Panel on Elena Kagan's Nomination

Panel on Elena Kagan's Nomination

By Special Report With Bret Baier - May 10, 2010


PRESIDENT BARACK OBAMA: Elena is respected and admired not just for her intellect and record of achievement but her temperament, her openness to a broad array of view points, her habit, to borrow a phrase from Justice Stevens, of understanding before disagreeing, her fair-mindedness and skill as a consensus builder.

KAGAN: The law matters, because it keeps us safe, because it protects our most fundamental rights and freedoms, and because it is the foundation of our democracy.


BRET BAIER, "SPECIAL REPORT" HOST: President Obama naming Solicitor General Elena Kagan today. She would be the youngest nominee to the high court since Clarence Thomas. She starts now this process of meeting with senators and eventually the confirmation hearings.

She also was the first woman dean of the Harvard Law School, and that is a lot of the experience that the senators will look back at. There's not a long paper trail.

Let's bring in our panel about this pick, Fred Barnes, Executive Editor of The Weekly Standard, Mara Liasson, national political correspondent of National Public Radio, and syndicated columnist Charles Krauthammer. Fred, let's start with you about Elena Kagan.

FRED BARNES, EXECUTIVE EDITOR, THE WEEKLY STANDARD: There is a great tendency in this town when someone is nominated for the Supreme Court to confirm them, pre-confirm them. She is bound to be confirmed and a slam dunk, and so on.

I say wait. When you have the high-visibility nominations like this, and the Supreme Court is one of the biggest ones, you will get enormous national attention. And you just never know in these cases what kind of information, documents, the people we haven't heard from, this pops out of the woodwork.

I go back to the Nixon nominees Haynesworth and Cartswell and Reagan's nominee Judge Doug Ginsberg who is on the local appeals court here in Washington, Bill Clinton's nomination or choice of two attorney general nominees that were knocked off. These things happen.

We know so little about her that a great deal more information will pop up. We do know that she is fairly inexperienced. In recent years almost all the nominees has had judicial experience, which seems to help.

If some Republican president nominated somebody with no judicial experience and somebody who had lived in the rarefied air at the top of the legal establishment in America, which is where she has been, all the Democrats would be, they would be on a rampage against the nominee. The Republicans aren't right now. They are going to wait to see what information turns up. I think she has one bad thing and one good thing. The bad thing is the anti-military bias when she showed in trying to block military recruiters from Harvard school. The good thing is I think she will be an extremely good witness because she is amiable and likable and that helps a lot.

BAIER: Mara, on the military side, there have been military groups coming out saying it's an affront to the U.S. military that Kagan has been nominated, a number of other groups putting out statements today.

MARA LIASSON, NATIONAL POLITICAL CORRESPONDENT, NATIONAL PUBLIC RADIO: That I think is going to be the biggest flash point in her confirmation process until and unless something else is found out that is controversial.

But the White House was already saying today she was very supportive of people who chose to be in the military, and they have picture of her pinning bars on somebody's shoulder. I think that is going to be one of the flash points.

The other thing that I think is ironic is although she much like other nominees we have had for the court in recent years, conservatives as well as liberals, she spent so many years being careful, trying not to say anything on controversial topics, she did write an article about the nominating process, itself, where she criticized.

BAIER: Here it is. The quote, 1995, "The current confirmation mess derives not from the role the Senate assumes in evaluating Judge Bork but the Senate subsequent abandonment of the role and function.

When the Senate ceases to engage nominees in meaningful discussion of legal issues the confirmation process takes on an air of vacuity and farce and the Senate becomes incapable of evaluating nominees or appropriately educating the public."

She's essentially saying you have to answer the questions, and senators need to ask --

LIASSON: And she criticized the nominees for not saying anything, and the senators don't get information. That is now called the "Kagan rule," and she will be given the chance very politely to express herself on all sorts of things, and I believe she will retreat to the comfortable confines of the mode of behavior she once criticized.

CHARLES KRAUTHAMMER, SYNDICATED COLUMNIST: She will go beyond retreat, she will revoke the Kagan rule. She will find an eloquent statement to say I meant in a slightly different way. She is not going to answer any questions. She has the perfect resume to get through.

I think Fred is right. There might be something out there, an Anita Hill lurking, something you don't know about. But I think it's extremely unlikely in the absence of a bombshell we don't know about, I don't see how she is not confirmed by a wide margin.

Look, she, if you look at this on an ideological scale, it's Obama going left to center. He starts with Sotomayor at a time in 2009 when he is strong, riding high, has control of the Senate. She is pretty left, the wise Latina comment. He is in a position he can risk it.

Now he is a lot weaker, 41 Republicans in the Senate. So he goes with a more mainline liberal. He knows after next year, if he gets another pick, he will get really weakened in this, especially in the Senate he could even lose the Senate, unlikely, but possible. But he certainly will have a much smaller majority. He will go to centrist liberal like Merrick Garland who he overlooked now.

I think he's planned it politically well. You go more ideological when you're strong and you go to the center when you are weaker.

BAIER: Quickly, Mara, about the politics here. We have race in Pennsylvania, the Democratic Senate primary race pitting Senator Arlen Specter against Joe Sestak. The current polls have the race leaning toward Sestak. The latest poll is out. Specter was the only Democratic Senator to vote against Elena Kagan as solicitor general.

LIASSON: He was a Republican.

BAIER: No, no, he was a Democrat when he voted.


BAIER: He had just turned over, but he still voted against her.

LIASSON: He voted against her, but today he issued a statement where he talked about her exemplary professional and academic credentials and he appears to be getting ready to change his mind.


LIASSON: But she might have been a good pick for the reasons that Charles mentioned for White House, but for Arlen Specter she was probably the most embarrassing pick.

KRAUTHAMMER: You almost feel sorry for Arlen Specter, almost. He's gone through so many twists and turns and retreats and swerves and reverses. It reminds me of a line in a Graham Greene novel where he speaks of a protagonist that says "I prefer to tell the truth. It's easier to memorize." Specter has a lot of memorizing to do.

BAIER: Last word.

BARNES: Specter's best chance for being reelected would have been to stay a Republican. I think he is quickly learning that.


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