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Elena Kagan Hearings; David Petraeus Hearings

Aired June 29, 2010 - 12:00   ET


JOHN KING, CNN ANCHOR: Live picture of the United States Capitol there. It is a hot but hardly a sleepy summer day here in Washington. Inside the capitol today, two important confirmation hearings. Elena Kagan, the president's nominee for Supreme Court, and General David Petraeus who will take over the command of U.S. and NATO forces in Afghanistan.

Let's go back to the Petraeus confirmation hearings. He's before the Senator Armed Services Committee. Questioning him at the moment, that man, Jim Webb of Virginia. A democrat, but a man who served as the navy secretary in a republican administration years ago.


SEN. JAMES WEBB (D), VIRGINIA: You kind of know who is going to clear, and they have done a pretty good job in terms of clearing. It was not really clear, no pun intended, who was going to hold and who was going to build. And I would like to share with you an excerpt from a letter I received yesterday, and get your thoughts on the phase two and phase three of this strategy.

This letter was written by an individual who was a great mentor to me and I became a Marine Corps general, and very thoughtful individual who said family members, like so many of us have -- he's had family members in Afghanistan for more than five years at this point.

He said this. The national strategy as currently implemented is seriously flawed, talking about clear hold and build. He went on to point out that the clear phase as a military responsibility has great faith in it although he did have some discussion about the difference between living among the population and operating out of fobs and those sorts of things.

He says the hold phase is where the strategy's serious problems start. The afghan National Police are the logical force to hold a cleared area. The bulk of the population with ample reason considers the ANP to be a corrupt, untrustworthy and illegitimate organization. This is problem is compounded by the fact that the bulk of the population also holds the same view of the Karzai government.

They consider the central government to be a corrupt, irrelevant entity. The build phase is now largely a figment of the imagination, according to this general. In the final analysis, the three-pronged strategy has two broken prongs. It is a charade summing to the point that the problem and its cures are essentially in the political vice of the military realm.

We have a solid military base in Afghanistan, writes the general. However, it is meaningless unless the civilian leadership attacks the political problems. I would imagine that in concept, you would probably at least agree with his bottom line here. And the question is, in your capacity, what do you believe can be done in order to attack these political problems and make this policy a success?

GENERAL DAVID PETRAEUS, U.S. ARMY: Well, the truth is that in counterinsurgency operations, military leaders end up getting involved in civil military activities as you know. You have lived it. You know it. And that is not just inevitable, it is essential.

You must capitalize on every capability that is out there. Host nation, U.S., international, whatever it may be. But at times, you have to make up for what might not be there. Again, same three categories. But to have a sustainable to reach an enduring situation, such as we were able to reach, I think, touch wood, and not just in Anbar, but in Iraq or at large, although the final chapter is certainly not written and there is plenty of political drama going on there now.

But over time, we were obviously able not only to clear areas and to turn bad guys into at least no longer bad, no longer opposing, in many cases supporting the new Iraq. Then citizens step forward, they were given a stake in the success of the new Iraq, they felt included, and there was a certain degree of self-policing among the community that is so important as it works forward.

And then as you establish the formal security forces and so on. And there's no question that the police in an insurgent situation facing an in insurgency are the most vulnerable. They are very susceptible to intimidation, to assassination, and in some cases, sadly, corrupt activities, as well. Or even illegal activities.

So, again, there has to be improvement in that very important element of the security forces. With respect, I think the build phases actually are coming along well, but again that is something we are largely doing with our SERP and then with our AID comrades and others - U.K. DIFID and so on. But again, the question there is to get to something that is sustainable, that's enduring, that's self- sustaining over the long term. And then there is really a fourth phase to the clear hold and build.

There is a transition phase. And that's the phase when we begin to thin out. We begin to hand off tasks. And, of course, you don't merely need to do this so that ultimately we can reduce our forces in theater. You need to do it so that you can send your forces elsewhere, so that as we solidify a situation, say, in Nawa, you can focus more in Marja or Nadi Ali, or push out a bit farther to increase the security bubble for the people.

You don't have to go everywhere. This is not a nationwide effort in that regard, but you do have to be able to protect the population and the key lines of communication. Now, I've talked in recent days with Ambassador Eikenberry, with Ambassador Sedwell, the NATO senior civilian representative with Ambassador Holbrook, General Lute, the EU rep, and various Afghan officials, NATO secretary general, and a whole host of others about these kinds of issues.

And there's no question that we have got to do everything that we can to enable our Afghan partners to address the kinds of challenges that you have talked about right here. This all begins with a foundation of security, though. Because you cannot expect local police to survive in a fierce insurgent situation.

You can't expect local commerce to develop. You can't rebuild schools and so forth. And so that's obvious. But we have got to get the foundation and the security. I think that is doable, as the writer of that letter mentioned. And then we have clearly got to address the kinds of challenges that have made the hold and build phases so challenging, and then enable transition phases, as well.

WEBB: Well, I thank you for that. And I wish you the best. I still have a great number of concerns about the stability of the political environment.

CANDY CROWLEY, CNN ANCHOR: That is senator James Webb, who is voicing his concerns about what's going on in Afghanistan. You heard the term "clear hold build." that's the counterinsurgency plan, really, which is that you go into an area and clear it of the Taliban.

Certainly, the military has been very good at that. It is the holding that territory and then building, which is largely up to the Afghanis and to the Afghan government, where it has really fallen short. So General Petraeus talking about how the U.S. is speaking with the Karzai government, trying to get the build part, which is to say, government services into these areas.

A local government of some sort, trying to get that part to go faster. Because it's clearly a very difficult situation. We want to go to the other committee hearing that we have been following, and is that is the confirmation hearings of Elena Kagan to be the next Supreme Court justice. She is now being questioned by Senator John Kyl, the number two republican in the House. Here they are.


ELENA KAGAN, SUPREME COURT NOMINEE: That's an important thing.

SEN. JOHN KYL (R), ARIZONA: Yes. And I totally agree with you. It's not what Justice Marshall believed is important here. It's what you believe. What since you have written so glowingly about him, in fact, his vision of the court a thing of glory, I believe.

I'm having a hard time figuring out whether to the extent that you do and have written glowingly about him, whether you would tend to judge in cases more actively or more with interest in protecting the rights of those who are disadvantaged, for example, or as you have already expressed here, you would simply base it on the facts and the law and the Constitution.

KAGAN: The thing of glory, Senator Kyl, is that the court are open to all people and will listen respectfully and with attention to all claims. And at that point, the decision is what the law requires. And there may be differences as to what the law does require. But it's what the law requires. And that's what's -- what matters. I guess I would like to go back to -- I'll just give you one case, just to make sure --

KYL: Well, can I just keep moving on? I know the time -- well, we don't have a lot of time. If I could, please. Do you agree with the characterization by some of my colleagues that current court is too activist in supporting the position of corporations in big business?

KAGAN: Senator Kyl, I would not want to characterize the current court in any way. I hope one day to join it.

KYL: And they said you're not political, right? I appreciate it. Let me explore your judicial philosophy just a little bit more here. Whether you agree with the comment that Justice Marshall said, he said you do what you think is right, and then let the law catch up. Do you agree that that's the right way to approach judging?

KAGAN: The way I would judge is the way I told you, that you make sure that you give very respectful consideration to every person, and then determine what you think the Constitution or a statute, if the case is a statutory case, requires.

KYL: So you wouldn't have phrased your philosophy as Justice Marshall phrased is?

You know, I actually never heard Justice Marshall say that. I know another clerk in a different year wrote that she did. I will say, Justice Marshall was a man who spent many decades of his life fighting for the eradication of Jim Crow's segregation, and you can kind of see why he thought that you should work as hard as you can and eventually the law will catch up. And eventually the law did catch up in Brown v. Board of Education.

KYL: That's why it didn't seem to me to be out of character for him to have said that. Is there anything that you have written? Obviously, you haven't rendered decisions which would enable us to verify that this is your approach to judging. Can you think of anything you've written or if you would like to just supply this for the record if it doesn't come to you immediately, that would verify what you have said for us here, that would help us to confirm that what you have expressed to us today is, in fact, a view that you have expressed about judging?

KAGAN: Well, I don't think I've written anything about judging in that way. But I think that you can look to my life, that you can look to the way I interact with people. I mean, my deanship was a good example. The way I have acted as solicitor general, as well. The kind of consideration that I've given to different arguments. The kind of fairness that I've shown in making decisions. I think that those would all be, you know, appropriate things to look to, to try to get some understanding of this aspect of me. KYL: OK. Let me ask about some of the bench memos. I talked to you a little bit about that when you were in my office, as well. And obviously, we only have time to mention a few. But what I was suggesting is that your advice to your boss seemed to be not just pragmatic, but almost political in advising him either to -- to vote to take a case or not to take a case on Cert, for example, in Lonzaro v. Monmouth County. You write, quite honestly, I think although all of the lower court's decisions, is well intended, parts of it are ludicrous.

But you discouraged Justice Marshall from voting to go review the decision, because you were afraid that the court, and I'm quoting now, "might create some very bad law on abortion and/or prisoners' rights." Now, when deciding whether or not to take a case, shouldn't the focus be on whether the appellate or the appellate has the facts on their side, as opposed to whether justices, might in your view, make bad law?

KAGAN: Senator Kyl, let me step back a little bit and talk about what clerks did for Justice Marshall. We wrote -- Justice Marshall was not in what's called the Cert pool. We wrote probably thousands of memos over the course of a year about what cases the court should take and what cases the court should not take.

And when I was clerking for Justice Marshall, I was 27 years old, and Justice Marshall was an 80-year-old icon, a lion of the law. He had had firm views, he had strong views, he knew what he thought about a great many legal questions. He had been a judge for some fair amount of time. And the role of the clerks was pretty much to channel Justice Marshall.

To try to figure out whether Justice Marshall would want to take a case. Whether Justice Marshall would think that the case was an appropriate one for the court to take and to decide. And that's what I did, and I think that's what my co clerk's did, as well.

KYL: Well, do you think you would approach certain decisions that way if you were on the court?

KAGAN: I think that the most important factors in the Cert decision process, which is one I think I talked to Senator Cole about, maybe, are the ones I gave. First, most importantly, are the question of circuit conflicts that the court -- it's a very important responsibility of the court's to make sure that our law is uniform, and to resolve any conflicts that appear among the circuit courts.

Second, is the court should be available almost all the time, where a judicial decision invalidates a congressional statute that Congress is entitled to that kind of respect, to have the Supreme Court hear the case before a congressional statute is invalidated.

Third, you know, for some set of extremely important national interests. Extremely important for any number of reasons, it's a small category of cases, but it's an important one. And I think that those would be the considerations that I would primarily use, and those would -- that is the way I would make decisions. KYL: All right. There are -- some of these bench memos suggest other bases for making decisions. For example, in Cooper v. Kotarski -- and in assessing whether the court should take the case, you wrote, quote, it's even possible that the good guys might win on this issue. Now, that wouldn't be a very good basis on which to suggest taking a case, would it? And you were the good guys.

KAGAN: As I took a look at that memo, Senator Kyl, that was just a reference to the people whom I thought Justice Marshall would favor on the law. And that's all the reference was meant to suggest. Just the people whom I thought Justice Marshall would think had the better of the legal arguments.

KYL: Well, the reason I cited that one is there is a note while you were at the White House, you were asked whether certain -- or you asked a colleague, rather, whether certain organizations were on a list of organizations eligible for certain tax deductions. And is you referred to two of them.

One was the NRA. The other was the KKK. And you referred to them as, quote, bad guy orgs, I presume an abbreviation for organizations. So if you're presented a case involving, for example, the NRA, would you consider the NRA to be a bad guy org Deserving of defeat in the case?

KAGAN: Senator Kyl, I'm sure that that was not my reference. The notes that you're referring to are notes on a telephone call. Basically me jotting down things that were said to me. And I don't remember that conversation at all. But just the way I wrote telephone notes is not to quote myself.

KYL: OK. So you're -- your belief is that you were quoting someone else when you wrote --

KAGAN: Or paraphrasing somebody else. It was just telephone notes.

KYL: And it wasn't your terminology, it was somebody else's.

KAGAN: Or, as I said, a paraphrase. But it was -- you know, the way I write telephone notes is just to write down what I'm hearing.

KYL: You wouldn't in any event put the NRA in the same category as the KKK, I gather.

KAGAN: It would be a ludicrous comparison.

KYL: Thank you. In another case. In recommending the -- this is United States v. Kominski, in recommending the grant of Cert, and you noted that the solicitor general was, quote, for once on the side of the angels. Now, obviously, it's not whose side you're on.

KAGAN: I hope that's not my good friend, Charles free --

KYL: It is and was. How do you define who is on the side of the angels? KAGAN: You know, I didn't -- I have not seen that memo, Senator Kyl but I'm sure it was -- it was saying essentially the same thing, which was the solicitor general had the better of the legal arguments as Justice Marshall would understand.

KYL: For once. You said --

KAGAN: I'm sorry, Charles.

KYL: Well, have you -- in your time as SG, have you made any litigation decisions based on assessment of which position was side of the angels?

KAGAN: I have tried very hard, Senator Kyl, to take the cases and to make the decisions that are in the interests of my client, which is the United States government.

KYL: And it wouldn't be appropriate as a member of the Supreme Court to decide cases based on that either.

KAGAN: Senator Kyl, a Supreme Court justice needs to decide cases on his or her best of understanding.

KING: An interesting exchange between Elena Kagan, the president's Supreme Court nominee and John Kyl, senator, the conservative republican senator. In his questions, a number of interesting points to discuss around the table here with Candy Crowley, Jeff Toobin, Victoria Toensing, Gloria Borger, Donna Brazile, and Ed Rollins.

One, this is more color than anything. There were Clinton era documents in which he was listening to a conversation with the Justice Department colleague at one point, and she wrote down within the same inch on a piece of paper, NRA, KKK and Senator Kyl trying to say are you equating those. And she said that would be a ludicrous comparison. She gets that one out. But he also, Jeff Toobin, was asking her about her days as a clerk for Thurgood Marshall essentially trying to get at whether she shares his judicial philosophy.

JEFFREY TOOBIN, CNN CORRESPONDENT: And that's a very dicey area, because law clerks operate at two levels. They talk about what the judge should do, given the judge's background and also their advice. During the confirmation hearings for William Rehnquist, a memo surfaced about Brown v. Board of Education, which was pending while he was a law clerk to Justice Jackson.

And in a very sort of dismissive way, the young William Rehnquist dismissed the argument that Thurgood Marshall, much discussed today, made against school segregation. And he defended his memo much like Elena Kagan has defended her memos to Thurgood Marshall saying, no, no, I wasn't talking about my own views, I was talking about what Marshall's view of the case would be.


TOOBIN: Channeling. I think that is the exact same phrase.

TOENSING: That was really -- that's an interesting way to use your law clerks. I mean, it's -- but Marshall had been on the court for years and years and years. And so I guess that's all he wanted, was direct me in the right way and kind of figure out where I am.

It would have been an interesting question if she had been asked how she thinks she will utilize her law clerks. What kind of relationship, and what does she want her law clerks. I mean, that would tell you a lot about judicial philosophy.

KING: There's still time.


GLORIA BORGER, CNN CORRESPONDENT: But it does give you kind of a window, as Jeff was saying, into sort of the role of the law clerk. She said, you know, I was 27 years old at the time. And what we were doing was channeling him. And trying to point to things that he actually might be interested in dealing with. Because that was our -- that was our job. Now, maybe that job has changed today. But I tend to think probably not. I think not.

TOENSING: Every justice does it differently.

DONNA BRAZILE, CNN CONTRIBUTOR: But Justice Marshall was a giant. He was not just a hero to the civil rights community, but he was a great lawyer. And someone who I think often wanted his law clerks to think out the box and to bring issues to him that he could personally look at before deciding some of these major cases.

CROWLEY: Well, it's clear what was bothering the republicans was the quote, which was essentially not quite this, from Thurgood Marshall. You know, you -- you follow the way you want to go, and you hope the law catches up, was essentially that. And I think that's what Kyl was getting to. Like, is that what you think you ought to do? And she basically said no, I think can we ought to look at the law and follow the law as best you can.

ED ROLLINS, CNN CONTRIBUTOR: I don't think any clerk ever guided Thurgood Marshall. At least what I've read of him. He was a giant and he was 80 years old at this point of his life, and she was a young -- obviously a very bright woman. But it was not like he was sitting there waiting for opinions to be written by his staff. I think he pushed that court as far as he could, at least my recollection.

TOOBIN: In her solicitor general testimony, her confirmation testimony for her current job, she was asked about one of these memos, and she said, I was just a 27-year-old pip-squeak when I was writing these. And I think that's an accurate description of most law clerks. They think they are more important than they are. But it's really the justices that make them important.

ROLLINS: They are after they leave.

TOOBIN: Exactly. BORGER: And when you're 27 years old, it's hard to actually think that someday one of your memos is going to be thrown back at you when you sit before the Senate Judiciary Committee to be confirmed for the high court.

TOOBIN: They're all such pompous jerks they all think they should be on the Supreme Court someday.

CROWLEY: On that note, we want to go back to the hearing room. Not to the podium just now, but to our Senior Congressional Correspondent, Dana Bash.

Dana, has anything changed just in terms of texture of the hearings? You've been watching them from opening word up until now. What has caught your attention?

DANA BASH, CNN CORRESPONDENT: Well, first, just on substance, I want to point out what John did just at the beginning of this conversation, that what Elena Kagan revealed or maybe more to the point, clarified, was in the memo that she had scribbled notes, KKK, NRA, as a bad organization. That has been flying around conservative circles as a ah-ha moment.

And when they saw these documents I think about a week or two weeks ago when they were released by the Clinton library as proof that she is just a liberal, what she told us just now, what she told Senator Kyl is that she was taking notes on somebody else's conversation.

So if that's the case, that certainly appears to deflate that particular argument that conservatives have been making. But just on a color note, what struck me, Candy, has been the way Elena Kagan has tried to use a sense of humor to really disarm the Senators, particularly republicans. And Jeff knows her, so this may not seem a surprise to him.

But just for example, when John Kyl came out after the break, nobody was in the room and he said I guess nobody wants to hear my questions and without missing a beat, she said maybe nobody wants to hear my answers. And another time, Senator Hatch was talking about the fact that he and Senator Leahy were having a little disagreement.

They're kind of like an old married couple, and I say this respectfully and they would probably agree, and Elena Kagan again without missing a beat saying, go ahead, it takes the spotlight off of me.

I don't remember seeing that certainly from recent confirmation hearings at this level, not from Sonia Sotomayor, and at least at the beginning, you know, as these nominees are getting comfortable. But it just seems to me the kind of charm she has.

KING: I want to jump in real quick, because Senator Kyl is now asking her about the controversial Arizona immigration law.

KYL: I have a license to someone who is violating the law. KAGAN: Yes, we definitely took a different position, Senator Kyl, and the reason we did is this statute clearly would prevent a state from saying anybody who hires an undocumented or illegal alien would be fined $25. The statute clearly prevents a state from saying that. From imposing a penalty on an employer who hires an illegal alien.

The statute clearly prevents a state from imposing a penalty like that. Then surely the statute also prevents a state from imposing a penalty which is the withdrawal of any of the --

KYL: Well, that's the argument that you make. But the federal government could impose a fine, but the federal government doesn't get into the licensing of businesses. That's a state activity. So I could argue just as easily, and I'm sure the court will consider the argument, that, of course, that's the kind of thing that states can do. And so just as a state can grant a license, it could also take a license away if a business violated the law.

We'll talk a little bit more about this, I guess, in the second round. But the reason that I raise this is that my guess is, and I would ask you whether you agree, that without the SG having taken the position that you did, that it's much less likely that the court would have taken a case. Would you agree with that?

KAGAN: You know, I don't know that, Senator Kyl. Sometimes they listen to us, and sometimes they don't. Sometimes we tell them in no uncertain terms, this is a terrible case to take, and they take it anyway.

KYL: But the stats are 80 percent. So that's a pretty good percentage. When you ask them to take a case and they do.

PATRICK LEAHY: Was this a case where the Supreme Court asked solicitor general to file a brief?

KAGAN: This was a case. And those were the -- the 80 percent statistics, I think is when the government files its own Cert petition. I think that we do much less well with the court when we just -- when we answer the court's requests for, you know, our advice on whether to take it.

KYL: When we have the next round, I'll have the exact statistic on it.

KAGAN: I hope we do well.

KYL: I think you do very well. Senator Feingold, and then when Senator Feingold finishes, we will -- we will break. And I would reiterate to senators, and Senator Kyl, you're in the leadership department, you already know this. But apparently the vote is at 2:15. I will vote at the desk and come back. And I will recognize the next person in line to be on the republican side. Senator Feingold.

SEN. RUSS FEINGOLD (D-WI): Thank you, Mr. Chairman. And thank you again. I guess I would like to start by picking up on your discussion with Senator Hatch about the Citizens' United Decision. Senator Hatch talked about a book with a single mention of a candidate, and pamphlets designed by small S-chapter corporations. But, of course, as you indicated already, what congress addressed in the McCain Feingold Bill was TV election advertising right before the election, paid for out of the treasury funds of unions and corporations, both profit and nonprofit.

So was the Supreme Court that instead reached out and asked for re-argument, and called into question a 100-year-old statute that prohibited corporations more generally from spending money on elections. I just to clarify this. So let me ask you, wasn't it highly unusual, if not unprecedented, for the court to do this?

KAGAN: Senator Feingold, the United States government in the case did urge the court not to decide the case on the grounds that it did. And you know, it's obviously unusual whenever the court reverses a precedent in this way. The court thought it had grounds to do so. But it is an unusual action, yes.

FEINGOLD: And wasn't it unusual how they got to the point where they could make that decision? Based on the facts?

KAGAN: Senator Feingold --

FEINGOLD: It was unusual, wasn't it?

KAGAN: Senator Feingold, You know, certainly the case, as it came to the court, did not precisely address -- did not address the question that the court ended up deciding.

FEINGOLD: Thank you. And the reason that many people, including the president and many members of the committee, were so outraged by the decision, was not simply because the Court reversed its 2003 decision upholding the issue and provisions of McCain/Feingold Bill, but it also reached out to decide an issue that was not raised by the case in hand and overturned a set (ph) of law dating back more than a century. Did it surprise you that the court's decision caused such an uproar? KAGAN: Oh, I don't know, Senator Feingold. I'm not -- I'm not, you know, an expert in public reaction to things, and I don't think that the court should appropriately consider the public reaction in that -- in that sense.

FEINGOLD: Do you take note of the public reaction to Supreme Court decisions?

KAGAN: Senator Feingold, I read the same newspapers that everybody else does.

FEINGOLD: But you're not willing to comment on whether this was a greater reaction than another --

KAGAN: I don't know, Senator Feingold.

FEINGOLD: All right. Let me go to national security issues that you already discussed a bit with Senator Feinstein, and I think its --

JOHN KING, CNN ANCHOR: You're listening to Democratic Senator Russell Feingold of Wisconsin questioning Elena Kagan, the president's Supreme Court nominee. He started on a campaign finance and First Amendment case. He's moving on now to an issue he cares deeply about, executive power. Largely as it applies in terror cases.

We're going to take a quick break. Before we do, I want to say, when we tossed back to the hearing earlier, I said that Senator Jon Kyl of Arizona was questioning Elena Kagan about the new Arizona immigration law. In fact, he was questions her about an existing law that involves sanctioning employers who hire illegal immigrants, not the more recent Arizona immigration law.

We're continuing to track two critical confirmation hearings on Capitol Hill today. Elena Kagan, you see it playing out right now. General David Petraeus also taking questions from the Senate Armed Services Committee. Our continuing coverage throughout the day. Please stay with us.


CANDY CROWLEY, CNN ANCHOR: That is the U.S. Capitol, where two hearings are taking place. Actually, really important hearings. It doesn't get much more important than the war in Afghanistan and the U.S. Supreme Court. Going on simultaneously. You see on the right hand of your screen General Petraeus, who we expect will be the next commander of U.S. and NATO forces in Afghanistan.

The left of your screen, that is the other nominee, Elena Kagan, whom we still expect will be seated on the Supreme Court without much further ado, although these hearings, at least the Kagan hearings, will go on much of the week. Lots of other testimony will be heard later in the week. We do expect the Petraeus hearings will wrap-up today, actually.

So let's start with the Kagan hearings. Have we -- has any headway been made here in terms of our knowledge of this nominee?

ED ROLLINS, CNN CONTRIBUTOR: I don't believe so. I mean I think what you've seen is Republicans push the -- their message a little bit to where they were and got a little more indignant as time has gone on, but they haven't broken any new ground and they really haven't drawn any blood. My sense is that she has not made as strong of an impression as many thought she might, but that doesn't mean she's not going to be on the court.

DONNA BRAZILE, CNN CONTRIBUTOR: I think that she's been really forthcoming.


BRAZILE: Look, she admitted today that she wanted to see some cameras in the courtroom. She had no problems on that. She, I thought, gave us a little bit of her own judicial philosophy, because the Republicans are really getting into some areas that often these nominees try to skirt. And she went really there in terms of her own constitutional interpretation of the Supreme Court case and Citizens United, the First Amendment. So I think this has been a good hearing for her so far.

CROWLEY: In fact, Gloria, I think the -- I know the Republicans went into this, many of them, looking at a teachable moment, as they'd like to say.


CROWLEY: Emotionally, it's a teachable moment to their main constituencies, whom they expect to show up in November about, here's what's at stake.


CROWLEY: Have they made headway there?

BORGER: Well, I think Senator Sessions has been particularly aggressive with Elena Kagan. And I think -- it was interesting that Senator Kyl of Arizona, just a few moments ago, asked her whether you think, quote, "the court is too activist on behalf of big business." That's called asking a question you know that she is not going to answer, but letting everyone know that that's the Democratic line. And, of course, she wouldn't answer it.

She had a wonderful answer to it, Candy. She said, I would not want to characterize the current court in any way. I hope one day to join it. So she kind of was -- she's been a little disarming sometimes in her answers, very colloquial, but I don't think we've learned anything that we didn't already know.

CROWLEY: Victoria.

VICTORIA TOENSING, FORMER JUSTICE DEPARTMENT ATTORNEY: Well, of course, we -- I -- we haven't mentioned that she has sat for days in front of staff, who have all put on, you know, I'm now senator so-and- so and asked her these questions. So this is not like she hasn't heard these things before. And if she's come up with the wrong answers, they've said, well, why don't you say this, why don't you say that.

So, certain things she had to admit because they just don't ring well when you practiced it in front of people and they say, oh, I think you better just come all out for saying yes this is how I feel about "don't ask, don't tell." So this is all rehearsed, and she's doing a fine job at it.

KING: Have we seen -- and, Jeff, come on in. Jeff Toobin. We're on live television. You're allowed to walk into the room. It happens. We take little breaks. It's quite all right.

Have we seen -- the thesis at the White House is, the ideological balance of the court is not going to shift. You have a Democratic president replacing somebody who is left of center in John Paul Stevens. Maybe not how they thought he would start out, but that's certainly where he ended. Their argument is, this is this fiery intelligent, incredibly bright woman who's also a consensus builder. Who, if you get her on the court, on a tough case, maybe she's the one who can take justice Anthony Kennedy and pull him across over to left. Have we seen that?

Now to be fair to her, you go into these hearings with restraints. You can't talk about certain things. You almost don't want to get involved in too much of a back and forth with the senators, because the more you talk, the more likely you are to make a mistake. But have we seen that?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: You know, the mythology of the Supreme Court is that, you know, justices can tell each other and influence each other a great deal. You know, Anthony Kennedy's been a Supreme Court justice for 23 years. He doesn't need Elena Kagan to tell him what the Constitution says.

UNIDENTIFIED FEMALE: A new pip-squeak.

TOOBIN: A relative pip-squeak, at this point. But, you know, over a long career, people's personalities matter. And there are justices who keep to themselves, a Ruth Bader Ginsburg, a Clarence Thomas, and there are justices who circulate, William Brennen being the most famous. Sandra Day O'Connor certainly had a great deal of influence because she occupied such an important part of the court. I think Elena Kagan's personality is very much suited towards someone who circulates. But whether she will, in fact, be someone who can influences others, I think it's very hard to predict.

TOENSING: But the -- the personality you see here, the joking back and forth, the repartee that she does a little of, is the same personality she's used in arguing before the Supreme Court. There was a colossal moment that we lawyers talk about where she was asked a question by Justice Scalia in an argument and she came back with, well, what do you think of this? And it sort of took Justice Scalia aback, and Chief Justice Roberts said, uh, we ask the questions here, not you. So she's always had sort of this relaxed, hey, I'm here talking to you.

ROLLINS: There's one lesson -- there's one lesson we've learned by the side by side. A general with four stars on his shoulders and ribbons from here to here is always a more impressive witness no matter what he says --

CROWLEY: Exactly. Well, and, you know, and the thing is that the missions are different here. Even, John, as we're trying to figure out who Elena Kagan is, we don't actually need to figure out who General David Petraeus is. We've got a pretty good grip on that, as do those senators. They're trying to figure out what this war is about.

KING: I cannot remember in my lifetime, certainly in my 26 years doing this for a living, a general who has had this stature. Colin Powell had it in the first Gulf war when he was the chairman of the Joint Chiefs, though. As Ed noted earlier, I don't think we were on television at the time, more of a political. General Schwartcoff (ph) did after the swift victory there, of course. But General Petraeus has a unique place in our country right now, in part because many of those now praising him opposed him when he came up with -- he was the architect of the Iraq surge policy. A lot of Democrats, including the current president and vice president of the United States and the secretary of state of the United States thought it would be a failure. And now this president is investing so much in this general, saying, sir, I need you to go help me. The policy -- president won't concede this publicly, but privately everyone in the administration will tell you the policy is in a bit of trouble and they need not only a new commander, because of the disrespectful conduct, at a minimum, of General McChrystal, but because of the problems on the ground.

TOENSING: But the president cannot fire Petraeus. He just cannot because he has fired two --

CROWLEY: Well, except for you would have thought the same about McChrystal, frankly.

TOENSING: Well, yes, OK. But now he's got the envelope --

CROWLEY: He put McChrystal in place, and it's McChrystal's strategy that he put in place, by and large. You can -- you get to, if they go way over the line, as McChrystal did.

ROLLINS: And it's a roll of the dice for Petraeus too. Petraeus is a historic figure right today. Republicans were talking about it, why don't we draft him to run for president? The first modern president or general that we've seen that (ph). And I think the bottom line is, this is -- as you saw today, there's some hesitancy. This is a very -- he knows the battle ahead is a very difficult -- this was not an overconfident, cocky guy standing there, give me the baton, I'm going to go bring victory here. He knows how difficult this task is.

KING: But one of the things they complain -- that's probably a strong word -- but they grumble about at the Pentagon, Donna, and even as the McChrystal thing was -- the change of command was taking place, which everyone -- most people thought the president needed to do, even though Gates was a little torn about a possible vacuum in leadership. You don't get that with Petraeus who can step in -- is that they wished the president would explain what Ed just said to the American people more often, because it is such a difficult mission.

And one of the complaints about General McChrystal was, he did this big "Rolling Stone" interview, which got him in all the hot water, but he wasn't out every day or every week explaining the mission to keep in touch with the American people, to keep in touch with his own troops. It's hard for this president, isn't it, because much of his own party doesn't like this mission?

BRAZILE: Well, you know, John, let's be very fair to the president, because it's rare that he catches any breaks. For the last 72 days, we've been really focused on the oil spill in the Gulf, and rightfully so. And I think the president has tried over and over again to get his back on economy, get his back on some of the other pressing issues facing this country. But the truth is, is that he put a lot of trust in McChrystal to carry out the mission that General McChrystal and General Petraeus helped to put together.

Now, going forward, especially in light of what has happened with McChrystal and the mission itself, we're going to have to pay more attention to what's going on in Afghanistan. Are we meeting our targets? Are we meeting our benchmarks? How many, you know, policemen have been recruited? How many villages have been, you know, secured? Back to what Candy said, can we hold these places once we've cleared them of the Taliban?

KING: And to be fair to the president, one of the things, using Donna's words, one of the things we have learned in this administration is president's don't get to pick their challenges. The president has an agenda that he laid out in the campaign, but then things like the oil spill, other big events come along. This president has a lot on his plate right now, including these two big confirmation hearings today that we will continue to track when our coverage continues in just a moment.


CROWLEY: And, of course, there's Capitol Hill. I can't imagine there is anyone that doesn't recognize that building, at least here in the United States. Two very important hearings going on right now, Elena Kagan to be the next Supreme Court justice, General David Petraeus to be the commander in Afghanistan.

That's what we're watching. But down in Atlanta, Tony Harris is watching the rest of the day's news.


TONY HARRIS, CNN ANCHOR: (INAUDIBLE) both agree the economy is strengthening and in recovery the president urged Congress to finish work on the compromised financial reform bill worked out last week.


BARACK OBAMA, PRESIDENT OF THE UNITED STATES: Not only will completion of the financial regulatory reform bill provide some certainty to the markets about how we are going to prevent a crisis like this from happening again, but it also ensures that consumers are going to be protected likes never before on all the things day to day that involve interactions with the financial system. From credit card debt, to mortgages, consumers are going to have the kinds of protections that they have not had before.


HARRIS: The president and Bernanke acknowledged the recovery faces head winds. A new survey shows consumer confidence tumbled in June, fueling new skittishness on Wall Street today.

Checking other top stories for you.

Seventy-one days now of oil gushing into the Gulf. Vice President Biden is in the disaster zone. He is visiting the incident command center in New Orleans. He will also travel to the Florida panhandle.

Authorities are closely watching Tropical Storm Alex right now. The system is now moving away from the area impacted by the oil. Forecasters say Alex is approaching hurricane strength.

President Obama has been talking energy. He met last hour with the bipartisan group of senators to discuss passing comprehensive energy and climate legislation this year.

Google blinks in its censorship showdown with China. The Internet giant says it will no longer redistrict Chinese users to a uncensored Hong Kong search engine. Instead, users will go to Google's China home page, where a link is available for the uncensored site. Google says it had to make the change because China was threatening to kick it out of the country.

Let's take a quick break and we'll be back to Candy Crowley and The Best Political Team on Television in Washington, D.C.


KING: Elena Kagan still taking questions from the Senate Judiciary Committee. She's been in that chair since 9:00 a.m. this morning. They will take a lunch break soon. But Elena Kagan, the president's Supreme Court nominee. And as she takes questions, let's go back and continue our conversation in the room here.

There is a debate raging, as we watch these hearings and as we discuss and analyze them, the White House is saying she is meeting the Kagan standard. Back when she was an academics, she wrote that these hearings are sometimes horrible, they're vapid because the nominees aren't specific about their views. The White House has already put out talking points, saying she's meeting that standard, she's talking about her views on important issues. The Republicans are saying, what a profound disappointment, she's just being wrote (ph) talking points. She won't tell us who she is. Who's right?

CROWLEY: Well, this is a shocking turn of events --

KING: Shocking, isn't it, Candy?

CROWLEY: That the White House and the Republicans don't agree on how well the hearings are going.

KING: The White House and the Republicans disagreeing.

TOENSING: They're each doing -- they're each doing what they're supposed to do. I mean wouldn't you be surprised if the White House didn't send out that message?

ROLLINS: I would argue it's what they shouldn't be doing. I would argue the White House should not be out doing spin on a justice -- or a potential justice who's sitting up here doing her hearings. I mean, I think she has to make her own case. And I think, to a certain extent, to play this game like we always do, Axelrod versus whoever Mitch McConnell's guy is, is demeaning to the whole process. TOOBIN: But to -- you know -- the --

BORGER: Well, here's their -- here's their memo. Elena Kagan's open and forthcoming testimony. What a shock. And they say, of course, that she adhered to her own -- to her own standard.

TOOBIN: But the rules have changed so much. I mean so many obvious questions don't even get asked because you know she won't answer them. For example, do you think Roe vs. Wade is correctly decided? I think that's very important to know. I think all 18 senators have to answer that question when they run for office.

But the one person sitting in that room who has some authority over whether Roe v Wade stands as good law is somehow exempt from having to answer that question. I think it's a ridiculous set of rules that we have set up, but those are the rules for the last several years and, you know, she has abided by them.

BORGER: But even the presidents say, we don't have litmus tests. So even the president wouldn't ask her that question, right?

TOOBIN: That's right. But it's important.

KING: To that point, Ed Rollins, you used to help Ronald Reagan pick judges. How did you ask that question without asking that question?

ROLLINS: We defined (ph), do you believe the Constitution as it is written perfectly? And if they said yes, that was -- we did not believe in a living Constitution. But I think the whole concept of our group was that we're going to find young conservatives who would serve on the bench for a long time.

KING: And this president's trying to find a young, whether you want to call them liberals or progressives --

ROLLINS: I call them liberals.

KING: To that point, second Supreme Court nomination in sixteen months in office. He's had a number of nominations to lower federal judgeships. You disagree with this president, Victoria. But he has an enormous opportunity to reshape the federal judiciary.

TOENSING: He does. And I think it's interesting that he chose Elena Kagan this time, while he still had the great majority that he does in the Senate, as opposed to Merrick Garland, who I think is a really fine judge on the D.C. circuit. And he may be reserving that if he gets another stab at a justice in his last two years, because with the vote closer in the Senate, Merit Garland would be the person. He wouldn't want to waist a Merit Garland in this kind of situation where he's got so many votes to spare.

We talk about, are they doing the right thing? Well, it really doesn't matter in the end, does it, because he's got his 59 votes that he's got for sure. Not one Democrat is going to say no. TOOBIN: Bill Clinton also had two appointments in his first two years. And his first appointment went to Ruth Bader Ginsburg, who was 60 years old when she was nominated. And I don't think we are ever going to see another 60-year-old nominee. I think the competition for the court is so intense, and it is so political, that the opportunity to have an extra decade of service when a president can only serve eight years him or herself, it just makes a huge difference.

CROWLEY: In the end, does it -- you know, sort of looking at this, we all talk about, OK, this is interesting. But the fact is, the mix on the courts, that 5-4, is going to stay the same. So you're going to see pretty much the same kinds of rulings. Who on the Republican side -- I mean is there a chance -- I mean if it was going to be an Obama court, one of those conservatives would have to leave.

TOOBIN: Absolutely. And it all, frankly, comes down to their health. Because none of them are going to voluntarily hand over a seat to Barack Obama to change the ideological balance. But we are starting to get to a time, Antonin Scalia is 76 years old, Anthony Kennedy is 75 years old, Clarence Thomas, who was so young when he was appointed, is now over 60. So, you know, the Democrats can control the Supreme Court by doing one thing, winning presidential elections. Other than that, it's all just conversation.

ROLLINS: My message to the liberals though is that any man who makes 65 today can live to be 100.

TOOBIN: I certainly hope that's true.


BRAZILE: And the message to the liberals is pass some health care (INAUDIBLE).


BORGER: But (INAUDIBLE) years is not a bad run.

TOENSING: But the message to every young clerk is, watch out for those memos you're writing for your bosses, because, you know, you might be 40 years old and somebody will think of you.

KING: Elena Kagan just turned 50 this spring. We should put that on the record as we have this conversation. So she could serve for 30 years or more.

Is this confirmation hearing any different than the Sotomayor hearing just a year ago? And I ask the question in the context, last year was an odd-numbered year. This is an even numbered year. We are closer to the election, therefore both Democrats and Republicans perhaps are looking to make points that go beyond Elena Kagan's qualifications.

BORGER: You know, I think it's interesting because, oddly enough, Sotomayor had more controversy. The wise Latina comment, we all recall, and we went over it -- over and over and over again in the hearings. Yet I think in certain ways the hearings were -- Republicans were a little bit more deferential to her. I think Sessions, in particular, has been very striking and very tough, particularly on the Harvard law military recruiting issue. And that may be because we're heading towards a midterm election.

CROWLEY: Going to call a time out here real quick. We're going to take a break. But we'll be back.