'This Week' Transcript: Leahy and Sessions

TAPPER: As our roundtablers take their seats, here are some highlights from recent confirmation hearings, examples of what Elena Kagan called, quote, "the real confirmation mess."

(BEGIN VIDEO CLIP)

CHIEF JUSTICE JOHN ROBERTS: I'm just absolutely prohibited from talking about it.

JUSTICE SAMUEL ALITO: Can't answer.

JUSTICE SONIA SOTOMAYOR: It's difficult to answer that question.

ROBERTS: My ethical obligation not to comment publicly.

SOTOMAYOR: I understand the seriousness of this question.

ROBERTS: But I can't address that.

ALITO: That would be a disservice to the judicial process.

ROBERTS: Senator, again, that is a question I can't answer for you.

(END VIDEO CLIP)

TAPPER: And joining me now, our all-star roundtable as always. George Will, former Obama White House counsel, Greg Craig. Glenn Greenwald of Salon.com. Former Bush White House Counselor Ed Gillespie, and Helene Cooper of the New York Times. Thanks one and all for being here.

George, I want to start with you with Elena Kagan. Is it safer these days to pick a Supreme Court nominee who does not have much of a paper trail?

WILL: Yes, that's the lesson that was learned from the Bork hearing in late summer of '87, when in effect it was a constitutional moment. Because after that, the meaning of advise and consent was changed by the practice of the Senate.

Now, her paper trail, which hitherto had been five law review articles, suddenly got an awful lot longer with access to the papers she generated as part of the White House counsel. It won't matter because when the same extension was made to bring Justice Roberts' papers from his service in the White House into play, all he said when something got controversial was, that was then, this is now. Then I had a client. It was the president. As a judge, I won't have a client.

TAPPER: Greg, you've known Kagan since 1989 when you both worked together at Williams & Connolly, the law firm. But you also helped shepherd the Sonia Sotomayor confirmation hearings successfully, and Ed, you successfully did John Roberts. So I want to ask you, would you give any different advice to her, other than keep it quiet, don't answer questions as much as possible?

CRAIG: I think she'll try to answer questions as honestly and as completely as she can. There is this rule, which I think should be respected, that you don't comment on issues that are likely to come in front of you. And that is the right way to have it, because people that come before a court, litigants before the Supreme Court or other courts, don't want to have the feeling that the judge that is ruling on their case have already made up their minds.

So I think that response, which we saw with all those nominees, declining to answer the question, it's a little bit stacked, Jake, because that answer was the appropriate answer for many of the questions that were asked about this or that issue. You don't want to appear that you're prejudiced or predisposed to a decision. Rather than coming to the court as you should, taking every case and every different dispute for its own -- on its own terms.

TAPPER: Glenn, you've been one of the more critical voices from the left about the Kagan pick. You want her to reveal as much as she can.

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