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Sen. Schumer: Alito would vote to overturn Roe

Democrat says no decision has been made regarding filibuster

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Sen. Charles Schumer said the Democrats must decide whether Alito is within the "mainstream."

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WASHINGTON (CNN) -- During a break in the Supreme Court nomination hearings of Judge Samuel Alito, CNN's Wolf Blitzer asks Senate Judiciary Committee member Sen. Charles Schumer, D-New York, whether Democrats intend to block Alito's nomination.

WOLF BLITZER, CNN ANCHOR: We're joined by one of the more outspoken Democrats on the committee, Sen. Chuck Schumer of New York. He's joining us. Jeff Toobin and Jeff Greenfield are here with me as well.

Senator, it looks, based on everything we've seen and heard so far, given the 55 Republicans who are the majority in the U.S. Senate, barring some major gaffe over the next few hours or days, it looks like this is pretty much a done deal. Would you agree?

SEN. CHARLES SCHUMER: Well, I wouldn't say that. I would say this, the Republicans march in lock step. And that was true before the hearings. Do you know of the votes we have had on over 40 Court of Appeals judges -- and there are 50 Republican or so, so it was over 2,000 votes -- only three have ever voted no on any of them? So they march in lockstep.

And that means that it's impossible to block a nominee, whether it's Supreme Court or Court of Appeals, no matter how right wing. The real question remains with the Democrats, and that is, do we try to block a nominee by filibuster? We've done it in a rare number, a small number, of people who are extreme, and that's a question we'll have to ask after Judge Alito's hearings.

Now, as for Judge Alito himself, it's amazing how everyone in the media just sort of goes along with all this. He says, I will keep an open mind on Roe. Well, has anyone ever said they won't?

He said, no president is above the law. Those were the two headlines in all the papers this morning.

Has anyone said, oh, yes, the president's above the law? So I think the -- it's -- we each have to make a determination, particularly on the Democratic side, about how extreme he was. As you know I questioned him pretty hard on Roe v. Wade. I came to a conclusion that in all likelihood he would vote to overturn. That was increased this morning by Senator Durbin's questioning, made it -- you know, it seemed even more so. And that's something that'll have to be weighed along with other issues.

BLITZER: Jeff Greenfield wants to ask a question. Go ahead, Jeff.

JEFF GREENFIELD, CNN SENIOR POLITICAL ANALYST: Hi, senator. Let me offer you a hypothesis you probably won't like, that you and some of your colleagues simply miscalculated where the mainstream now is, as opposed to 15 and 20 years ago. You mentioned, 55 Republican senators, a conservative president who said he want to overturn Roe. Isn't it possible that it's your side that is now outside the mainstream, not Judge Alito?

SCHUMER: Well, let's say, you know, 70 percent of all Americans for instance, Jeff, say they do not want a Supreme Court justice who will vote to overturn Roe. I think the mainstream has moved a little bit to the right, but the president's nominees are quite far to the right.

And the bottom-line question is we at least certainly understand that Judge Alito will be conservative, and we certainly understand that he is not going to have the same views as the average Democrat on the Judiciary Committee. The question is, how far over is he? Most Americans do not believe in some of the things that, say -- Justice Thomas, I would say, would be out of the mainstream. And is Judge Alito going to be like a Justice Thomas? And that's the question we have to try to get to the bottom of.

And at these hearings where it's, you know -- the nominee is under no compulsion to answer, but still the hearings are important for you to get a view of that. You have to get a feel for it. With Judge Roberts, when he came before us, most people's view, just about everyone's view, is that he wasn't out of the mainstream. Some of us voted for him, some of us voted against him, depending on how well we thought he answered questions, depending on the fact that some people say, look, I'm going to vote against someone who is going to move the court to the right. But no one talked about blocking him. The fundamental question is, do you block somebody? And the answer to that is, is he out of the mainstream? So it's not is he conservative, does he think like I do; it's rather, is he so far over that he'll take his own views and impose them on the American people, and those views are far over.

JEFFREY TOOBIN, CNN SR. LEGAL ANALYST: Senator, Jeff Toobin here.

You and other Democrats were talking a lot about the issue of national security, executive power, warrant-less wiretaps, and there's been some questioning about that during these hearings. What has Judge Alito said or not said on that subject that you think might get people to vote against him?

SCHUMER: Yes. Well, I think he hasn't said enough. On most issues he stated some broad platitudes that don't really tell you anything, that just about every nominee from Justice Ginsburg to Justice Thomas would say. And so you have to probe further. I tried to do that on the issue of choice yesterday, and I think I made some progress. And you also have to make a judgment, and that's often a judgment that is not a science, but really an art.

BLITZER: Senator, on this whole notion of a filibuster, you know that you're very familiar with your colleagues, so-called "Gang of 14," seven Democrats, seven Republicans, the threat that the Senate Republican leader, the majority leader, Bill Frist, has made of triggering a so-called nuclear option. At this point, would you be inclined to push for the filibuster which would basically need 60 votes to overturn that filibuster?

SCHUMER: It's a good question, Wolf, but it's premature to answer it. I think I have to wait until the end of the hearings and then go back, read the transcripts, look at Judge Alito's history, talk to my colleagues and come to a conclusion. I would say it is certainly not off the table at this point. But I would also say that I don't think anyone on the committee, certainly myself and anyone I've talked to, has said we definitely should. It's a question of, first, hearing completely from Judge Alito and coming to a determination, and that is, he so far out of the mainstream that he doesn't belong on the court?

BLITZER: All right, we'll leave it right there. Senator Schumer, thanks very much for joining us. We'll look forward to your questioning. That's coming up later today.

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