Senators Leahy and Sessions on "This Week"

Senators Leahy and Sessions on "This Week"

By This Week - May 16, 2010

TAPPER: Hello again. Breaking this morning, the White House has sent a letter to the National Archives, urging immediate release of 160,000 pages of documents from Supreme Court nominee Elena Kagan's time in the Clinton White House. This comes as she heads to Capitol Hill this week for another round of meetings to shore up her support as Republicans increase her attacks against her.

Joining me this morning exclusively, chairman of the Judiciary Committee, Democratic Senator Pat Leahy. He's at Lyndon State College in Vermont, where he will give the commencement address later today. And here with me in the studio, the top Republican from the Senate Judiciary Committee, Senator Jeff Sessions of Alabama. Thank you both, gentlemen, for joining me today.

Senator Leahy, I'll start with you. Just a quick question of timing. When do you expect these confirmation hearings to begin, around the end of June?

LEAHY: Well, I'm going to sit down this week with Senator Sessions. We'll work out a time. I think her questionnaire will probably come back in the next day or so, the questionnaire we sent from the Senate Judiciary Committee, and we'll work out a time.

Her predecessor, of course, was confirmed in two and a half weeks from the time he was nominated, Justice John Paul Stevens. I don't anticipate that, but we have a pretty good track record. Chief Justice Roberts and Justice Sotomayor ended up taking exactly the same amount of time, and we can follow a schedule roughly like that, we'll be done this summer.

TAPPER: While I have you, Senator Leahy, I want to ask you about an essay that Elena Kagan wrote for the University of Chicago Law Review in 1995, in which she criticized Supreme Court confirmation hearings. She said, they are, quote, "These hearings have presented to the public a vapid and hollow charade in which repetition of platitudes has replaced discussion of view points, and personal anecdotes have supplanted legal analysis."

Didn't she have a point? Haven't these hearings become in the last few decades a way for nominees to avoid answering questions on how they will rule on a specific issue?

LEAHY: Well, for one thing, I talked to her about that essay. She said I think I'm probably going to hear that quoted back to me a few times during the hearing. I said, starting with me. But you know, it's a doubled-edged sword. If you ask a nominee about certain burning issues of the day, they are issues that are probably going to go to the Supreme Court, and they have to be very careful not to say how they might rule on a case that's coming up. Otherwise they're going to have to recuse themselves and not be able to hear that case. On the other hand, there's only 100 people who get to vote on this lifetime nominee. We have to represent 300 million Americans, and so we have to ask as good questions as we can to make up our mind just how we're going to vote.

TAPPER: Senator Sessions, what do you want to ask her? What are you most interested in hearing from her?

SESSIONS: I think we'd like to know in a real honest sense whether her philosophy of law is so broad in her interpretation of the Constitution that you are not faithful to the Constitution and law. In other words, a judge under their oath says you serve under the Constitution, not above it. But we want to know whether she's faithfully will follow it even if she doesn't like it. And she did criticize a lack of specificity in some nominees. I thought John Roberts struck about the right tone, perhaps even more open -- was more open than Sotomayor, for example. So she's criticized the nominees and the process for not being more specific. I think we'll be looking at her testimony, because she has so little other record. This is going to be a big deal. It's so important how she testifies.

TAPPER: You have expressed concern about a step she took when she was dean at Harvard Law School, and she continued the policy of Harvard Law School of keeping military recruiters from using the Office of Career Services, although she did change that policy later in her tenure there.

The White House has said she had great relationships with veterans and with the military while dean. What's specifically your concern about this issue?

SESSIONS: I have great concerns about that. That went on for a number of years. It was a national issue. People still remember the debate about it. She -- she reversed the policy. When she became dean, they were allowing the military to come back on campus and had been for a couple of years.

TAPPER: But they were always on campus, right? They just weren't using the Office of Career Services.

SESSIONS: Well, look, yeah, this is no little bitty matter, Jake. She would not let them come to the area that does the recruiting on the campus. They had to meet with some student veterans. And this is not acceptable. It was a big error. It was a national debate. Finally, we passed the Solomon amendment. They really didn't comply with it. Eventually, she joined a brief to try to overturn the Solomon amendment, which was eventually rejected 8-0 by the United States Supreme Court, and she was not in compliance with the law at various points in her tenure, and it was because of a deep personal belief she had that this policy, which was Congress and President Clinton's policy--

TAPPER: Don't ask, don't tell, right.

SESSIONS: -- not the military soldiers' policy--


LEAHY: Could I have a word?

TAPPER: Yes, Senator Leahy, you're shaking your head. Do you disagree with Senator Sessions?


TAPPER: This is no itty bitty matter, he says.

LEAHY: Well, this is like in Shakespeare, sound and fury signifying nothing. She -- the recruiters were always on the Harvard campus. She's shown her respect for the veterans there. She every year on Veterans Day, she had a dinner for all the veterans and their families who were there at Harvard. Recruiting went on at Harvard every single day throughout the time she was-- she was there. She was trying to follow Harvard's policy. She was also trying to make sure that students who wanted to go in the military could.

Scott Brown, who is a Republican U.S. senator and a member of the Active Reserves -- he's still in the military -- he met with her and left and said he thought she had high respect for our men and women in uniform, and he had no qualms about that.

I think, let's, you know, I realize you have so many special interest groups on the far right or the far left who have points. Ignore those. We ought to make up our own mind. We should be bright enough to do it.

This recruiting thing -- if somebody wants to go in the military, they usually find a recruiter. I mean, I don't think there was a recruiting station on the campus when my youngest son went and joined the Marine Corps. He wanted to join the Marine Corps. He had no trouble finding a recruiter. And I think in this case, the recruitment went on at Harvard all the way through. This really is trying to make up something out of whole cloth.

SESSIONS: Jake, I don't agree. This is controversial at Harvard. That's one reason she began to try to meet with military to try to assuage their concerns. She disallowed them from the normal recruitment process on campus. She went out of her way to do so. She was a national leader in that, and she violated the law of the United States at various points in the process.

TAPPER: Well, let's talk about the legal aspect of it, because Chairman Leahy, Senator Sessions points out that when she was dean, she joined a friend of the court brief suing the Pentagon effectively, challenging this law, and it was rejected. That point of view and the friend of the court brief were rejected 8 to nothing by the Supreme Court. That includes Justice Ginsburg, Justice Breyer, Justice Stevens saying Elena Kagan, you're wrong, your side is wrong. Now, it was just a friend of the court brief, but doesn't that unanimous verdict basically show that Kagan was expressing her political beliefs and not looking at the rule of law?

LEAHY: You know, if we had -- if we said that any lawyer who ever filed a brief at the Supreme Court, that they couldn't serve on the Supreme Court because the case lost, half the members who are on the Supreme Court today would not be on the Supreme Court.

She stated a position. She challenged the law. The law was upheld, and she said we will follow the law at Harvard. I don't know what else you could ask for.

TAPPER: All right, I want to move on to--


LEAHY: Laws are challenged all the time. That's why we have appellate courts.

TAPPER: I want to move on to another matter. When -- during the Bork hearings, Robert Bork, Senator Sessions, was asked about his personal views of God, whether or not he believed in God. A lot of people thought those questions went too far. In the last few -- in the last week, we were told by the White House that after a blog post went up at that incorrectly said that Elena Kagan was not straight -- and again, that is not true -- but Elena Kagan went to the White House, said this is not true, I am straight. How far is too far when looking into a nominee's personal life?

SESSIONS: I think you've got to be careful about that. I don't believe that is a fundamental judgment call on whether a person can be a good judge or not. We need to know how able they are to ascertain the real legal issues in a case and deciding it fairly and justly. Will they restrain their personal political views and follow the law faithfully and serve under the Constitution? That's the fundamental test in personal integrity. So those are questions that go to the heart of whether a person will be an able judge or not.

TAPPER: OK, we only have a couple more minutes. I want to ask you both about separate issues. Senator Leahy, on this program last Sunday, Attorney General Eric Holder said that the administration was going to push for changing Miranda rights. Are you concerned at all about the civil liberty implications about delaying the time before Miranda rights have to be read to a terrorist suspect?

LEAHY: Well, I sat down and talked with the president about this. The question is not whether -- centered (ph) so much on civil rights one way or the other, it's what a court will agree to. After all, it's the Supreme Court that set down basically the rules of the Miranda. Whatever changes might be made have to be made within the confines of what the United States Supreme Court has already said. I think the president and Eric Holder understand that.

Certainly there is an emergency doctrine which allows you if you had taken somebody into custody who is a terrorist to continue to question him for a period of time without them being presented to a magistrate or being given the Miranda warning. And certainly in the last several cases of people who have been apprehended, we have gotten tremendous and are continuing to get tremendous information from those people.

TAPPER: Do you think the Miranda warnings and do you think these rules need to be changed? It sounds like you don't.

LEAHY: I'm not saying that. I think you have to have maximum flexibility within the rules, but the idea that you're going to be able to pass a statute to change a constitutional ruling of the Supreme Court, you can't do that.

TAPPER: Senator Sessions, I'd be remiss if I didn't bring up the BP oil spill, given the fact that you represent one of the Gulf states. Democrats are pushing legislation that would lift the cap on how much BP has to pay for damages, not including the cleanup costs. They want to lift it from $75 million to $10 billion. Republicans have been blocking it. What is your position on this?

SESSIONS: Well, I've offered legislation -- supported legislation to expand it also. But the BP people repeatedly stated at the hearing and have told me personally, they are going to be responsible for all legitimate claims that are made against them. So I think we need to watch that closely. They signed as the responsible party. In other words, when they got the privilege to drill in the Gulf, they said we will be responsible for all damage to the beaches, all cleanup costs. Then the question is, how far beyond that do they go and other consequential economic or other damages. They have said they will be responsible for paying them. They should have more than enough money to pay them, and we expect them to pay every cent.

TAPPER: Senator Leahy, to sum up -- yeah, go ahead.

LEAHY: Jake, when the Democrats tried to put into law to make sure they could be -- they'd have to pay for it, and that big oil everywhere would have to pay for cleanup, Republicans filibustered and blocked that. Frankly, this is something where Republicans and Democrats ought to come together and not allow big oil to call the shots, but allow the law to call the shots.

TAPPER: All right. That's all the time we have. Senator Leahy, good luck with your commencement address. We'll all be watching. Senator Sessions, thanks so much for joining us.

LEAHY: Thank you.

SESSIONS: Thank you. Good to be with you.


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