May 3, 2009 -- STEPHANOPOULOS: Good morning and welcome to "This Week."
Justice Souter retires.
(BEGIN VIDEO CLIP)
DAVID H. SOUTER, ASSOCIATE JUSTICE, U.S. SUPREME COURT: I find the workload of what I do sufficiently great that I undergo a sort of annual intellectual lobotomy.
PRESIDENT BARACK OBAMA: I will seek someone who understands that justice isn't about some abstract legal theory.
(END VIDEO CLIP)
STEPHANOPOULOS: As President Obama prepares to make his mark on the Supreme Court, our headliners are the senators who must ratify his choice, the chairman of the Judiciary Committee, Patrick Leahy, and its longest-serving Republican Orrin Hatch.
Then, swine flu continues to spread. Has the worst passed or is it still to come? We'll ask the federal team in charge.
And Senator Specter switches sides.
(BEGIN VIDEO CLIP)
SEN. ARLEN SPECTER, D-PA.: I've decided to be a candidate in the Democratic primary.
(END VIDEO CLIP)
STEPHANOPOULOS: What will it mean for Obama's agenda and the GOP's future? That and the rest of the week's politics on our roundtable with George Will, Gwen Ifill of PBS, Jerry Seib of the Wall Street Journal and Paul Krugman of the New York Times. And as always, the Sunday funnies.
(BEGIN VIDEO CLIP)
JAY LENO: See all those people on the news walking around wearing those surgical masks, huh? Suddenly Michael Jackson not so crazy, huh? Yes.
(END VIDEO CLIP)
STEPHANOPOULOS: By Friday, David Souter's wish to quit the Supreme Court had become Washington's worst kept secret, but President Obama stage-managed a bit of a surprise that afternoon when he crashed the daily briefing.
(BEGIN VIDEO CLIP)
OBAMA: If there's a job to do, you got to do it yourself.
(END VIDEO CLIP)
STEPHANOPOULOS: After thanking Justice Souter for his service, the president described his ideal justice -- a person of intelligence, excellence, integrity and empathy.
(BEGIN VIDEO CLIP)
OBAMA: I will seek someone who understands that justice isn't about some abstract legal theory or a footnote in a casebook. It is also about how our laws affect the daily realities of people's lives. Whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation.
(END VIDEO CLIP)
STEPHANOPOULOS: Which brings us to our headliners, Senator Patrick Leahy, the chairman of the Senate Judiciary Committee, and its former chairman, Republican Orrin Hatch.
Gentlemen, welcome to you both. And Senator Hatch, let me begin with you. What did you make of the criteria the president laid out?
HATCH: Well, it's a matter of great concern. If he's saying that he wants to pick people who will take sides -- he's also said that a judge has to be a person of empathy. What does that mean? Usually that's a code word for an activist judge.
But he also said that he's going to select judges on the basis of their personal politics, their personal feelings, their personal preferences. Now, you know, those are all code words for an activist judge, who is going to, you know, be partisan on the bench.
STEPHANOPOULOS: Now, he did also say he wants someone who respects the rule of law and the limits of the judicial role...
HATCH: He did say that.
STEPHANOPOULOS: So it sounds like you're saying that you think there's a tension between following the law and following your feelings when you're a judge.
HATCH: Well, I don't think there should be a litmus test or any set of litmus tests when you pick people for the high court, and I suspect that the president understands that. He's a very bright guy, charismatic, intelligent, likable, and I'm hoping that he'll pick somebody of great dimension.
We all know he's going to pick a more liberal justice. Their side will make sure that it's a pro-abortion justice. I don't think anybody has any illusions about that. The question is, are they qualified? Are they going to be people who will be fair to the rich, the poor, the weak, the strong, the sick, the disabled, and yet give justice to those who may not be...
STEPHANOPOULOS: Chairman Leahy, let me bring you in on this, because what Senator Hatch is saying there I've heard from a lot of other conservatives, this fear that the president's focus on empathy is a code for bringing a judicial activist to the court.
LEAHY: I've known President Obama long enough. He doesn't need to use code words. He speaks very plainly and very directly. I think that's why he won such a resounding victory in November.
I talked with President Obama shortly before he did that press conference, and I think I have a pretty good sense out of the meeting with him when I returned to Washington from Vermont -- I have a pretty good sense of what he has in mind for a justice. What I would argue...
STEPHANOPOULOS: What is it?
LEAHY: What I would argue...
HATCH: I would like to know that, Pat.
STEPHANOPOULOS: What I would argue is you walk into the Supreme Court, over the doorway there is a great big piece of Vermont marble, and engraved on it, it says "equal justice under law." That's what you want to have.
We've had a very activist court. We had an activist court that made a decision that allowed employers to covertly discriminate against women so that women wouldn't get paid equally. We in the Congress reversed that with a law, in fact, the first law that President Obama signed into law. I think he wants to have somebody to treat people all the same, whether they're Republicans, or Democrat, men, women, or whatever they may be.
STEPHANOPOULOS: Let me press on that a little bit, Senator Leahy, because you have spoken with the president about it. I just want to know a couple of things about that. Number one, did you recommend any specific candidates to the president? And number two, because others have not been shy about recommending a potential candidate. Your colleague Senator Schumer has said the president should consider -- highly consider a Latino choice. I think there is a wide expectation throughout Washington that the president will pick a woman. Is that your understanding, and does President Obama risk a backlash if he doesn't pick a woman?
LEAHY: Well, I think one of the reasons why the president and I get along well is that we have conversations; you don't hear about them. You don't read about them afterward.
I will make recommendations, some specific recommendations to him. I've also recommended that he sit down with both the Republican and Democratic leadership and talk about this.
Now, ultimately he's the one that has to make the choice of who he wants to nominate. We in the Senate then have to decide whether we will consent to that nomination, but I think he's eager to seek the advice of senators of both parties. I think he has some very -- some people that he would like to see -- the type of people he'd like to see.
Remember, he was a constitutional law professor.
STEPHANOPOULOS: I do remember that. Should it be a woman, Senator?
LEAHY: I would like to see certainly more women on the court. Having only one woman on the Supreme Court does not reflect the makeup of the United States. I think we should have more women. We should have more minorities.
I would like to see more people from outside the judicial monastery, somebody who has had some real-life experience, not just as a judge (inaudible) insulated...
STEPHANOPOULOS: Let me bring Senator Hatch back in on this, because there are a lot of names that are being bandied about right now. Three of the most prominent names that are being mentioned are two appeals court judges. Sonia Sotomayor, she serves out of New York. Also, Judge Diane Wood, serving out of Chicago, another member of the appeals court. And the new solicitor general, Elena Kagan.
And some conservatives have already taken off on these choices. Let me show one. Wendy Long from the Judicial Confirmation Network says Obama could make it even more of a far-left judicial activist court for a long time to come if he appoints radicals like Diane Wood, Sonia Sotomayor and Elena Kagan. A new justice in this mold would just entrench a bad majority for a long time."
Do you share that view?
HATCH: Well, I share the view that he should not appoint radicals to the court and I share the view that he should appoint somebody who basically will obey the law...
STEPHANOPOULOS: But are those women radicals?
HATCH: ... and not put their own policy preferences into law. And that's what bothers me about some of the comments that the president has made. He's bright enough to know that those comments basically indicate that politics, preferences, personal preferences and feelings might take the place of being impartial and deciding cases based upon the law, not upon politics.
STEPHANOPOULOS: All three of those women were confirmed to their current positions with the support of many Republicans, including you. Are they radicals?
HATCH: I don't think they're radicals, but there's no question that they are on the far left of the spectrum. And to be honest with you, I don't expect the president to pick somebody in the center or on the far right. But, you know, it would be a slam dunk if he picked somebody who was center-left like Souter. Souter became very liberal, but he also stood for a lot of principles.
STEPHANOPOULOS: You famously said -- you suggested to President Clinton that he should pick Justices Breyer and Ginsburg. You wrote about that in your book.
STEPHANOPOULOS: Do you have any recommendations for President Obama?
HATCH: No, I'm not going to make any recommendations unless he calls me. If he calls me, I'd be happy to sit down with him. We get along well. I've been out to the White House a number of times. I have a great admiration for him and his abilities. I hope that he will pick somebody who will, like I say, not put their own personal predilections into law, but follow the law and do what really is right.
STEPHANOPOULOS: Senator Leahy, let me bring you back in on this. You heard what Senator Hatch said there. Meanwhile, on the left of your party, you're hearing a lot of liberals say the president shouldn't pay any attention to the Republican Party on this pick. He should pick a full-throated liberal, someone who is really going to move the court. One example comes from Nan Aron of the president of the Alliance for Justice. She says, "Even before Senator Arlen Specter announced he was changing parties and Al Franken's Minnesota victory was clear, Republicans in Congress were losing strength as fewer voters identified with their agenda. They should not be allowed to stand in the way of a nominee who will uphold the Constitution."
Do you think the president should follow that course? Probably will have 60 votes soon. Pick someone who can get there on Democratic votes alone?
LEAHY: It takes 51 votes to confirm somebody, and I would assume that -- we never filibuster justices of the Supreme Court. We don't do it for...
STEPHANOPOULOS: You filibustered Justice Alito, didn't you?
LEAHY: No. We don't filibuster for either side, and so we have -- there's going to be a vote, up or down. I fully expect that. I think the last time there was a kind of a successful filibuster was Abe Fortas, and that was a Democratic...
STEPHANOPOULOS: Democrats did try to filibuster Justice Alito, if I remember correctly, sir.
LEAHY: There was a cursory vote that everybody knew would not succeed on the motion to proceed.
LEAHY: I mean, now we're getting down into the weeds. The fact is, Justice Alito, I did not vote for him. Senator Hatch did. He got both Democratic and Republican votes, just as Chief Justice Roberts, whom I did vote for, got both Democratic and Republican votes.
The fact of the matter is, we will have an up-or-down vote on whoever it's going to be, and I would hope that the president would go with his instincts.
Look what he's done with his Cabinet. He's had pretty darned good Cabinet choices, and I think he's going to make a very good choice here.
You will hear a lot on the far right or the far left who will say who he should or shouldn't go with. Remember, a lot of the left-wing groups picketed, actually picketed the Senate building that I'm in against me, because I was going to vote for David Souter. They said it would be terrible, the end of the world if we confirmed David Souter. Now those same groups think David Souter was a great justice.
The fact of the matter is that the president will make a good choice just as he has with his Cabinet.
STEPHANOPOULOS: He wants this in place by...
LEAHY: Then we have to vote for it.
STEPHANOPOULOS: He wants this in place by the first Monday in October, as you know, and that would mean that getting this done, he hopes, the White House hopes by the August recess. Is that possible?
LEAHY: Well, one, we certainly will have somebody in place. It would be irresponsible if we didn't have somebody in place by the beginning of the October session.
I'll decide when we'll have the hearing on the person after they have been named and after I consulted with whoever -- maybe Orrin could tell me who is going to be the ranking member...
STEPHANOPOULOS: You set me up there, Senator. I want to bring Senator Hatch back in on this.
LEAHY: On the Republican Party. But I will consult with the Republican leadership as well as the Democratic leadership. I will set a date for this, but I want to make sure everybody has a chance to see who the president's nominated and have a chance to see their background.
So, Orrin, tell me, who is going to be leading the Republicans?
STEPHANOPOULOS: Go for it, Senator.
HATCH: Let me just say one other thing. Yes, let me say one other thing...
LEAHY: It's a good question.
STEPHANOPOULOS: We're going to get an answer too.
HATCH: I'll try and answer that, but what is interesting here is that President Obama himself voted against both Roberts and Alito. Now, these are two of the best nominees I've seen in my whole time here, and I have had an influence on everybody except Stevens, and so has my friend Pat.
And that worries me a little bit. Pat voted for Roberts. He did vote against Alito, and they did want to filibuster Alito, no question about that, and it was along that vein.
Now, I suspect that Grassley has first choice to become the ranking member on Judiciary.
STEPHANOPOULOS: You actually have first choice if you seek the waiver. You're not going to seek the waiver?
HATCH: No, I do not -- well, no, of course not. But Grassley has first choice. Then Kyl if Grassley stays on Finance. And if Kyl stays in leadership, then Jeff Sessions. So any of those three could wind up being...
STEPHANOPOULOS: Are you expecting then Senator Sessions to be the ranking member?
HATCH: Well, I don't know. I know that he and Senator Grassley are trying to work out something, and we'll just have to see what happens. But I suspect any of those three will be just fine.
STEPHANOPOULOS: Terrific. Thank you both very much for your time this morning.
LEAHY: And I could work with -- I could work with any one of those -- any one of those senators. They're long-time friends. We'll work out things.
HATCH: Then why did you give me such a rough time, Pat, all those years?
STEPHANOPOULOS: You guys continue this off camera. We're out of time right now.
LEAHY: You and I worked out (inaudible).
STEPHANOPOULOS: And we are going to turn now to the swine flu. It continues to spread, but there are signs that the outbreak is smaller and less severe than first feared. Still, the government is warning against complacency.
(BEGIN VIDEO CLIP)
ANNE SCHUCHAT, CDC: In the media, we've been hearing a little bit about we're out of the woods, it looks like this is ending, and I want to say that while reports from Mexico are -- appear to be encouraging and some are cautiously optimistic, we can't afford to let down our vigilance.
(END VIDEO CLIP)
STEPHANOPOULOS: And with that, let me bring in the federal team in charge of this effort: the secretary of health and human services, Kathleen Sebelius; Homeland Security Secretary Janet Napolitano; and the acting director of the Centers for Disease Control, Dr. Richard Besser.
And, Dr. Besser, let me begin with you. I know you guys don't want to take anything for granted, but a lot of scientists who have been looking at this say there are signs that this virus is less potent, less deadly than past pandemics, and that some, older Americans especially, may have developed an immunity to this.
What can you tell us right now, your latest analysis of this virus?
BESSER: You know, what I can say is that we're seeing encouraging signs. And that's -- that makes us all very happy.
What we do when we get a virus, we look to see, does it relate to any other viruses? And then we look for things that are called virulence factors, those things that in the past have been linked to more severe disease.
And what we've found is that we're not seeing the factors that were associated with the 1918 pandemic. We're not seeing the factors that were associated with other H1N1 viruses. And that's encouraging.
STEPHANOPOULOS: Does that mean it's less likely to come back in a real strong way in the fall, as the 1918 virus did?
BESSER: We can't say that. Every virus is new. And what it will do is new. And so you're hitting a critical point. What will happen during this spring and summer? And I don't think it's time to let our guard down. I think we have to continue in an uncertain situation to be aggressive. And that's what we're doing.
STEPHANOPOULOS: Secretary Sebelius, let me bring you in on this. Of course, this leads to the question of a vaccine. I know researchers are looking at it right now. Are you prepared to say we should move to full-scale production and distribution?
SEBELIUS: Well, what's going on right now, George, are two things simultaneously. We know that seasonal flu, year-in and year- out, hits millions of Americans, 200,000 people end up in the hospital and about 36,000 people die every year.
So we are ramping up and accelerating the production of seasonal flu vaccine to make sure that we kind of clear the decks. At the same time, one of the first actions taken by the Department of Health and Human Services was to bring together the scientists: the National Institutes of Health, the Centers for Disease Control, along with the folks at Food and Drug Administration who have the oversight, with the manufacturers to begin the process to develop a vaccine for H1N1.
They've identified a virus. It's being grown and tested as we speak. And ultimately the scientists will tell us whether or not production of that vaccine makes sense.
STEPHANOPOULOS: And isn't there a trade-off there? I mean, you don't want to switch to production of the H1N1 vaccine because that could crowd out the ability to produce the seasonal flu vaccine?
SEBELIUS: Well, the good news is we're in the right seasonal time. We can accelerate the seasonal flu vaccine, which we're doing right now, to be prepared and ready for what we know will hit this fall and winter.
At the same time, we are in the stages of growing the virus, testing it, and we can be ready to do both simultaneously. This isn't an either/or.
STEPHANOPOULOS: Secretary Napolitano, the government has given out guidance for the schools on what they should be doing. If someone, as I understand it, is infected in a school, there is more than one case in a school, the school should close for up to 14 days.
But you have not yet given out formal guidance on what offices, factories, and other workplaces should do. What should they be doing?
NAPOLITANO: Well, again, I think using common sense, obviously schools you give guidance on because that's really a primary place where disease gets passed one to the next.
But we don't want to shut down the production capacity of the country for a flu when that's not necessary. What we have been telling the private sector, we've been having regular conference calls, whatever, through the private sector, is dust off your plans for how you deal with seasonal flu.
What do you do when you're absenteeism rate goes up? And what do you do for telecommuting, for example? What do you do to make sure that if you have to restrict some production, you move it to some places -- or concentrate it in some places as opposed to others? You know, every business -- every business-owner has a different way of handling this.
The number one thing is for people who are sick not to go to work. Once they don't go to work, we can begin the process of containing the spread of the virus.
STEPHANOPOULOS: And you have to get the balance right. And we've seen the variety of responses to the crisis. In Hong Kong, they closed off -- quarantined that entire hotel yesterday when there was on infection. We saw an example just the other day of a plane being grounded.
Is that an overreaction?
NAPOLITANO: You know, we take our guidance from the best that science can give us. And we have great scientists at the Centers for Disease Control. And what they told us was if you're sick you should stay home. If you have a child who is sick, you should keep that child at home.
If you have sick children in a school, you should close that school. But that's not to let all of the kids go to the mall, it's to keep them all at home. And that's the way you begin to mitigate the effect of the spread of this new flu.
STEPHANOPOULOS: Real commonsense standard.
And, Dr. Besser, let me come back to you now. You said we're not out of the woods yet. We have to be on guard. But what are the signs you're looking for to say, you know what, this isn't as bad as we feared, we are going to get through this?
BESSER: A number of things we're looking for. One is we're looking for answer for why what we're hearing coming out of Mexico looks so different from what we are seeing here initially. We're starting to get some answers there.
Here, around the country, what we're looking for is how easily does this spread? And what is the severity of disease? And we're getting answers to that as well.
STEPHANOPOULOS: And it's not spreading that easily, right?
BESSER: Well, it is spreading. It's spreading quite easily. And we have 160 reported cases, 21 states, we expect today that we're going to be confirming cases in far more states than that.
So it does spread very easily. The word out of New York City, where they had a school cluster is it spread very rapidly through that school. But what they were seeing was disease that was not that severe, and when it transmitted to people in the families, they were seeing disease that was not that severe.
And that it encouraging.
STEPHANOPOULOS: Secretary Sebelius, President Obama often talks about the problems he inherited from the past administration. He's not shy about that at all. Yet President Bush and his team did develop a national strategy for influenza coming out of the whole avian flu experience.
Is this an example where the Obama administration inherited a solution from the Bush administration? And is the strategy you're following now rooted in the Bush strategy?
SEBELIUS: Well, I don't think there is any question, the planning that has been done in the last five years has been extraordinarily helpful. States are much more prepared than they were four and five years ago with emergency plans.
The private sector has been engaged in that. In fact, the first time I met Dr. Besser was not involved in this situation, but he came to lead and led a leadership conference that -- co-hosted by Kansas and Missouri with 1,000 people from the private and public sector to talk about a pandemic flu outbreak.
So people have been prepared and ready and I don't think there is any question that President -- former President Bush had a strategy and resources were put in, and that's all very good news.
And, you know, the aggressive ability to get out in front of a virus like this is so very important. And I think President Obama made sure that his team was in place early on. That we acted on this appropriately. That we're working with public-private partnership. And that we're really ready to do what it takes to keep the American public safe and secure, which is the number one priority.
STEPHANOPOULOS: That hasn't meant, Secretary Napolitano, you've been immune from criticism. You seem to take it from all sides up on Capitol Hill this week. A lot of senators saying you should be shutting the border down right now.
Yet on talk radio, complaints that the media and others are hyping the threat. Take a look.
(BEGIN AUDIO CLIP)
RUSH LIMBAUGH, HOST, "THE RUSH LIMBAUGH SHOW": You look at the degree and the level at which the media is elevating this to a panic, and you have to say, why?
Well, because this is the kind of thing, create crisis and panic. And this has more people clamoring for the government to do something. For the government to fix it.
(END AUDIO CLIP)
STEPHANOPOULOS: Government overreach is the charge. What's the response?
NAPOLITANO: Oh, I -- you know, I -- no, not at all. When you think about where we were a week or 10 days ago, we had a new strain of flu. We didn't really know what its lethality was going to be. We didn't know how quickly it was going to move. And so we had to move. Because once you get behind flu, you can't catch up. You have to get ahead of it. And we took as our number one guide, what do the doctors tell us to do to act for the safety of the American people?
Now as we go through it every day, we can adjust because they know a little more, they know a little more, particularly they know a little more about what actually happened in Mexico.
So our guidance has been, you know, get prepared for the worst and be able to then adjust as we go through the actual cycle.
STEPHANOPOULOS: But for today, we're ahead of it?
NAPOLITANO: Today we have done, I think, everything that we could do, yes.
STEPHANOPOULOS: Thank you all very much.
(BEGIN VIDEO CLIP)
SPECTER: I have found myself increasingly at odds with the Republican philosophy and more in line with the philosophy of the Democratic Party.
SEN. HARRY REID, D-NEV.: I welcome Senator Specter and his moderate voice to our very diverse caucus.
SEN. MITCH MCCONNELL, R-KY.: Obviously we are not happy that Senator Specter has decided to become a Democrat.
OBAMA: Let me tell you, Arlen Specter is one tough hombre.
MICHAEL STEELE, RNC CHAIRMAN: This has nothing to do with philosophy and principle and all those wonderful sounding words, but it's a cold and crass political calculation.
(END VIDEO CLIP)
STEPHANOPOULOS: Michael Steele saying good riddance to Arlen Specter. Republican senator became a Democrat this week, bringing the Democrats one step closer to 60 in the Senate. Lots of different implications to that switch we're going to talk about on the roundtable today.
Let me bring in George Will, Jerry Seib of the Wall Street Journal, Paul Krugman of the New York Times and Princeton, and Gwen Ifill of PBS.
And I want to get to the Republican Party later, George, but let's begin with the implications of this for the Supreme Court. Of course, Arlen Specter was the ranking Republican on the Judiciary Committee. He's out right now. As this goes forward, we're going to learn a lot about President Obama, his party and the Republican Party.
WILL: We are. This will not change the balance on the court because this is a liberal being -- will be replaced by presumably a liberal. You may be admiring my necktie.
STEPHANOPOULOS: I love your tie.
WILL: That is the silhouette...
STEPHANOPOULOS: Tell me what it's about.
WILL: The silhouette of James Madison. This is the tie of the Federalist Society. And when I wear it on television, sleeper cells all over the country are activated...
WILL: ... to go to war. But there will be no war over this. He has a majority. He's no fool. Whoever he nominates will be confirmed. And then he may be disappointed, because Justice Souter disappointed George Herbert Walker Bush. Justice Felix Frankfurter disappointed Franklin Roosevelt. These people take on lives of their own when they get onto the court.
STEPHANOPOULOS: You know, George, you say there will be no war, so let me bring in Gwen Ifill right here. I think George is probably right on that everything we know about President Obama shows a temperate nature. Yet, he is getting a lot of pressure already from liberals who say, you know what, you've got -- you'll have 60 votes this summer. Go pick someone, even if it means getting 30 Republican no votes.
IFILL: Because that's the way it works in Washington. There's always a war, even if the outcome is predetermined about something like this.
By the way, Justices Alito and Justice Roberts did not disappoint George W. Bush, so there's a lot to be said for -- and probably a longer track record of Supreme Court nominees who do do what is expected of them. That's why...
STEPHANOPOULOS: Breyer and Ginsburg got overwhelming votes, but they turned out to be pretty steadfast liberals over there.
IFILL: Well, I don't think anybody was confused that they were going to be pretty steadfast liberals. That was at a time when people thought it was the thing to do, that unless this person, this nominee really was horrible and in some way was not worthy of the seat, you gave the president his choice. That clearly is not what happens anymore, and what really has to happen for these -- for anybody that a president nominates not to be confirmed is, you know, especially with 60 votes now, it looks like maybe perhaps in the Senate, it would take a lot more, but...
STEPHANOPOULOS: A personal problem.
IFILL: A personal problem. Something -- and even -- and there are people on the court who had personal problems who still managed to get confirmed, so it would take a lot. But I think there's still going to be a fight because there's always a fight.
STEPHANOPOULOS: Are you one of the liberals who wants a big fight?
KRUGMAN: I'm not sure I would make a fight over this. But there are people certainly who do. You know, Obama is having problems some problems with people, progressives who expected him to be more dramatically different than he is. You know, in some sense, people who are disappointed over Tim Geithner are going to be depending on a more liberal justice appointment. Obama has not -- you can say lots of good things, even progressives will, but he's not been quite the crusader for liberal causes that a lot of people had hoped he would be.
STEPHANOPOULOS: And, Jerry, I was talking to a White House official over the weekend who said the president is not looking to throw a grenade into the middle of this process, but he did lay out an interesting series of criteria, very deliberate on Friday afternoon. Everyone is focusing on the empathy, but he also talked about integrity, excellence, and respecting the rule of law.
SEIB: Right, and he used the term independence of thought as well. And you're right, everybody is focusing on empathy because nobody is quite sure what that means. It may be a code word for liberal activists, which I think Senator Hatch told you just a few minutes ago. It may mean, other people think, a sign that he wants somebody who is not out of the judicial system now, somebody with more real-world experience, a governor perhaps, or somebody who's got a sort of a nitty-gritty feel for what's happening in America today, not a judicial feel for it.
WILL: What is a liberal activist these days? Because until January 20th at noon, liberals wanted someone who would rein in presidential power. I'm not sure that's what this president wants anymore, so liberals can be situational constitutionalists too.
STEPHANOPOULOS: And then the president has said in the past if you look back at his service in the Senate, also during the campaign, that he does value people who come from outside the judiciary, on the one hand, but also that he wants someone especially who will stand up against overreaching executive power. So it's going to be a fascinating series of hearings.
But, Gwen, it also will I think set up a series of possible traps for both Democrats and Republicans. For Democrats, the risk is overreach. Trying to do too much, trying to go too far with the pick. For the Republicans, could be put in a real box especially if President Obama picks, as some people think he will, the first Latino for the Supreme Court, who happens to also be a woman. Sonia Sotomayor is only one possibility.
IFILL: And actually, that would be very tempting for the president to do that, just to put them in that box.
I find it kind of -- the whole situation to be kind of nice. It's nice to have a different litmus -- a code word, empathy instead of litmus test, which has always been a code word before, and we really never knew what that meant either. That was also one of those words or terms that was used depending on where you came from.
So yes, they're both in a box. I do agree with Paul that the liberals really would like an opportunity to push this president a little bit more, because they don't think he has been sufficiently liberal to suit their tastes, but I don't think they'll object to anything that he comes up with.
STEPHANOPOULOS: And in the short run, Paul, whoever he picks is not -- as George suggested at the top -- going to change the nature of the court dramatically unless this person has a special ability to get Justice Kennedy to switch sides on most big issues.
KRUGMAN: But think about the timeline here. Just four years ago, we were looking at, everyone was saying, we have a permanent Republican majority. We're going to have a definitive conservative Supreme Court. It's really all going to change, and all that has changed now.
So, yes, the person may not be more liberal than Souter, but the person will be younger than Souter, and so we're going to end up with -- Obama will probably get other appointments, so we're going to be looking at a court that is in fact not going to be that right-leaning court that almost everybody thought was inevitable.
STEPHANOPOULOS: And Jerry, let me pick up on that, because I know that the thinking in a lot of circles around the administration is this is the first of three picks for the president. There's actually been a very elaborate sequencing worked out. Souter decided to retire only after he checked with Ginsburg and Stevens. Next year, either Ginsburg or Stevens will retire; the year after that, the last one will go, and the president is expecting -- no guarantee -- but expecting three picks.
SEIB: I think that's right. If you would just look at the actuarial tables going into the administration and think that's a likely way to look at it, and it actually enables President Obama to kind of strategize how he picks, what kinds of people he picks, knowing that the one pick isn't the last one, it's the first of several.
But it's also worth remembering, I think, that there's still going to be a fairly young conservative block on this court, you know, the Roberts/Alito alignment. They're not going away anytime soon either, so this is going to be an interesting -- an interesting time to remake the court, or not remake the court, as you suggest.
There's one other thing I would mention here that I think has gotten relatively little attention. You cannot have this hearing at this time and not have the abortion issue come up. And it's really the first time in the Obama presidency when that -- that is going to be raised. And I'm not sure that's really what the White House wants to engage in a debate about right now, but you can't really avoid it.
I was talking with a Republican, a conservative Republican senator earlier in the week, and I asked him, I said when does abortion arise as an issue in this administration? And he said not until there is a Supreme Court vacancy, and then two days later...
STEPHANOPOULOS: The president was pretty clear Wednesday night at his press conference when this question of the Freedom of Choice Act, which would codify Roe v. Wade -- he said, listen, I'm for it, but it's just not my priority. I don't want to push it.
SEIB: Well, now, we'll see. Yes.
WILL: Well, one thing the president could do here is to do something that would break the streak now. We have nine justices who are former appellate judges, and he could go for the Earl Warren model, someone from politics.
Earl Warren famously would have a law come before him and constitutionality would be challenged and he'd say, well, is the law right? Is it nice? Is it good? Interesting questions, but not judicial questions. The question is, is it constitutional? There are lots of things that aren't right that are constitutional.
STEPHANOPOULOS: He may do that. And I have to say, as someone who has been in the middle of some of these meetings to pick a justice, that is always the first inclination at the first meeting. You want something way outside of the box, something -- someone in the Earl Warren model. And then the longer the process goes on, you go back to that appeals court just about every time. It's happened, as you say, nine times in a row.
WILL: Cautionary word -- Harriet Miers was outside the box.
STEPHANOPOULOS: Outside the box as well. Let's switch subjects now...
STEPHANOPOULOS: Another fallout from the Specter switch, obviously, the question of what does this mean for the Republican Party? There's been a lot of soul searching, even though Michael Steele and others, Gwen, saying this says a lot more about Arlen Specter than it does about the Republican Party. Yet it comes at a time, according to our Washington Post/ABC News poll, that the Republican Party is at its lowest point in more than 25 years.
IFILL: I think 21 percent of people identify as Republicans anymore, which may have something to do with just sinking party identification all around. But what's interesting about this is the refreshing nature of Arlen Specter's admission.
IFILL: He did say at some point, well, the party left me, I didn't leave the party. But then he went on to say, I looked at my polls. A politician who admits that he reads the polls -- even the president won't do that. We know that's not true.
He's admitting that he can't win. Now, what it also raises the question of is whether it's more important that he be re-elected than that the Republican Party of Pennsylvania, however it's composed, be represented. It's been a very interesting thing, because I think the real thing you can tell about how concerned Republicans are, are people like Kay Bailey Hutchison, is not a raving liberal...
STEPHANOPOULOS: Senator from Texas.
IFILL: ... who says that she's worried about it. People like Lindsay Graham, senator from South Carolina, who is not a raving liberal, who says he's worried about it, he's worried about the direction of party and what this says about it.
STEPHANOPOULOS: And you have got a whole bunch of top Republicans, including Mitt Romney, Jeb Bush, Eric Cantor of Virginia, coming together, Haley Barbour of Mississippi, coming together in a new group yesterday to talk about outreach for the Republican Party, rebranding the Republican Party. Here is Jeb Bush in Northern Virginia.
(BEGIN VIDEO CLIP)
JEB BUSH: Our ideas need to be forward-looking and relevant. I just -- I felt like there was a lot of nostalgia for the good old days in the messaging, and it's great, but it doesn't draw people towards your cause.
(END VIDEO CLIP)
STEPHANOPOULOS: The party clearly seems to be concerned at the top levels, George, of being branded as the party of no in the wake of President Obama's election, but also having a hard time. It feels like when you talk about rebranding and outreach, you're avoiding the core question. Is this a problem that Republican ideas are out of favor, or is it just a communications problem?
WILL: Well, the scale of the problem can be measured this way. It is estimated that there are 10 states with only 93 electoral votes in which the Republican Party is sort of durably strong. Now, that's a regional party is what they're becoming.
I happen to believe that no is a pretty good word in politics. Most beautiful five words in the English language are the first five words of the first amendment. "Congress shall make no law," period. But beyond that, in fact, Mr. Obama, by the clarity of his program and the energy of his program, is going to help the Republicans redefine themselves. They are going to be an opposition to this. They're going to be again a party of more limited government, and if Mr. Obama's program works, he wins. If not, the Republican revival assured.
KRUGMAN: But just think about rebranding. So who do they get together to rebrand the Republican Party? The brother of a much disliked ex-president, whose popularity has fallen since he left office, the guy who didn't get the Republican nomination. It's not a -- they don't have any very new faces to do this rebranding, and they are becoming a party that is shrinking in on itself. It's a kind of a death spiral, in which the moderates got driven out of the party, lost, and what's left is a more conservative party, which is getting further and further away from the mainstream. If Obama fails big time, maybe that works, but if not, they really have marginalized themselves.
WILL: The last time, Paul, the last time they talked about the Republicans in a death spiral was after the '64 election when Goldwater carried six states. Four years later, the Republicans began the string of winning 10, seven out of 10 elections. So these death spirals can be reversed in a hurry.
STEPHANOPOULOS: That's true, but if you go look at the example of the Democrats in the 1980s, during the age of Reagan, they had to go through a similar experience to this, Jerry Seib, and that's where you saw the Democratic Leadership Council coming up with reform ideas. But it wasn't until -- and this picks up on Paul's point -- it wasn't until there was a candidate, Bill Clinton, to carry those reform ideas forward that you actually saw the success.
SEIB: Right, and there's no obvious candidate for that spot in the Republican Party right now, but there wouldn't be at this stage of the cycle.
I think what's interesting about this particular fork in the road is that it's produced this debate among Republicans about whether the path back to health comes from having a more ideologically coherent, conservative voice that implies a narrower base, or to spread out the party and have a bigger tent. Which is the best way back to power? Is it by having clarity of ideas or a broader outreach? And I don't think that issue was resolved, and I think until it is, you are not going to know what the Republican Party that we're talking about really is going to be in the next two or three years.
STEPHANOPOULOS: And that comes back to, Gwen, the social issues. The Republicans can unify around a lot of the economic issues, around the principle of liberty. But when you bring the social issues to the table, gay marriage, abortion, the environment to some extent, that's where a lot of the young Republicans are saying, we have to have more moderation here.
IFILL: Well, and that's where the danger of those five words that George was talking about comes, because it doesn't -- there's not a period after Congress shall make no law. It continues. And -- I spent the past week in St. Louis, talking to people who kind of aren't in our bubble and are watching this very carefully, and who didn't necessarily vote for Barack Obama. I mean, Missouri is the one battleground state he didn't win. And they seem to be really patient with the possibility of government's role.
Now, they're a little nervous about the deficits, a lot of folks. They're a little nervous about the spending, but they are also saying, completely in sync with the polls we've been reading, that they think maybe this might work, or they don't know where else to go. But I don't think telling these people that we're going to say no to everything, to every possible solution is the message that Republicans really mean to send.
STEPHANOPOULOS: One of the president's solutions that's not so popular is one that he had to deal with this week, and that was the bankruptcy of Chrysler, and the president seemed quite defensive about the fact that the government was taking so many -- such a large stake in so many private businesses at his press conference on Wednesday, and he was actually asked about what kind of a shareholder he would be.
(BEGIN VIDEO CLIP)
OBAMA: I don't want to run auto companies. I don't want to run banks. I've got two wars I've got to run already. But I know that if the Japanese can design an affordable, well-designed hybrid, then doggone it, the American people should be able to do the same. So my job is to ask the auto industry, why is it you guys can't do this?
(END VIDEO CLIP)
WILL: I assume the president is talking about the Prius. It's affordable because Toyota sells it at a loss, and it can afford to sell it at a loss because it is selling twice as many gas-guzzling pickup trucks of the sort our president detests. So as an auto executive, he's off to a rocky start.
Let me ask people around this -- this question. If the UAW will own 39 percent of General Motors and the government is going to own 50 percent, how do you negotiate? You've got a government in part elected by the UAW negotiating with the UAW? And then there's Chrysler. If Chrysler is going to be owned 55 percent by the UAW, is the UAW on both sides of the table when they negotiate a contract?
KRUGMAN: Well, this is ultimately -- all of this is going to depend on the continuing inflow of money from Washington, so ultimately, you know, the government is the shareholder. And that's the point in a way.
Now, in a way, that's probably going to ensure tougher bargains, because this is tremendously unpopular. Nobody wants to do that.
STEPHANOPOULOS: The president will drive a hard bargain. The UAW had to give a lot of concessions.
KRUGMAN: We've gotten significant wage cuts here. Now, it may not be enough. There's a problem, and this is certainly not a problem -- this is not something Obama wanted to do. But it was not conceivable to just let the thing collapse without doing something, without at least delaying the process. This is I think mostly about making things move enough in slow enough motion that we might have an economic recovery before everything goes.
STEPHANOPOULOS: And Jerry, the administration considers it I think a major victory that Chrysler, they believe, will be a viable company, they hope, when it comes out of bankruptcy.
But the difficult question, I think, on both Chrysler and GM is, OK, the government is in there now, but what everyone has to figure out is the exit strategy, and no one knows what that is.
SEIB: No, and John Dingell, the congressman from Michigan, who's been around forever, told me when this all came up, he said, you know, I was a bankruptcy lawyer once. People forget how hard it is to get out of bankruptcy. It is much easier to go in than it is to get out, regardless of what people say at the moment like this when it all starts.
So I think the exit strategy is the question here. I don't know what it is. I'm not sure anybody knows what it is. But I agree with Paul. I don't think Barack Obama wants to run auto companies, but that doesn't mean he's not going to be stuck doing it for a while. And I don't think he wants to tell the auto companies how to run their business, per se, but it's pretty clear he does want to use his influence to convince them they ought to be making a different kind of car.
STEPHANOPOULOS: And in fact, it was only -- he probably only got a deal, Gwen, because he was willing to put bankruptcy on the table in a real way. And I was struck by how much leeway Michigan politicians who supported him were giving him on this.
IFILL: Well, and also I was struck by his decision to really lash out against hedge funds, which is standing in front of a microphone with all of your economic team behind you, that's not a hard thing to do, I suppose. No one knows what hedge funds are and it sounds like an evil thing. So let's say it's a bad thing...
STEPHANOPOULOS: But four times, I'm not on their side.
IFILL: Because they weren't on his side. He had no choice but to put bankruptcy on the table. It's not like the president has had a wide array of choices here in trying to stop this. Their way of looking at it, there was not an option for failure for these auto companies, and so then, if you assume there's no option, you're not going to let them collapse, then what do you do?
WILL: It seems to me that the bankruptcy we sort of tried to prepackage in the administration before it goes to court is in the subjunctive mood. It will not be final until a judge speaks, and the president's proposing overturning certain premises of bankruptcy law.
Second, we talk about an exit strategy. Thirty years ago today, Margaret Thatcher won the election that made her prime minister, and we had the retreat of the state continue for almost 30 years. Now it's been reversed in a big way, and I'm not convinced that once the political class comes to relish the pleasures of having this enormous slush fund to intervene in the economy, turning bank loans into shares in the banks, et cetera, I'm not sure they're going to want to exit at all.
KRUGMAN: I can't predict, but right now, let me tell you, they really don't want to run banks. They so badly don't want to run banks, I think it's actually kind of hamstringing their ability to deal with them. Because they don't want to go where they just went with Chrysler on the banks. And this is definitely not a socialist-minded administration.
STEPHANOPOULOS: How do you get out, though?
KRUGMAN: You know, the only thing you can say is, auto sales right now are so low that looking at the current situation is not a good guide. Right? At current rates of sales, it would take 27 years to replace the existing stock of automobiles. So we know that automobiles -- you know, cars don't last that long. So automobile sales are going to go up. So things are going to look better, even if they do nothing, even if they just hold the fort. Not enough to make these going concerns as currently structured, but maybe it is going to be easier. You know, what looks impossible now may look doable in a year.
SEIB: You know, there's an interesting political effect that you referred to briefly, George, which is that in the White House, people are sort of likening the president's willingness to use the bankruptcy threat and follow through on it here to Ronald Reagan's firing of the air traffic controllers, to say that you show toughness, it has an effect on the immediate situation and it has a ripple effect down the line. It makes people realize you're willing to do tough things. Now, it may or may not turn out that way, but there is the potential here, as messy as this current situation is, to have a sort of a broader impact.
STEPHANOPOULOS: And the hedge funds may be even less popular than the air traffic controllers were.
SEIB: That's almost certainly true.
IFILL: That's what we're counting on.
STEPHANOPOULOS: In 1981. You know, George, we only have about a minute left. The political world lost -- the Republican Party lost one of its stars overnight, Jack Kemp, of course, former congressman, former vice presidential candidate, a HUD secretary under Ronald Reagan, succumbed to cancer last night. He was a good friend of yours.
WILL: He was a good friend. He was a good friend of all people who encountered him. He was a big-hearted man, very strong convictions, but didn't know how to make an enemy and didn't know how to hold a grudge. He was just a terrific fellow.
SEIB: And always an optimist. And Gwen and I were talking before, didn't seem possible he could be 73, because he was such a youthful guy and had that youthful energy start to finish of his political career.
IFILL: I covered Jack Kemp when he was secretary of HUD and also when he ran for vice president, and he was the original happy warrior for the Republicans as opposed to the Hubert Humphrey mold. He was kind of that way. He really thought he could be elected vice president in 1996, when nobody else thought so, and he also thought he could expand the Republican Party and make a broader umbrella, something which is proven not to be so.
STEPHANOPOULOS: And one of the nicest men you'll ever meet in politics.
This roundtable is going to continue in the green room and on abcnews.com. And when we come back, more of remembering Jack Kemp.