Transcript: Sens. Chuck Schumer and John Cornyn

May 31, 2009 — -- 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 THISWEEK.

Supreme Court history.

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

STEPHANOPOULOS: President Obama nominates the first Hispanicjustice.

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

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 kindof justice will she be? That debate this morning with Democrat ChuckSchumer, the judge's guide through the Senate. And the RepublicanSenate campaign chair, John Cornyn of Texas.

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

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

(LAUGHTER)

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

(END VIDEOTAPE)

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

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

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

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

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

And then, of course, we have what is really the gold standard injudging a judge, an extensive judicial record. She has been on thebench 17 years. More federal experience than -- more federal judicialexperience than any judge in a hundred years. And what has been clearthroughout 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 quitenatural to understand that our experiences affect us. I don't thinkanybody wants nine justices on the Supreme Court who have ice water intheir veins. But you can't let that experience supersede rule oflaw...

STEPHANOPOULOS: But did she...

SCHUMER: ... and she hasn't.

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

SCHUMER: I think she'll stand by the entire speech. I thinkthat she will show that the speech, when you read it, says rule of lawcomes 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 sentencethere is simply saying, that people's experiences matter, and we oughtto have some diversity of experience on the court. And I think that'saccurate.

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

CORNYN: Well, of course, George, the concern is that above theSupreme Court it says "Equal justice under law." And it's doesn't --shouldn't make any difference what your ethnicity is, what your sexis, 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 theumpire and what their sex or gender is, or their ethnicity. It oughtto 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 firefightercase where she apparently ignored legitimate constitutional claims ofa number of firefighters, including an Hispanic who claimeddiscrimination on -- because of the color of their skin. And now theSupreme Court, I think, is poised to perhaps even reverse that.

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

And, Senator Schumer, one of Judge Sotomayor's colleagues on thecourt, one of her mentors, really, Judge Cabranes, who was appointedby a Democrat, really scolded her in a dissent on that -- in thatcase.

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 referencewhatsoever to the constitutional claims at the core of this case.This perfunctory disposition rests uneasily with the weighty issuespresented 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 wewant in judges. She was following the precedent of the SecondCircuit.

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

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

SCHUMER: You know, we hear all these claims we don't wantjudicial activists, and that is true. We don't. Here, she was beingmodest, 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 wasdoing what a judge should do.

You can't have people say we don't want judicial activists, butthen 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 ifyou look -- you're talking about looking at her entire record, if youlooked not only at that case, but the judge's entire record in race-related cases -- this has been done by SCOTUSblog, Tom Goldstein, aSupreme Court scholar and lawyer -- and he shows that she's ruled inabout 100 race-related cases and rejected claims of discrimination andbias 80 percent of the time. Doesn't that show that she's notbringing personal feelings to bear in an improper way?

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

I might say that's in stark contrast to the way Miguel Estradawas treated, somebody who was on a path to become the first HispanicSupreme Court justice, and Clarence Thomas, somebody with a compellingstory like Judge Sotomayor, but who was subjected, at least in hiswords, 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'sreview those 17 years of federal judicial history, and let's ask thenominee some questions in a dignified Senate process.

STEPHANOPOULOS: Senator, let me bring this back to youbecause...

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

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

SCHUMER: Absolutely not, and let me explain why. First, Estradawas never a judge, so we had no way to judge what his record would bein the best way to judge it, cases that we had ruled on. And so whenwe asked him questions, he said absolutely nothing. He said, I cannotanswer this question, I cannot answer that question. In fact, JudgeSotomayor has answered more questions on hearings already, because ofher two confirmation hearings, than Estrada said. So we had totallynothing to do on with Estrada.

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

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

CORNYN: Well, George, I think -- I take a contrary view, as youmight imagine. I think this is pretext. I mean, Miguel Estradaimmigrated from Honduras. He couldn't speak English, when he was 17years old, came here, graduated from the two top schools in America,and rose to the very top of the legal profession. And yet, he wasfilibustered by Democrats who denied an up-or-down vote in the UnitedStates 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 tospeculate. That's why I...

STEPHANOPOULOS: So it's possible that Republicans willfilibuster?

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 giveJudge Sotomayor the fair hearing that Miguel Estrada, and, indeed,Clarence Thomas were denied by our friends on the other side of theaisle.

SCHUMER: Let me say this, George. I think when my Republicancolleagues -- and I think they have approached this in an open-mindedway -- when they see her record of excellence -- she's legallyexcellent -- 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 hercompelling history, I think she's virtually filibuster-proof whenpeople learn her record and her story.

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

CORNYN: Well, there are a lot of important questions. We'vetalked 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 justicefor a few of us. And, you know, this promise of equal justice underthe law is not just a motto emblazoned above the Supreme Court, thisis the standard. And indeed, by ignoring a genuine constitutionalissue about reverse discrimination in the New Haven firefighter case,you know, the comments she made about the quality of her decisionsbeing better than those of a white male -- I mean, we need to gofurther into her record to see whether this is a trend, or whetherthese are isolated and explainable events.

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