'This Week' Transcript: Secretaries Gates and Clinton

April 11, 2010 — -- TAPPER: Good morning, everyone. We start this morning with the announcement that Supreme Court Justice John Paul Stevens is retiring. The longest sitting justice on the court, Stevens is firmly in the liberal block, and now the president has his second Supreme Court appointment. And coming in this polarized atmosphere and an election year, the nation's capital will likely have a long, hot summer.

Joining me this morning, two senators who will play key roles in the confirmation battle, Democrat Chuck Schumer and Republican Jon Kyl, both members of the Senate Judiciary Committee. Senators, thanks so much for joining me.

SCHUMER: Morning.

KYL: Thank you, Jake.

TAPPER: Senator Kyl, we just heard you say that you are concerned about President Obama nominating what you call an overly ideological person. We know four people on the short list include Solicitor General Elena Kagan, Judge Merrick Garland, Judge Diane Wood, and Secretary of the Department of Homeland Security Janet Napolitano. Are any of them overly ideological?

KYL: It will depend upon the analysis of what they have written, what they have said, judicial decisions they've made, and what they say in hearings is when my colleagues and I, I think, would reach that conclusion. They are all nominally qualified, and again, the question I think to present is, do judges like this or candidates like this approach judging on the basis of each case presenting its unique facts and law and being decided strictly on that basis, rather than with a judge coming to the bench with an ideological position. For example, I've heard colleagues say, we want somebody who will be tough on executive powers. I've heard somebody else say, we need somebody to be tough on large corporations. No, you need somebody that will decide the case. Whether the big corporation or the executive should win a particular case depends upon the facts of the case and the law, not on the judge's ideology before that person even gets to the bench.

TAPPER: Well, let me just follow up with you for a second, Senator Kyl, because Senator Jeff Sessions, the ranking Republican on Judiciary, and other colleagues of yours, have talked about the importance of this nomination because the Supreme Court will likely hear from the states who are trying to block the federal government from requirement individual citizens to get health insurance. What will you be asking the nominee when it comes to that issue?

KYL: Well, first of all, you don't ask the nominee how he or she would rule on a case that's likely to come to the court. But you try to discern their attitudes.

I was just in a small town in Arizona. As I drove into town, I saw a sign for the reelection of a judge, reelect Judge so-and-so. He's fair. That's all you ask for, in addition to the qualifications, which I'm sure the candidate will have.

What I object to and I think my colleagues would object to is somebody that comes in with preconceived notions about how particular cases should be decided. For example, on the case of the required -- requirement that you buy insurance under the health care bill. Just decide that case based upon the reading of the law, what the precedents are and what the specific wording of the statute is. Nothing more.

TAPPER: Senator Schumer, you said in 2007 that the Senate should reverse the presumption of confirmation, and that a nominee's ideology does matter. Should Republicans adopt the Schumer principle when considering President Obama's nominee?

SCHUMER: Well, I think actually, in fact, Senator Kyl and I in terms of standard are saying the same thing. What you want is somebody who will follow the law, not make the law. Not impose their ideology, if they're far right, far left, on the law itself. If they're in the mainstream, you don't have to agree with all of their views to vote for them. I voted for hundreds of judges that George Bush nominated, and I didn't agree with their views, their judicial ideology. But as long as I thought they would follow the law, not make law, I was willing to vote for them.

And the one final thing I'd say is this. If you look at who President Obama has nominated, somebody like Judge Sotomayor, who got nine Republicans to vote for her, no one questioned that she was out of the mainstream. The other nominees in many of the courts of appeals and district courts, he chooses people in the mainstream. So I don't think there's going to be a filibuster or a blocking. And furthermore, practically, this is not a switched vote -- a swing vote in the sense that your -- having somebody, Justice Stevens, and President Obama is likely to choose somebody in Justice Stevens' image.

TAPPER: Senator Schumer, do you think that if you were giving President Obama advice, would you recommend that he go with a more moderate person ideologically, or does it matter?

SCHUMER: Well, the first and most important criterion is legal excellence, and of course I think we'll find that.

To me, there is a second criteria that matters a lot, and it's a little bit different. In my view at least, Justice Roberts has tried to move the court very far to the right, much further than we ever envisioned. I think Justice Stevens felt that in some of the opinions, dissents that he rendered. And he's been able to get Justice Kennedy to go along with some of those. So my view would be, I'd like the new nominee to be one of five, not one of four when the votes come up, and somebody who would be quite persuasive in terms of influencing other justices, I guess particularly Justice Kennedy, to his or her point of view. And that would matter to me more than -- more than any particular ideology.

TAPPER: Senator Kyl, almost the reverse question for you when it comes to the filibuster. Throughout the Bush years, you repeatedly spoke against Democrats using the filibuster. In 2008, you said this, quote, "It's been understood by both parties that you do not play politics when it comes to confirming judges, because while you may be able to stop the other party president's nominations one time, they might be able to stop yours next time. Besides which, it's not good government, it's not doing the people's business. The president was elected fair and square. He has the right to submit judicial nominees, and it's the Senate's obligation under the Constitution to act on those nominees. So are you willing to take the filibuster off the table?

KYL: I am going to abide by what became known as the rule of the gang of 14. After President Bush was elected in 2000, Democrats successfully filibustered or threatened to filibuster 12 judges on the circuit court of appeals that were nominated by President Bush, including Miguel Estrada, an extraordinarily fine individual. And that was beginning to get out of hand, and eventually 14 senators got together and said, look, we will not filibuster any judge except in extraordinary circumstances. And that's pretty much the way that it's been ever since then. And that's why I think both Chuck and I would agree that it is unlikely that there would be a filibuster, except if there is an extraordinary circumstance. I'm never going to take it off the table because of what the Democrats have achieved here, which is the possibility of a filibuster.

President Obama himself attempted to filibuster Justice Alito, who now sits on the Supreme Court. So if the president isn't going to take it off the table, I'm not going to take it off the table. But I think it can easily be avoided by appointing, frankly, the kind of person that Senator Schumer just mentioned, someone who is mainstream enough that with intellect and the application of good law can persuade colleagues to support his position or her position.

SCHUMER: And the only good news, I'd say, Jake, is I think that it's just about a certainty that the president will nominate someone in the mainstream, so the likelihood of a filibuster is tiny.

TAPPER: We only have a couple of minutes left, so I am going to exercise my prerogative against filibusters with you two, if you would, just bear with me and be very quick. I want to ask about a couple of international issues.

Senator Schumer, the Israeli newspaper "Yedioth Ahronot" quoted an anonymous confidante to President -- I'm sorry, to Prime Minister Netanyahu, calling President Obama quote, "the greatest disaster for Israel, a strategic disaster." I'm sure you have some constituents who share those views, and perhaps those concerns. Do you think that the White House has behaved towards Israel and the prime minister of Israel as you would want them to?

SCHUMER: Well, let me say this. I think everybody here in the United States, virtually everybody, and the vast majority of Israelis want peace. They're willing to accept a two-state solution. The best way to bring about that peace is let the two sides negotiate, and bring them together.

I think one of the problems we have faced in the Middle East is that too many of the Palestinians, they elected Hamas, sworn to Israel's destruction, don't really believe in peace. And I do believe that you have to let the two parties come together. If the United States imposes preconditions, particularly on the Palestinian and Arab side, they'll say, we won't come and negotiate.

TAPPER: Very quickly, Senator Kyl. You helped lead the cause of immigration reform in 2007. Senate Majority Leader Harry Reid said that he is going to bring up immigration reform. You said the other day in Yuma, Arizona, that Republicans will use the opportunity to filibuster. Are you going to help with the filibuster of immigration reform?

KYL: I don't think I said that, Jake, but what I did say is that the conditions for immigration reform no longer exist. The consensus that existed before does not exist. And among other reasons, because the administration -- this current administration has not done what's necessary to secure the border and enforce the law. We just saw the tragic death of a rancher down on the border, presumably from drug smugglers or illegal immigrants, that simply illustrates once again the fact that we have not controlled the border. And until that's done, I think it's going to be very difficult for Congress to support legislation that would be as comprehensive as that I supported three years ago.

TAPPER: OK, Senator Kyl and Schumer, thank you so much for joining us. We really appreciate it. Enjoy the rest of your weekend.

Even before news from the Supreme Court, this has been a momentous week for the president. He signed a new nuclear arms treaty with the Russians and released a new nuclear policy. Two of the main architects of the president's nuclear policy are Secretary of State Hillary Clinton and Secretary of Defense Robert Gates. I spoke with them Friday at the Pentagon.

TAPPER: Secretary Clinton, I'd like to start with you. This has been a big week for talking about deterrents. Especially deterrents against Iran. And yet we learned that Iran is announcing the third generation of centrifuges. Six times faster than the previous generation. Is Iran not saying to the United States, "We are not deterred"?

CLINTON: Well, Jake, it has been a very positive week for American foreign policy, and particularly with respect to our nuclear posture. When it comes to Iran, we take everything they say with more than a grain of salt, because we know that they have a -- a tendency to say things that may or may not be carried out. May or may not be accurate. But in fact their belligerence is helping to make our case every single day.

Countries that might have had doubts about Iranian intentions, who might have even questioned whether Iran was seeking nuclear weapons, are having those doubts dispelled as much by the evidence we present as by what comes out of the leadership of Iran.

TAPPER: Secretary Gates, just a year and a half ago you had a different boss but you had the same job. And you were expressing support for the idea that nuclear weapons can be an effective deterrent against chemical and biological weapons.

GATES (from October 28, 2008): "In the first Gulf War, we made it very clear that if Saddam used chemical or biological weapons, then the United States would keep all options on the table. We later learned that this veiled threat had the intended deterrent effect as Iraq considered its options."

TAPPER: It's a refrain that a lot of Republicans have talked about that the United States is taking things off the table that would deter other countries.

Did you change your mind?

GATES: Well I think what's happened is the situation has changed. We have more robust deterrents today, because we've added to the nuclear deterrent missile defense. And -- and with the phased adaptive approach that the president has approved, we will have significantly greater capability to deter the Iranians, because we will have a significantly greater missile defense.

We're also developing this conventional prompt global strike, which really hadn't gone anywhere in the -- in the Bush administration, but has been embraced by the new administration. That allows us to use long range missiles with conventional warheads. So we have -- we have more tools if you will in the deterrents kit bag than -- than we used to.

TAPPER: Secretary Clinton, the United States according to the nuclear posture review -- the United States will not be developing new nuclear weapons. China will. Russia will. You said, when you were running for president in 2007…

CLINTON (from August 2, 2007): "Presidents should be very careful at all times in discussing the use or non-use of nuclear weapons. Presidents since the cold war have used nuclear deterrents to keep the peace. I don't believe that any president should make any blanket statements with respect to the use or non-use of nuclear weapons."

TAPPER: Did you change your mind?

CLINTON: No, Jake. Because I think if you actually read the nuclear posture review, you would make three conclusions. First -- we intend to maintain a robust nuclear deterrent. Let no one be mistaken. The United States will defend ourselves, and defend our partners and allies. We intend to sustain that nuclear deterrent by modernizing the existing stockpile. In fact, we have $5 billion in this year's budget going into that very purpose.