Transcript: Joint Chiefs of Staff Chairman Adm. Mike Mullen

Mike Mullen

ABC'S "THIS WEEK WITH GEORGE STEPHANOPOULOS" MAY 24, 2009 SPEAKERS: GEORGE STEPHANOPOULOS, HOST ADM. MIKE MULLEN (USN), CHAIRMAN, JOINT CHIEFS OF STAFF

(BEGIN VIDEOTAPE)

STEPHANOPOULOS (voice-over): Good morning, and welcome to THIS WEEK. On this Memorial Day weekend, our exclusive headliner, the military's top man.

MULLEN: I have actually been supportive of closing Guantanamo.

They want Afghanistan back. We can't let them or their al Qaeda cohorts have it.

That Iran getting a nuclear weapon is calamitous for the region and for the world.

STEPHANOPOULOS: The chairman of the Joint Chiefs, Admiral Mike Mullen, only on THIS WEEK.

Then...

DICK CHENEY, FORMER VICE PRESIDENT: In the fight against terrorism, there is no middle ground and half measures keep you half exposed.

PRESIDENT BARACK OBAMA: We must leave these methods where they belong, in the past. They are not who we are. And they are not America.

STEPHANOPOULOS: Who won the great debate? Who is next for the Supreme Court? That and the rest of the week's politics on our roundtable with George Will, Donna Brazile, David Brooks of The New York Times, and E.J. Dionne of The Washington Post.

And as always, the "Sunday Funnies."

JAY LENO, HOST, "THE TONIGHT SHOW": Hey, President Obama has found a way to quickly close Guantanamo Bay. He's going to turn it into a Pontiac dealership. Yes.

(LAUGHTER)

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

(END VIDEOTAPE)

STEPHANOPOULOS: Hello, again, I hope you're enjoying this Memorial Day weekend. We're going to begin today with the president's top military adviser, Admiral Mike Mullen, the chairman of the Joint Chiefs of Staff.

Welcome to THIS WEEK.

MULLEN: Thank you, George.

STEPHANOPOULOS: And we have a lot to cover today, but I want to begin with the debate that really consumed Washington this week. Guantanamo Bay, whether to close it, how to close it, what to do with the detainees. Weigh in from the perspective of the U.S. military.

MULLEN: Well, I've advocating for a long time now that it needs to be closed. President Obama made a decision very early after his Inauguration to do that by next January. And we're all working very hard to meet that deadline.

It focuses on very difficult issues of what you do with the detainees who are there. There are some really bad people there. And so figuring out how we're going to keep them where they need to be, keep them off the battlefield, as well as close Gitmo itself is a real challenge.

STEPHANOPOULOS: Let's talk about keeping them off the battlefield, because a report -- a Pentagon report was released this week -- or leaked this week that said about 14 percent of the Guantanamo detainees have gone back to the battlefield.

I'm trying to puzzle that out. Does that mean it was a mistake to let them go? Or that somehow they were radicalized inside Guantanamo? That something happened to them there?

MULLEN: Well, there has been an increasing number of those who have returned to the battlefield over the last year or two. There has been hundreds and hundreds who have actually been released both from Guantanamo over time as well as other detention facilities in Iraq and in Afghanistan.

And I think individuals make their best judgment about where they are. And certainly from a military perspective, my advice is to focus heavily on making sure that these individuals don't return.

It has gone up in recent weeks -- or I'm sorry, in recent months, from a single digit number of 5 or 6 percent to the low teens, as far as my understanding of those who have returned.

STEPHANOPOULOS: For those detainees that have to come to the United States eventually, if indeed they do, would the best option be for them to be held in military prisons here in the United States?

MULLEN: We're working hard now to figure out what the options are and what the best one would be. And that really is a decision the president is going to have to make, certainly in meeting this deadline of what we do.

But I just want to reemphasize how -- you know, the challenge associated with that, the need to really keep the bad guys off the battlefield, and to properly detain these individuals as determined in this process.

STEPHANOPOULOS: But that is everybody's big concern, at least it was expressed in the Congress this week that somehow detainees would come to the United States and they would pose a danger. And the FBI director, Robert Mueller, said this week they could pose a risk.

MULLEN: Sure. I listened to all of that and I thought Secretary Gates also captured it well. We have terrorists in jail right now, have had for some time. They're in supermax prisons. And they don't pose a threat. So that's certainly an option. But again, it's not one for me to decide. STEPHANOPOULOS: The Republican leader of the Senate was quoted in The New York Times today saying there's actually a very slim possibility now that the Congress will allow Guantanamo to close.

If he's right, and Guantanamo doesn't close, what would that mean for your military mission?

MULLEN: Well, the concern I've had about Guantanamo in these wars is it has been a symbol, and one which has been a recruiting symbol for those extremists and jihadists who would fight us. So and I think that centers -- you know, that's the heart of the concern for Guantanamo's continued existence, in which I spoke to a few years ago, the need to close it.

STEPHANOPOULOS: You know, former Vice President Cheney took on that debate this week. He was speaking about Guantanamo, but also specifically the enhanced interrogation techniques, and he took on this issue of what he called the recruitment tool mantra. Take a listen.

(BEGIN VIDEO CLIP)

CHENEY: This recruitment tool theory has become something of a mantra lately, including from the president himself. And after a familiar fashion, it excuses the violent and blames America for the evil that others do. It's another version of that same old refrain from the left, we brought it on ourselves.

(END VIDEO CLIP)

STEPHANOPOULOS: He's taking issue with your judgment.

MULLEN: Well, again, it's my judgment that it has had an impact. And it's time to move on. And the difficulty of doing that is captured in the complexity of the issues. But I think we need to.

STEPHANOPOULOS: Let me move on to the issue of Iran. You said that Iran is on a path to building nuclear weapons. But the 2007 National Intelligence Estimate concluded with a high degree of confidence that Iran had halted its nuclear weapons programs. So do you believe that intelligence estimate is outdated? Is it no longer accurate?

MULLEN: Well, I believe then and I still believe that Iran's strategic objective is to achieve nuclear weapons, and that that path continues. Their leadership is committed to it. They conducted a missile test this last week that was successful, which continues to improve their missile delivery system and capability. Their intent seems very clear to me, and I'm one who believes if they achieve that objective, that it is incredibly destabilizing for the region. And I think eventually for the world.

STEPHANOPOULOS: You said it's their intent. But do you believe they've restarted their actual nuclear weapons program?

MULLEN: I haven't seen -- or I wouldn't speak to any details about what they are doing with respect to that. Although, I remain concerned that while intelligence estimates focus on what we know, I'm concerned about what Iran might be doing that we don't know.

STEPHANOPOULOS: Let me also press the question of their strategic intent. "Newsweek" has a cover story out. Let me show you. It says that everything you think you know about Iran is wrong. And one of the points that Fareed Zakaria makes in "Newsweek" is he points out on several occasions over the last several years, Iran's leaders have said they're not interested in having nuclear weapons. They have said that nuclear weapons are immoral. The Supreme Leader, Ayatollah Khamenei actually issued a fatwah saying that these weapons are, indeed, immoral.

And I guess, it's possible they could just be lying. But it does seem odd that a country that the Islamic Republic that bases its legitimacy on being a guardian of Islam that would develop weapons that it considers immoral. That would seem to undercut their own legitimacy.

MULLEN: Well, I think that speaks to the importance of the dialogue that President Obama has stated he wants to initiate and to really wring out, whether that's how the Supreme Leader feels. Certainly from what I've seen, Iran on a path to developing nuclear weapons.

STEPHANOPOULOS: So you don't believe it? That they don't want nuclear weapons.

MULLEN: At this point no.

STEPHANOPOULOS: And the chief of staff to Israel's defense minister, General Michael Herzog, has said that Iran could actually have its first nuclear weapon by the end of 2010 or the beginning of 2011. Do you agree with that?

MULLEN: Well, I think you make certain assumptions about what they can do. Most of us believe that it's one to three years, depending on assumptions about where they are right now. But they are moving closer, clearly, and they continue to do that. And if you believe their strategic intent, as I do, and as certainly my Israeli counterpart does, that's the principle concern.

STEPHANOPOULOS: And you just said that you believe that a nuclear Iran would be calamitous for the region. But last year, Sy Hersh in the "New Yorker" reported that you pushed back very hard against any notion of a military strike during President Bush's administration. And you've spoken publicly about the unintended consequences of a military strike by Israel. So what worries you more? A nuclear Iran or war with Iran?

MULLEN: Well, they both worry me a lot. And I think the unintended consequences of a strike against Iran right now would be incredibly serious. As well as the unintended consequences of their achieving a nuclear weapon.

And so that's why this engagement in dialogue is so important. I think we should do that with all options on the table. As we approach them.

And so that leaves a pretty narrow space in which to achieve a successful dialogue and a successful outcome, which from my perspective means they don't end up with nuclear weapons.

STEPHANOPOULOS: They don't end up with nuclear weapons, but could they have as Japan does a full nuclear fuel cycle program that's fully inspected?

MULLEN: I think that's certainly a possibility and this isn't, at least, from my perspective, from the military perspective, this isn't about them having the ability to produce nuclear power. It's about their desire and their goal to have a nuclear weapon.

STEPHANOPOULOS: Finally, if it comes to this, do you believe it's possible to take out Iran's program, militarily at an acceptable cost?

MULLEN: I won't speculate on what we can and can't do. Again, I put that in the category of my very strong preference is to not be put in a position where we -- where someone -- where Iran is struck in terms of taking out its nuclear capability.

STEPHANOPOULOS: OK. Let me move to Iraq then. U.S. combat forces are scheduled to complete their pullout from Iraqi cities by June 30th. But in recent weeks, we've seen an uptick again in the violence. Does that rise in violence mean that the deadline for pulling American forces out of the cities might not be met?

MULLEN: Oh, I think we're still very much on a track in terms of pulling the forces out of the cities, which is the end of next month. We're on track to decrease the number of troops down to 35,000 to 50,000 in August of 2010.

We've had an uptick in violence, but the overall violence levels are at the 2003 levels. It's still fragile. There's an awful lot of political positioning and political debate that's going on right now, and I think that in great part becomes the essence of how Iraq moves forward.

I'm actually positive about what the Iraqi security forces have done, their army and their police in terms of providing for their own security. They've improved dramatically.

So the path, I think, is still the right path. These ticks, upticks in violence are going to occur. We said that going in, even into -- as we talked about coming down in force. So we just have to, we have to constantly keep an eye on that.

Al Qaida is still active. They're not gone. They're very much...

STEPHANOPOULOS: Al Qaida in Iraq.

MULLEN: Al Qaida in Iraq is very much diminished, but they still have potential to create these kinds of incidents. STEPHANOPOULOS: And the president has said that his overall goal is to have all forces out of Iraq by 2011.

(BEGIN VIDEO CLIP)

OBAMA: Under the status of forces agreement with the Iraqi government, I intend to remove all U.S. troops from Iraq by the end of 2011.

(END VIDEO CLIP)

STEPHANOPOULOS: That is pretty unequivocal. Yet I was reading the proceedings of the U.S. Naval Institute. They had an interview with Tom Ricks, the U.S. military historian, where he says he worries that the president is being wildly over-optimistic. He says we may be only halfway through the war. And he talks about a conversation he had with the commanding general in Iraq, General Ray Odierno, who told him he'd like to see 35,000 troops in Iraq in 2015. Is that what you expect, as well?

MULLEN: Well, certainly the direction from the president and the status of forces agreement that we have with Iraq right now is that we will have all troops out of there by the end of 2011. And that's what we're planning on right now.

STEPHANOPOULOS: But can Iraq be safe with all U.S. troops out of Iraq in 2007 (sic)?

MULLEN: Well, we're on a good path now. And we'll have to see. I mean, the next 12 to 18 months are really critical there in that regard, and I think that answering that question will be much clearer given that timeframe.

The other thing is, we have -- this is a long-term relationship we want with Iraq, and Iraq has stated they want with the United States. And part of that is the possibility that forces could remain there longer. But that's up to the Iraqi people and the Iraqi government to initiate discussions along those lines, and that hasn't happened yet.

STEPHANOPOULOS: It's up to the Iraqi people and the Iraqi government. It's up to the president, of course, as well. But from a military perspective, General Odierno says that he would like to see 35,000 troops in 2015. Is that what you all believe is necessary to secure Iraq from a military perspective?

MULLEN: There's no definitive number right now beyond the end of 2011.

STEPHANOPOULOS: But it's not zero?

MULLEN: Well, I mean, when I'm engaged in other countries around the world, I have very small footprints of military personnel in that engagement. You know, and I would hope long-term, that we would have a great military-to-military relationship with Iraq.

STEPHANOPOULOS: That could include U.S. troops there?

MULLEN: Well, I mean, we've got small numbers of troops throughout the world that conduct training activities, exercises, and those kinds of things. So long-term in Iraq, I would look to be able to do something like that.

STEPHANOPOULOS: We're also increasing our troop presence, of course, in Afghanistan, and that's raised a lot of concern in the Congress recently. Some members of Congress -- leading members of Congress, like Dave Obey, the chairman of the Appropriations Committee, saying he's willing to support funding now, but he's only going to give you a year to show progress.

Here's also what Congressman Jim McGovern of Massachusetts said on the floor.

(BEGIN VIDEO CLIP)

REP. JIM MCGOVERN (D), MASSACHUSETTS: I'm not advocating for an immediate withdrawal of our military forces from Afghanistan. All I'm asking for is a plan. If there is no military solution for Afghanistan, then, please, just tell me how we will know when our military contribution to the political solution has concluded.

(END VIDEO CLIP)

STEPHANOPOULOS: That's a great question. How will we know when the military contribution has been successful?

MULLEN: Well, I think as we move more forces into Afghanistan this year -- literally, we're doing that as we speak -- that's absolutely necessary to provide to turn the security situation around.

But the military solution is not enough. We've got to have government, governance capability increase dramatically. We've got to have development, economic development. We need more civilians from our government and civilians from other agencies and other countries, as well.

So it's the three-legged stool. It's development, it's rule of law and governance, as well as security. And I think not unlike Iraq, we get security to a point where these other -- these other aspects can be developed much more fully, and we'll know at that point in time how far we've gone and what our next step should be.

STEPHANOPOULOS: Specifically, what can be achieved in the next year?

MULLEN: I think with the troops that we put on the ground there, that over the next 12 to 18 months, we have to dramatically change the security situation and stem the tide. We've had an increasing level of violence in the last three years from in '6, '7, and '8, and I think in '9 and '10, we have to start to turn that around.

STEPHANOPOULOS: Let me talk about the issues of gays in the military. The president has told you that he wants to repeal the "don't ask, don't tell" policy so that gays and lesbians can serve openly in the military. And the Pentagon said this week that you personally, along with Secretary Gates, are working to address the challenges associated with implementing the president's commitment.

What exactly are you doing? And what exactly are you worried about?

MULLEN: The president has made his strategic intent very clear. That it's his intent at some point in time to ask Congress to change this law. I think it's important to also know that this is the law, this isn't a policy. And for the rules to change, a law has to be changed.

STEPHANOPOULOS: And there's legislation introduced in the Congress.

MULLEN: And there is. Exactly. And so I've had discussions with the Joint Chiefs about this. I've done certainly a lot of internal, immediate staff discussions about what the issues would be and how we...

STEPHANOPOULOS: What are they? What are the challenges?

MULLEN: Well, it's my job as the senior military adviser to provide best advice, best military advice for the president. And what I owe him is an objective assessment of what these changes would be. What they might impact on. And there could be speculation about what that might be, but my goal would be to achieve an objective assessment of the impact, if any, of this kind of change.

In addition, you know, I would need some time for a force that's under a great deal of stress -- we're in our sixth year of fighting two wars -- to look at if this change occurs, to look at implementing it in a very deliberate, measured way.

And what I also owe the president, and I owe the men and women in uniform, is an implementation plan to achieve this based on a timeline that would be set, obviously, after the law is changed.

STEPHANOPOULOS: One of your predecessors, General John Shalikashvili, who was the chairman of the Joint Chiefs back in the early '90s, has said he has second thoughts on this whole issue now. He was against opening up service to the gays and lesbians then. Now he's written, "I now believe that if gay men and lesbians served openly in the United States military, they would not undermine the efficacy of the armed forces. Our military has been stretched thin by our deployments in the Middle East, and we must welcome the service of any American who is willing and able to do the job."

Is he right?

MULLEN: He's certainly entitled to his own personal opinion. And certainly, I have the greatest respect for him.

There are also lots of retired generals and admirals on the other side. STEPHANOPOULOS: What's your opinion?

MULLEN: And what I would hope to do in this, George, again, given the strategic intent of the president, is to avoid a polarizing debate that puts a force that's very significantly under stress in the middle. And to get this, get to this, assuming the law is going to change, and, again, a measured, deliberate way. And that, as the senior military leader, is what I consider my principal responsibility.

STEPHANOPOULOS: Measured, deliberate way. So it sounds like if the Congress calls you up to testify in this, you're going to say now is not the time to repeal?

MULLEN: No, I actually -- I'm going to talk to the process that we have in this country, which is we follow the law, and if the law changes, we'll comply. There's absolutely no question about that.

STEPHANOPOULOS: We have a couple of minutes left. I want to ask you about working with President Obama as the commander in chief. You've been doing it for about four months now, a little bit more than four months. What have you learned about the president as commander in chief? And is he performing as you expected?

MULLEN: It's very rare with any kind of major issue that the president doesn't initially ask, OK, where are we going here? What's our end stake? And then developing a strategic view of how to get there and the major pieces with respect to that. That he is developing policies and policy objectives that the military can support, and the policy and the strategy are very clear.

And I'm not a policy and a strategy guy. I'm -- you know, the military basically supports what the president wants, the decisions that he makes. And he has done that, he has done that in Iraq, he has done that in Afghanistan and in Pakistan. And I find that to be -- to be a method that gives the military the kind of focus it needs for where we're going.

STEPHANOPOULOS: Has he surprised you in any way?

MULLEN: No, not really. I mean, I met him before the -- I think a week or so after he was elected. We had very frank conversations about our positions on various issues, in terms of how we saw things. He was very clear about what he wants to do.

He's a very bright, focused individual. He takes a diversity of opinion, and then he is -- he is as every president is, you know, he knows he has to make decisions. He has made them, he has made hard ones, and I think he will continue to do so.

STEPHANOPOULOS: Finally, as you pointed out, the military has been under tremendous stress for the last eight years. Families have been separated again and again. The suicide rate has risen pretty dramatically in the military.

What do you want on this Memorial Day weekend? What do you want Americans to know about what the military is going through? And what do you want them to reflect on?

MULLEN: Well, we do have a force that's pressed very, very hard. That said, they're the best military I've ever been associated with in my 41 years of wearing the uniform. They have performed incredibly. I would like America to remember those who have served and those that we've lost and their families.

I would like to -- there's tremendous resolve in our military. We're fighting two wars, and the goal to win and succeed in these wars is resonant throughout our military and the capability to do that. And that we -- and that we are resolved as a country to support those who have given so much. Those who have fallen, families of the fallen, and those who have been wounded.

And communities throughout the land reach out to these young people who have gone forward, sacrificed greatly, and have rich lives that they look forward to even though their path on getting there may have changed because they've been wounded, injuries seen and unseen.

But they're great Americans, and we need to take care of them.

STEPHANOPOULOS: And we will remember all of that tomorrow. Admiral Mullen, thank you very much.

MULLEN: Thank you, George.

STEPHANOPOULOS: The roundtable is next with George Will, Donna Brazile, E.J. Dionne, and David Brooks.

And later, the "Sunday Funnies."

(BEGIN VIDEO CLIP)

DAVID LETTERMAN, HOST, "THE LATE SHOW": The speech went over pretty well. I mean, Cheney was interrupted five times by applause and 50 times by people screaming, stop, I'll tell you everything!

(LAUGHTER)

(END VIDEO CLIP)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

OBAMA: I want somebody who obviously has a clear sense of our Constitution and its history and is committed to fidelity to the law, is going to make their decisions based on the law that's in front of them. What I want is not just Ivory Tower learning. I want somebody who has the intellectual firepower but also a little bit of a common touch and has a practical sense of how the world works.

(END VIDEO CLIP)

STEPHANOPOULOS: President Obama laying out a little more detail, what he's looking for in a Supreme Court justice. That was to Steve Scully of C-SPAN on Friday. Here to talk about it on the "Roundtable" I'm joined as always by George Will, David Brooks of "The New York Times," E.J. Dionne of "The Washington Post" and welcome back to Donna Brazile.

And George, the thing about the president's qualifications are they could apply to just about anyone on his supposed short list. Let's show the viewers the short list right now. Getting the most scrutiny from the White House. Elena Kagan, former dean of Harvard Law School. Judge Sonia Sotomayor of the 2nd Circuit Court of Appeals up in New York. She would of course be the first Latina justice on the court Judge Diane Wood out of Chicago and the Appeals Court of Chicago and also taught with President Obama at the University of Chicago Law School. George, all three of those candidates have already drawn a lot of fire from conservatives.

GEORGE WILL, ABC NEWS: If he picks Sotomayor, he'll be in the awkward position, I think, of having her hearings begin in July and she having just been overturned on an important case, the New Haven firefighters affirmative action case. Let me just set the scene by saying what worries me about what he said and what worries me about what the conservatives are saying. He has said the court has to stand up if no one else will. Now, that's a view of the court that if the political system is failing to solve social problems, the court must do it in its unresponsive and hence more liberated exercise of power.

He's also said he wants justices with a broad vision of what America should be. Combing those two you have approximately the way Justice Taney decided the Dred Scott case. He said, I have a vision of America in which black people have no rights that whites are bound to respect. And I am going to solve the secession crisis because no one else will.

Now conservatives are saying we don't want activist judges, we want judges who will defer to the political branches of government. The problem is the worst case since Dred Scott arguably was deferring to Franklin Roosevelt as a wartime leader in interning 110,000 Japanese-American citizens. The case that offends most conservatives recently came out of New London, Connecticut, wherein the democratically elected City Council using its eminent domain power took property away from people, gave it to businesses because they would pay higher taxes and that was deference again. What the conservatives really wanted in both cases was more activism.

STEPHANOPOULOS: You've given so much to chew on. Let's start with the first part first. Your take on the president. Because I saw both Donna and E.J.'s eyebrows raise as you started to talk about the president. Donna, you go first.

DONNA BRAZILE, DEMOCRATIC STRATEGIST: I think the president is looking for somebody with a sharp legal mind but also someone who understands how the law applies to everyday people in their struggle.

STEPHANOPOULOS: And there's nothing wrong with that.

BRAZILE: Absolutely nothing wrong with that. I mean all you have to do is look back at the Lily Ledbetter case to understand you want someone who understands the law but how it applies to people in everyday life. Here's Lily Ledbetter working for 20 years not knowing she's underpaid and the Supreme Court basically looked at her case and said, it's your fault you didn't know that you were being underpaid, so I think he is looking for someone who can both crystallize the law but understand how it applies to everyday people.

DAVID BROOKS, "NEW YORK TIMES": Well, I would say first we want somebody with reverence to the Constitution. And I think that's what George is getting at. It's not a question of how powerful or unpowerful, we want somebody with reverence for that document. I think we're going to have a big fight here. Because what we know about what President Obama wants? He believes that John Roberts is much more conservative than he led on at his hearings, he thinks John Roberts is much more aggressive especially on civil rights issues like Lily Ledbetter than people are aware so he wants someone who is a powerful counterforce like Sonia Sotomayor. So I think that issue which brings in the New Haven firefighters case which they studied hard for a test, passed the test and that had the results of that test overruled ...

STEPHANOPOULOS: The test was ruled invalid.

BROOKS: Invalid because not enough minorities also cleared that bar. That is going to set up a big fight. As I talked to senators, Republican senators right now, they don't want a fight but I think they're going to get dragged into it. STEPHANOPOULOS: They want a debate but not necessarily a fight. And E.J., your top candidate, you think is someone who can actually bridge the differences.

E.J. DIONNE, "WASHINGTON POST": I think Elena Kagan who is solicitor general has a couple of advantages. One is she's been vetted and confirmed. Seven Republicans have already voted for Elena Kagan when she came up and she's someone who is on the liberal or progressive side but showed up at Harvard when she was dean that she could work with conservatives and I think Obama wants somebody who could persuade people on that court the way Justice Brennan did but I'm so glad that George raised the Dred Scott case which surprised me because that is a clear example of conservative judicial activism gone wild and I think that is precisely what the issue here is going to be in this debate. And I think it's totally legitimate for the Republicans to make a philosophical argument here. I hope we have that argument.

STEPHANOPOULOS: Well, you know, you're right. What they're arguing is that the Senate Democrats and President Obama actually gave up the idea that the Senate should just approve someone if they have the qualifications and temperament back in 2005 when opposed Roberts and Alito. And George, I do think that means that David is probably right. That we're likely to see a big fight no matter who President Obama appoints even though not only Elena Kagan got support from Republicans but both Judge Sotomayor and Judge Wood when they were raised to the Appeals Court received overwhelming support from both parties.

WILL: You'll see a big argument, but it is a foregone conclusion that will lack comic relief because Joe Biden is no longer on the Judiciary Committee and can't ask as he did of Alito an eight and a half-minute question, but I don't -- everyone knows that whoever he picks, unless they haven't paid their baby-sitter taxes is going to be confirmed.

STEPHANOPOULOS: That's right. And the question is, what is -- what points do the conservatives make in this debate?

BROOKS: Right, well, I think -- say it's Sotomayor to take an example. But there are lots of cases that will follow this model. They hit that New Haven firefighters case and the to these guy, one of them had dyslexia, studied hard, passed the test, it's unfair. That is a very principled argument that Republican are going to make. In so doing probably alienating large parts of the minority population, especially the Hispanic population in this country. And that is the weakness he will exploit.

STEPHANOPOULOS: That is another argument in favor of Sotomayor, is the first Latina. Hispanics are the fastest-growing voter group in the country.

BRAZILE: Grew up in public housing -- you know, a graduate of some of the best schools in the country.

As someone who has not only taken on affirmative action but so many other important issues that this country will face, I think she would make an excellent choice.

But, you know, the conservatives, at this point, need arguments. They want -- they want to fight. They want to raise money. They want to rally their base. And I don't see them making a big intellectual argument against any of these candidates, except that they might find some issue to go out there and throw red meat at their party's disgruntled base.

DIONNE: You know, and I think they've got a problem, which is they do need to make a principled argument. They do need to rally their base. The voters they've been losing ground among are middle- of-the-road young, suburban voters. They don't want a hard-right Republican Party.

So it's going to be interesting as to how they frame this. But I think Obama would welcome another fight, which is a fight about empathy.

(LAUGHTER)

I think that, if the Republicans want to cast themselves as opponents of empathy, that would be a very interesting argument.

(LAUGHTER)

(CROSSTALK)

STEPHANOPOULOS: George, go right ahead.

WILL: Well, I actually don't think empathy is -- is the test. In fact, I think it can be a judicial defect. We all are familiar with, and are going to hear over and over again, the famous story of Justice Holmes leaving lunch with Learned Hand. Learned Hand says, "Mr. Justice, do justice." Justice Holmes stopped his carriage and said to Learned Hand, "That's not my job, to do justice. My job is to apply the law."

(LAUGHTER)

DIONNE: And if reading the Constitution were like reading a cookbook, we wouldn't have so many 5-4 decisions.

(LAUGHTER)

BROOKS: If I could just speak up for the Oprah wing of the conservative movement...

(LAUGHTER)

... I am, sort of, pro-empathy. I don't think we can have automatons. I don't think there are automatons in the universe. People make decisions based on emotional reactions, even people wearing black robes.

And to me, the Republican Party would be in a lot stronger position if they framed the argument -- say it's on civil rights -- this way. We can either lower the standards for some groups or we can empower people to meet those standards through education, through 8 million policies I've already -- already suggested.

The problem is the Republicans haven't suggested those policies. They haven't talked about ways to get groups up so they can meet all these, say, firefighter standards.

WILL: Let's also remember that the presidents have to be surprised by whomever he appoints. Roosevelt was chagrined by the results of appointing Felix Frankfurter. David Souter, who this person is replacing, was certainly a surprise to the conservatives. Harry Truman when, in the steel seizure case, two of his appointees ruled against him, said, when you appoint a man to the Supreme Court, you lose a friend.

STEPHANOPOULOS: You know, I wonder if that's...

(CROSSTALK)

STEPHANOPOULOS: ... if that's no longer true.

(CROSSTALK)

WILL: Because of the thoroughness?

STEPHANOPOULOS: Because of the thoroughness of the vetting process.

WILL: Could be.

STEPHANOPOULOS: You've seen the last four -- the last four appointees, both Democrat and Republican, have performed pretty much according to form.

Let's switch subjects, right now, to the big debate of the past week, President Obama up against former Vice President Dick Cheney.

And it seemed like the parties were really maneuvering for political advantage this week, as well, the president trying to seize back the debate.

And by the end of the week, both parties had put out ads, the Republican Party and Democratic allies also putting out an ad on behalf of the president.

(BEGIN VIDEO CLIP)

ANNOUNCER: To close it, to close it not.

WHITE HOUSE PRESS SECRETARY ROBERT GIBBS: We've made some hasty decisions.

(UNKNOWN): These are the stakes.

PRESIDENT BARACK OBAMA: Guantanamo, that's easy. Close down Guantanamo. (END VIDEO CLIP)

(BEGIN VIDEO CLIP)

ANNOUNCER: Last week, President Obama and the Democrats in Congress cracked down on credit card abuse. Congress said no to the bank lobby and yes to consumers. To their credit, Congress is finally getting the idea.

(END VIDEO CLIP)

STEPHANOPOULOS: That last ad from the group called Americans United. And, Donna, Democrats were pretty frustrated this week. That credit card bill passed. This hardly gets any attention, given this national security debate. And Republicans on Capitol Hill and around the country seem pretty happy that they were front and center with their national security arguments this week.

BRAZILE: I think the Democrats should have known that the Republicans were going to use the entire issue of Gitmo Bay to -- to, sort of, put the Democrats on the defense.

We saw it in the House and then, every day, McConnell went out there, the minority leader, and hammered the president: no plan, no plan, where is the plan? And clearly the Democrats were caught without a plan, as something to say, hey, we have a response to this.

So the president was forced to go out there and regain the moral higher ground. But the Democrats really can go home this week and tell the American people that they are still dealing with the economy, dealing with the issues that they care about. Meanwhile, the Republicans are looking for distractions. And, clearly, this week the Republicans found something to chew on.

BROOKS: You know the old line that, when two guys fight over a girl, it's the fight they want, not the girl.

(LAUGHTER)

That's what this week reminds me of. We have a bipartisan anti- terror policy in this country. If you take the anti-terror policy of the last four years of the Bush administration and stack it up with the first four months of the Obama administration, you have the same policy, with some adjustments on renditions, on secret prisons, on habeas corpus, even on Gitmo.

STEPHANOPOULOS: President Bush said he wanted to close Guantanamo, just didn't have a plan.

BROOKS: Right. And Condi Rice and people in that administration went around Capitol Hill, went to country after country saying, we want to close Gitmo, please take the prisoners. It never occurred to them they could announce the closure first and then figure out what to do with the prisoners later.

It's the same policy. So buy nobody can admit that. Dick Cheney wants to pretend Obama has changed the policy and is making us unsafe. Obama wants to pretend he changed from the dark days of the Bush administration. It's the same policy.

WILL: Whereas the truth is, according to Professor Goldsmith, worked in the Bush administration, objected successfully to many of the Bush administration policies, he says the following.

"The new administration has copied most of the Bush anti- terrorism program, has expanded some of it and has narrowed only a bit. Almost all of the Obama changes have been at the level of packaging, argumentation, symbol, and rhetoric."

STEPHANOPOULOS: And White House does not like this argument at all, but when you look at keeping preventive detention, restoring tribunals, although a revised form of them, blocking the release of the photos, there are a lot of similarities.

WILL: Rendition.

DIONNE: You know, I think it's worth remembering that Bush changed his policy after three Supreme Court decisions.

But I think the White House was really sending out two signals to different groups. They wanted -- they're trying to split the right and I think they succeeded in doing that. You have got moderate conservatives like David saying really this is more like the Bush policy, this is a good thing. And then you've got the Cheney conservatives on the other side.

And I think Cheney did Obama a huge favor by showing up because civil libertarians and liberals have some real problems with some of these policies, the idea of unlimited detention in a constitutional republic without any due process is a real problem.

And I think Obama is going to have to revisit that. He argues and he has got a point that there are some people who can't be tried and can't be released. Nonetheless, this is not POWs in a normal war.

No one is going to come out and say, of the war on terror, "mission accomplished" any time soon. And I think that issue still sits out there for not just the left, as people say, but a lot of moderate civil libertarians.

STEPHANOPOULOS: Well, meanwhile, (INAUDIBLE) that seems to unite right and left, Donna, at least in the Senate, is the issue of bringing detainees here to the United States. The president began to make the argument on Thursday, hey, wait a second, we have got hundreds of terrorists in prisons here in the United States, in supermax prisons, yet it was a real rebuke from Senate Democrats, 90- 6. And this is going to be tough to turn around.

BRAZILE: Well, George, they were caught off-guard. They didn't have a strategy to say, wait a minute, we have a detailed plan of how we're going to deal with these prisoners. By the way, who are these prisoners? What's the crime? Will they be charged? Will they not be charged? And then, of course, we have the chorus coming from the right saying -- you know, especially the talk show populists saying not in my backyard. And now they're even having "Club Gitmo" T-shirts. So people are...

(LAUGHTER)

BRAZILE: By the way, they probably don't come in extra large, so I won't be wearing one. But people are out there now, you know, basically going back into campaign mode. And this is all about a serious plan that the president needs to come up with, what to do with these prisoners.

DIONNE: A friend gave me a solution to this last night, California needs a bailout. And none of the states want the Gitmo prisoners. California agrees to take all of the prisoners and then it gets its bailout.

BROOKS: Hotel Bel Air.

(LAUGHTER)

(CROSSTALK)

WILL: California is going to release prisoners.

(LAUGHTER)

BRAZILE: To save money.

STEPHANOPOULOS: I want to get to California in one second, but let me just first ask, David, one more question. You point out this was a bipartisan policy. Guantanamo was a bipartisan policy. How does the president get John McCain, Lindsey Graham, other Republicans back on board to bring detainees into the United States?

BROOKS: Well, he has quoted them quite liberally in order to support that policy. The NIMBY issue is just a tough issue. My sense from the White House is they've written off that issue. They're going to find some way to have a Guantanamo 2. It won't be called Guantanamo...

STEPHANOPOULOS: Maybe build a military prison here in the United States.

BROOKS: Build something else here. But his essential problem is he's running a moderate George H.W. Bush foreign policy and he can't admit it to his own base. He had better start.

STEPHANOPOULOS: OK. Let's move on to California then. This is another tough issue for the president right now. California, $21 billion deficit. Could run out of money in July. Has already asked the federal government for some loan guarantees. President Obama in that C-SPAN interview said no. So did Tim Geithner, the treasury secretary, when he was up at Congress this week.

But when he was finally asked, are you going to rule out assistance, here's what he said.

(BEGIN VIDEO CLIP)

TIMOTHY GEITHNER, TREASURY SECRETARY: We will have to do exceptional things as we have done already to fix this mess. That's not putting on the table or taking off the table any specific thing like that. But I just want you to know that there are things that we've had to do I would never have contemplated doing.

(END VIDEO CLIP)

STEPHANOPOULOS: So let me put up for -- to remind everyone, 1975, the famous Daily News cover, Gerald Ford to New York City: drop dead, I think it's going to come up right there.

"Ford to City: Drop Dead," and, George, I'm reminded that a month later Gerald Ford approved loan guarantees for New York. Is that what we're going to see here with California?

WILL: I certainly hope not. Mr. Geithner did say it's a mess and we are going to fix it. No, it seems to me they've...

STEPHANOPOULOS: Ruled out TARP money, though. He said no TARP money.

WILL: Well, he said no TARP money because statutorily TARP is to be used for financial institution such as Chrysler and General Motors. It was a breath of fresh air for Geithner to say there is something the Treasury doesn't have authority to do with the taxpayers' money. That's progress but 10 percent of the Congress, approximately, comes from California and they will be heard.

DIONNE: You know, what California really needs is not a bailout but a constitutional convention. One of the reasons they're in this fix is because you can't get a budget through without two-thirds of the votes of the legislature. One-third plus one, in this case the most conservative members of the legislature can block the usual deal that you make to solve a problem like this.

WILL: An excellent thing.

DIONNE: And it's a disaster. It's created this problem. Then you have voters who can go to referendum and vote for programs without necessarily paying for them and so you have this problem at the heart of the California budget situation.

WILL: E.J., E.J. lays out the plan for fixing California by making it easier to raise taxes and transfer wealth from taxpayers to the public employees unions. That would be the solution that I would expect the administration ...

BRAZILE: It's drastic cuts in education and health care, laying off thousands of workers and I think the ...

WILL: Thousands of workers that added to the payroll during this crisis. BRAZILE: Of course, turning over undocumented illegal people over to the federal prison so we are going to have to help California find a way to close this budget gap. Maybe help them with their municipal bonds and make sure they can get on the market and get the best price but ...

STEPHANOPOULOS: So you think they will turn around.

(UNKNOWN): It's a lot of electoral votes.

BROOKS: Once you start there, believe me there are 49 other states or at least -- 30 some or Democratic states, let's be more explicit about this. The problem is as George pointed out in a column way in front of us on this story, spending on the public employees has been exploding. What is it twice the cost to house an inmate?

And then when you concentrate revenue on getting the top one percent that gives you incredible volatile revenue streams. But stock options one year but no stock options the next year and you get these crashes and if we bailed them out that would be addressing none of the structural issues.

STEPHANOPOULOS: That may be but one of the suggestions people have made is that, okay, there should be conditions. I know George Will wouldn't like them but you should do away with the two-thirds plus one, you should do away with the constitution ...

WILL: Californians wouldn't like it. This is federalism. People have a right to the laws they want.

DIONNE: Two-thirds plus one is not a democratic system. It requires -- it gives a minority the power to write the state budget. But I think what you're going to see is not a direct bailout of California. There wasn't enough money put in the stimulus package to help enough states that are in trouble. If it was in normal times where one was in trouble he might be able to do a bailout but you have so many states are facing trouble if they help they'll have to do something more general. I don't think they can't just help California.

BROOKS: Gray Davis, we had the last California iteration. Now we have this one. If we don't ...

DIONNE: And the system in California is broken. Exactly.

STEPHANOPOULOS: Meanwhile, the president does face a real political problem and a real economic problem. He can't allow California to go under. So what do they do?

BROOKS: Well, I would hope they would hope they would reduce -- some of the public employee unions that have gotten huge increases without doing the draconian things that Donna talked about, that's got to be possible. Because if they kept spending at a reasonable rate over the past 20 years they wouldn't be having this problem. So there must be a way to cut and do structural reforms without the equivalent of closing the Washington Monument. BRAZILE: This is not just an attack on unions and their pay as we saw in the whole conversation about General Motors and Chrysler. This is structural problems that must be addressed and many of these states are having a hard time selling their bonds on the market. And I think the federal government maybe with the TARP money, whatever, can help these states get these bonds on the market to help them with their little credit crunch.

WILL: Well, good. Let the administration go to Congress and say, we want a law passed to bail out California. The problem with this is, generally, it interrupts all the feedback loops by which people learn. California has to learn. The other 49 states have to learn. And they are to some extent not mere appendages of the federal government.

BRAZILE: Who is the image here? The federal government? Who are they going to learn from, George? We're in a recession and they're having a hard time getting money and they have all of this -- the needs -- the budget needs but we're in a recession. And that's money not coming in.

WILL: Donna, if we went back to the Dark Ages, to the spending levels in California of say 2002 they wouldn't have these problems.

BROOKS: There's one other issue George may not like. Term limits. If you're only in the legislature for a short period you don't care about the out years. That's been a big factor here. Frankly, if we want to reach a compromise I'll give you a short-term bailout if there is fundamental reform, if Obama leans on them and they really do fundamental reform. I think most would accept that.

STEPHANOPOULOS: That is actually what happened in New York back in 1975. The City of New York did and the State of New York made reforms. You guys can continue this in the green room. All of you can join in later on abcnews.com and for political updates all week long follow me on FaceBook and Twitter.

END

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