying she was a racist, or this or that, John Cornyn said it was terrible. And our Republican senators, to their credit, have not prejudged. I think when they examine her long and extensive record, when they see that she puts rule of record first, almost inevitably, when they see that, yes, her experience is reflected, but Justice Thomas talked about his experiences; Justice Alito talked about his experiences -- I think she's going to be approved by a very large majority.

STEPHANOPOULOS: Senator Schumer, how do you respond to this charge of hypocrisy and double standards? You led the charge against Miguel Estrada when he was trying to -- when he was nominated for the appeals court. There were internal memos among Democrats, citing as one possible reason the fact that he would be an Hispanic elevated to the appeals court. Are you using a different standard for Judge Sotomayor than you used for Mr. Estrada?

SCHUMER: Absolutely not, and let me explain why. First, Estrada was never a judge, so we had no way to judge what his record would be in the best way to judge it, cases that we had ruled on. And so when we asked him questions, he said absolutely nothing. He said, I cannot answer this question, I cannot answer that question. In fact, Judge Sotomayor has answered more questions on hearings already, because of her two confirmation hearings, than Estrada said. So we had totally nothing to do on with Estrada.

What we said about Miguel Estrada is, if he talked a little bit about his judicial philosophy, we could give him a fair hearing. He absolutely refused. He had no record as a judge. The two standards are like night and day.

Justice Roberts, Justice Alito, they answered questions far more extensively than Estrada did, and I think most commentators said they learned a lesson from Estrada, that you have to answer some questions about your judicial philosophy, particularly when you don't have a record as a judge.

CORNYN: Well, George, I think -- I take a contrary view, as you might imagine. I think this is pretext. I mean, Miguel Estrada immigrated from Honduras. He couldn't speak English, when he was 17 years old, came here, graduated from the two top schools in America, and rose to the very top of the legal profession. And yet, he was filibustered by Democrats who denied an up-or-down vote in the United States Senate.

Now, can you imagine if the shoe were on the other foot today?

STEPHANOPOULOS: Is filibuster on the table today?

CORNYN: Well, I think it's really premature to say that, or to speculate. That's why I...

STEPHANOPOULOS: So it's possible that Republicans will filibuster?

CORNYN: I'm not willing to judge one way or the other, George, because frankly, we need to not prejudge, not pre-confirm, and to give Judge Sotomayor the fair hearing that Miguel Estrada, and, indeed, Clarence Thomas were denied by our friends on the other side of the aisle.

SCHUMER: Let me say this, George. I think when my Republican colleagues -- and I think they have approached this in an open-minded way -- when they see her record of excellence -- she's legally excellent -- of moderation. She is not a far left-wing judge.

SCHUMER: Businessweek said her record on business was moderate. The Wall Street Journal called her mainstream. And then her compelling history, I think she's virtually filibuster-proof when people learn her record and her story.

STEPHANOPOULOS: Let me finish up with Senator Cornyn. Your colleague, Republican Senator Chuck Grassley, has already said he believes that she will be confirmed. Do you see anything standing in the way of Judge Sotomayor's confirmation right now?

CORNYN: Well, there are a lot of important questions. We've talked about some of them this morning. We need to know, for example, whether she's going to be a justice for all of us, or just a justice for a few of us. And, you know, this promise of equal justice under the law is not just a motto emblazoned above the Supreme Court, this is the standard. And indeed, by ignoring a genuine constitutional issue about reverse discrimination in the New Haven firefighter case, you know, the comments she made about the quality of her decisions being better than those of a white male -- I mean, we need to go further into her record to see whether this is a trend, or whether these are isolated and explainable events.

STEPHANOPOULOS: And we'll be doing that. Gentlemen, thank you both very much.