May 16, 2010 -- TAPPER: Hello again. Breaking this morning, the White House has sent a letter to the National Archives, urging immediate release of 160,000 pages of documents from Supreme Court nominee Elena Kagan's time in the Clinton White House. This comes as she heads to Capitol Hill this week for another round of meetings to shore up her support as Republicans increase her attacks against her.
Joining me this morning exclusively, chairman of the Judiciary Committee, Democratic Senator Pat Leahy. He's at Lyndon State College in Vermont, where he will give the commencement address later today. And here with me in the studio, the top Republican from the Senate Judiciary Committee, Senator Jeff Sessions of Alabama. Thank you both, gentlemen, for joining me today.
Senator Leahy, I'll start with you. Just a quick question of timing. When do you expect these confirmation hearings to begin, around the end of June?
LEAHY: Well, I'm going to sit down this week with Senator Sessions. We'll work out a time. I think her questionnaire will probably come back in the next day or so, the questionnaire we sent from the Senate Judiciary Committee, and we'll work out a time.
Her predecessor, of course, was confirmed in two and a half weeks from the time he was nominated, Justice John Paul Stevens. I don't anticipate that, but we have a pretty good track record. Chief Justice Roberts and Justice Sotomayor ended up taking exactly the same amount of time, and we can follow a schedule roughly like that, we'll be done this summer.
TAPPER: While I have you, Senator Leahy, I want to ask you about an essay that Elena Kagan wrote for the University of Chicago Law Review in 1995, in which she criticized Supreme Court confirmation hearings. She said, they are, quote, "These hearings have presented to the public a vapid and hollow charade in which repetition of platitudes has replaced discussion of view points, and personal anecdotes have supplanted legal analysis."
Didn't she have a point? Haven't these hearings become in the last few decades a way for nominees to avoid answering questions on how they will rule on a specific issue?
LEAHY: Well, for one thing, I talked to her about that essay. She said I think I'm probably going to hear that quoted back to me a few times during the hearing. I said, starting with me. But you know, it's a doubled-edged sword. If you ask a nominee about certain burning issues of the day, they are issues that are probably going to go to the Supreme Court, and they have to be very careful not to say how they might rule on a case that's coming up. Otherwise they're going to have to recuse themselves and not be able to hear that case. On the other hand, there's only 100 people who get to vote on this lifetime nominee. We have to represent 300 million Americans, and so we have to ask as good questions as we can to make up our mind just how we're going to vote.
TAPPER: Senator Sessions, what do you want to ask her? What are you most interested in hearing from her?
SESSIONS: I think we'd like to know in a real honest sense whether her philosophy of law is so broad in her interpretation of the Constitution that you are not faithful to the Constitution and law. In other words, a judge under their oath says you serve under the Constitution, not above it. But we want to know whether she's faithfully will follow it even if she doesn't like it. And she did criticize a lack of specificity in some nominees. I thought John Roberts struck about the right tone, perhaps even more open -- was more open than Sotomayor, for example. So she's criticized the nominees and the process for not being more specific. I think we'll be looking at her testimony, because she has so little other record. This is going to be a big deal. It's so important how she testifies.
TAPPER: You have expressed concern about a step she took when she was dean at Harvard Law School, and she continued the policy of Harvard Law School of keeping military recruiters from using the Office of Career Services, although she did change that policy later in her tenure there.
The White House has said she had great relationships with veterans and with the military while dean. What's specifically your concern about this issue?
SESSIONS: I have great concerns about that. That went on for a number of years. It was a national issue. People still remember the debate about it. She -- she reversed the policy. When she became dean, they were allowing the military to come back on campus and had been for a couple of years.
TAPPER: But they were always on campus, right? They just weren't using the Office of Career Services.
SESSIONS: Well, look, yeah, this is no little bitty matter, Jake. She would not let them come to the area that does the recruiting on the campus. They had to meet with some student veterans. And this is not acceptable. It was a big error. It was a national debate. Finally, we passed the Solomon amendment. They really didn't comply with it. Eventually, she joined a brief to try to overturn the Solomon amendment, which was eventually rejected 8-0 by the United States Supreme Court, and she was not in compliance with the law at various points in her tenure, and it was because of a deep personal belief she had that this policy, which was Congress and President Clinton's policy--
TAPPER: Don't ask, don't tell, right.
SESSIONS: -- not the military soldiers' policy--
LEAHY: Could I have a word?
TAPPER: Yes, Senator Leahy, you're shaking your head. Do you disagree with Senator Sessions?
TAPPER: This is no itty bitty matter, he says.
LEAHY: Well, this is like in Shakespeare, sound and fury signifying nothing. She -- the recruiters were always on the Harvard campus. She's shown her respect for the veterans there. She every year on Veterans Day, she had a dinner for all the veterans and their families who were there at Harvard. Recruiting went on at Harvard every single day throughout the time she was-- she was there. She was trying to follow Harvard's policy. She was also trying to make sure that students who wanted to go in the military could.
Scott Brown, who is a Republican U.S. senator and a member of the Active Reserves -- he's still in the military -- he met with her and left and said he thought she had high respect for our men and women in uniform, and he had no qualms about that.
I think, let's, you know, I realize you have so many special interest groups on the far right or the far left who have points. Ignore those. We ought to make up our own mind. We should be bright enough to do it.
This recruiting thing -- if somebody wants to go in the military, they usually find a recruiter. I mean, I don't think there was a recruiting station on the campus when my youngest son went and joined the Marine Corps. He wanted to join the Marine Corps. He had no trouble finding a recruiter. And I think in this case, the recruitment went on at Harvard all the way through. This really is trying to make up something out of whole cloth.
SESSIONS: Jake, I don't agree. This is controversial at Harvard. That's one reason she began to try to meet with military to try to assuage their concerns. She disallowed them from the normal recruitment process on campus. She went out of her way to do so. She was a national leader in that, and she violated the law of the United States at various points in the process.
TAPPER: Well, let's talk about the legal aspect of it, because Chairman Leahy, Senator Sessions points out that when she was dean, she joined a friend of the court brief suing the Pentagon effectively, challenging this law, and it was rejected. That point of view and the friend of the court brief were rejected 8 to nothing by the Supreme Court. That includes Justice Ginsburg, Justice Breyer, Justice Stevens saying Elena Kagan, you're wrong, your side is wrong. Now, it was just a friend of the court brief, but doesn't that unanimous verdict basically show that Kagan was expressing her political beliefs and not looking at the rule of law?
LEAHY: You know, if we had -- if we said that any lawyer who ever filed a brief at the Supreme Court, that they couldn't serve on the Supreme Court because the case lost, half the members who are on the Supreme Court today would not be on the Supreme Court.
She stated a position. She challenged the law. The law was upheld, and she said we will follow the law at Harvard. I don't know what else you could ask for.
TAPPER: All right, I want to move on to--
LEAHY: Laws are challenged all the time. That's why we have appellate courts.
TAPPER: I want to move on to another matter. When -- during the Bork hearings, Robert Bork, Senator Sessions, was asked about his personal views of God, whether or not he believed in God. A lot of people thought those questions went too far. In the last few -- in the last week, we were told by the White House that after a blog post went up at CBSnews.com that incorrectly said that Elena Kagan was not straight -- and again, that is not true -- but Elena Kagan went to the White House, said this is not true, I am straight. How far is too far when looking into a nominee's personal life?
SESSIONS: I think you've got to be careful about that. I don't believe that is a fundamental judgment call on whether a person can be a good judge or not. We need to know how able they are to ascertain the real legal issues in a case and deciding it fairly and justly. Will they restrain their personal political views and follow the law faithfully and serve under the Constitution? That's the fundamental test in personal integrity. So those are questions that go to the heart of whether a person will be an able judge or not.
TAPPER: OK, we only have a couple more minutes. I want to ask you both about separate issues. Senator Leahy, on this program last Sunday, Attorney General Eric Holder said that the administration was going to push for changing Miranda rights. Are you concerned at all about the civil liberty implications about delaying the time before Miranda rights have to be read to a terrorist suspect?
LEAHY: Well, I sat down and talked with the president about this. The question is not whether -- centered (ph) so much on civil rights one way or the other, it's what a court will agree to. After all, it's the Supreme Court that set down basically the rules of the Miranda. Whatever changes might be made have to be made within the confines of what the United States Supreme Court has already said. I think the president and Eric Holder understand that.
Certainly there is an emergency doctrine which allows you if you had taken somebody into custody who is a terrorist to continue to question him for a period of time without them being presented to a magistrate or being given the Miranda warning. And certainly in the last several cases of people who have been apprehended, we have gotten tremendous and are continuing to get tremendous information from those people.
TAPPER: Do you think the Miranda warnings and do you think these rules need to be changed? It sounds like you don't.
LEAHY: I'm not saying that. I think you have to have maximum flexibility within the rules, but the idea that you're going to be able to pass a statute to change a constitutional ruling of the Supreme Court, you can't do that.
TAPPER: Senator Sessions, I'd be remiss if I didn't bring up the BP oil spill, given the fact that you represent one of the Gulf states. Democrats are pushing legislation that would lift the cap on how much BP has to pay for damages, not including the cleanup costs. They want to lift it from $75 million to $10 billion. Republicans have been blocking it. What is your position on this?
SESSIONS: Well, I've offered legislation -- supported legislation to expand it also. But the BP people repeatedly stated at the hearing and have told me personally, they are going to be responsible for all legitimate claims that are made against them. So I think we need to watch that closely. They signed as the responsible party. In other words, when they got the privilege to drill in the Gulf, they said we will be responsible for all damage to the beaches, all cleanup costs. Then the question is, how far beyond that do they go and other consequential economic or other damages. They have said they will be responsible for paying them. They should have more than enough money to pay them, and we expect them to pay every cent.
TAPPER: Senator Leahy, to sum up -- yeah, go ahead.
LEAHY: Jake, when the Democrats tried to put into law to make sure they could be -- they'd have to pay for it, and that big oil everywhere would have to pay for cleanup, Republicans filibustered and blocked that. Frankly, this is something where Republicans and Democrats ought to come together and not allow big oil to call the shots, but allow the law to call the shots.
TAPPER: All right. That's all the time we have. Senator Leahy, good luck with your commencement address. We'll all be watching. Senator Sessions, thanks so much for joining us.
LEAHY: Thank you.
SESSIONS: Thank you. Good to be with you.
TAPPER: As our roundtablers take their seats, here are somehighlights from recent confirmation hearings, examples of what ElenaKagan called, quote, "the real confirmation mess."
(BEGIN VIDEO CLIP)
CHIEF JUSTICE JOHN ROBERTS: I'm just absolutely prohibited fromtalking 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 foryou.
(END VIDEO CLIP)
TAPPER: And joining me now, our all-star roundtable as always.George Will, former Obama White House counsel, Greg Craig. GlennGreenwald of Salon.com. Former Bush White House Counselor EdGillespie, and Helene Cooper of the New York Times. Thanks one andall for being here.
George, I want to start with you with Elena Kagan. Is it saferthese days to pick a Supreme Court nominee who does not have much of apaper trail?
WILL: Yes, that's the lesson that was learned from the Borkhearing in late summer of '87, when in effect it was a constitutionalmoment. Because after that, the meaning of advise and consent waschanged by the practice of the Senate.
Now, her paper trail, which hitherto had been five law reviewarticles, suddenly got an awful lot longer with access to the papersshe generated as part of the White House counsel. It won't matterbecause when the same extension was made to bring Justice Roberts'papers from his service in the White House into play, all he said whensomething got controversial was, that was then, this is now. Then Ihad a client. It was the president. As a judge, I won't have aclient.
TAPPER: Greg, you've known Kagan since 1989 when you both workedtogether at Williams & Connolly, the law firm. But you also helpedshepherd the Sonia Sotomayor confirmation hearings successfully, andEd, you successfully did John Roberts. So I want to ask you, wouldyou give any different advice to her, other than keep it quiet, don'tanswer questions as much as possible?
CRAIG: I think she'll try to answer questions as honestly and ascompletely as she can. There is this rule, which I think should berespected, that you don't comment on issues that are likely to come infront of you. And that is the right way to have it, because peoplethat come before a court, litigants before the Supreme Court or othercourts, don't want to have the feeling that the judge that is rulingon 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 thequestions that were asked about this or that issue. You don't want toappear that you're prejudiced or predisposed to a decision. Ratherthan coming to the court as you should, taking every case and everydifferent dispute for its own -- on its own terms.
TAPPER: Glenn, you've been one of the more critical voices fromthe left about the Kagan pick. You want her to reveal as much as shecan.
GREENWALD: I think she absolutely should, and she herself saidthat that ought to be the obligation of anyone who wants to acquirethe rather extraordinary power of being on the Supreme Court for thenext 30 to 40 years. And the really troublesome aspect is that thisis really a nominee about whom shockingly little is known. I mean, weknow less about Elena Kagan's beliefs and views than any successfulSupreme Court in recent -- Supreme Court nominee in recent memory.And the reason is that she's advanced her career ambitions byessentially avoiding taking any positions on most of the greatpolitical and legal questions of the day. As the New York Times said,she spent decades hiding her beliefs and her philosophy from publicview.
And I think that before you put somebody on the court and vestthem with the extraordinary power that she would have if she'sconfirmed, the American people, regardless of where you fall on thepolitical spectrum, ought to demand that she divulge what her beliefsand opinions about these great constitutional and legal questions are.
TAPPER: Greg, you look like you wanted to say--
CRAIG: That's totally -- she's lived a career that's reallyextraordinary, that's been available for all people to watch and toadmire. She's a real trailblazer. She was the first woman dean ofthe Harvard Law School, the first woman solicitor general. She hasperformed this career in all three branches of the government. And so, she has got experience and qualifications that are beyondreproach. I mean, I cannot imagine a more qualified nominee in mylifetime than Elena Kagan.
TAPPER: Ed, You're laughing. But I want to say you shepherdedone successful nominee, John Roberts. And you were also there forHarriet Miers, not so successful.
TAPPER: She was also from outside the judiciary.
GILLESPIE: That's correct.
TAPPER: Faced a barrage of criticism, although she's no formerHarvard Law School dean. What similarities do you see with ElenaKagan and either Roberts or Harriet Miers?
GILLESPIE: Well, Harriet Miers had a record of litigating. Andso we saw her, you know, representing clients. And one of the thingsI think that we don't know about Elena Kagan is does she have capacityto set aside her personal views and impartially apply the law orrepresent the law? We have never seen her represent someone, forexample, in the way we saw Chief Justice Roberts during his time as atrial lawyer, represent people who may not and cases that may not jivewith his own personal views, so we know he was able to put the law andthe rights ahead of that.
We have not seen that with Elena Kagan. And the fact is, she's-- it's pretty thin gruel, in Reagan terms.
GILLESPIE: For, what, a year? And she was accredited for theSupreme Court for that job, hadn't been there (ph) before that.
CRAIG: That's the number one litigating position in the UnitedStates of America. She's litigating--
GILLESPIE: And (inaudible) she's the most qualified SupremeCourt nominee in your lifetime?
CRAIG: Well, certainly.
GILLESPIE: OK. Here's the fact is, I think she's going to haveto face a lot of questions because she's been in largely political andpolicy advocacy roles, not really judicial roles.
GILLESPIE: And I think there are legitimate questions as towhether or not her policy views; she's going to continue to try tomake policy from the bench. I think that's what Senator Sessions wasalluding to as the primary concern, I suspect you'll see, is PresidentObama looking to put a political ally on the court to sustain a lot ofhis agenda that's going to come before the court, likely, over thenext many, you know, five years, six years, seven years.
TAPPER: Helene, I want to play for you some sound. First is acommercial from the Judicial Crisis Network.
(BEGIN VIDEO CLIP)
ANNOUNCER: Elena Kagan, who, as the dean of Harvard Law School,kicked the military off-campus, incredibly, during a time of war.When Dean Kagan...
(END VIDEO CLIP)
TAPPER: There's that, and then there is also this sound fromformer House speaker Newt Gingrich, speaking last night at the NRAconvention in Charlotte, North Carolina. Here's Speaker Gingrich.
(BEGIN VIDEO CLIP)
FORMER REP. NEWT GINGRICH, R-GA.: She, as dean of the HarvardLaw School, took an effort to block the American military from theHarvard campus, all of the way to the Supreme Court, during a war.And that is an act so unbecoming an American that she should bedisqualified from the very beginning.
(END VIDEO CLIP)
TAPPER: Whoa. Now, I know the White House feels like she'sgoing to be confirmed. But it looks like Republicans are gettingready for a big fight.
COOPER: I think we should be bracing for another version of, youknow, Hollywood on the Potomac. This is what we do here in this town.And there's going to be a lot of Washington-produced drama in the nextfew weeks, as Elena Kagan goes before the Senate.
But, at the end of the day, the reality is, there was no mysteryabout this pick at all. People expected President Obama to go withElena Kagan and he did. She's been so thoroughly vetted. The WhiteHouse is feeling pretty confident at this point.
And you talk to people and they -- you know, they didn't -- theyfeel like they didn't go with, you know, somebody who's way out thereon the left or anything like that. And they've been already passingaround e-mails and that sort of stuff to people like Scott Brown andSusan Collins.
And they think they -- they pretty much seem to think they haveit in the bag. And I think, you know, we're going to hear a lot aboutthe gays in the military and Don't Ask, Don't Tell and what she -- youknow, her position at Harvard there. But, at the end of the day, thereality is, you know, she's going to be going through.
WILL: It is unfair to say that she kicked the military offHarvard's campus. Harvard did that. It is as unfair for her to say,as she repeatedly has done, that this is the military policy thatshe's objecting to.
She's objecting to the law of the United States, passed by aDemocratic Congress and signed by a Democratic president in 1993.Eighteen currently sitting Democratic senators voted for Don't Ask,Don't Tell, including Harry Reid, John Kerry, Mr. Leahy, who is heretoday, and no longer a senator, the vice president, Joe Biden.
GREENWALD: Let me just -- I mean, there are real questions aboutHarriet -- about Elena Kagan.
GREENWALD: No, to compare her to Harriet Miers is ludicrous.Her achievements -- Elena Kagan's achievements are vastly moreimpressive, as are her abilities.
And this Don't Ask, Don't Tell controversy is a complete sideshow to the real questions that are -- that should be asked. Becausemany universities have as a policy that they don't allow employersonto campus and use resources to recruit who can't certify that theyrefrain from discriminating against some of the university students.And that was the general policy that Dean Kagan applied in thatinstance. It was a perfectly appropriate thing to do.
But let me just say, about her achievements, if you look at whatDemocrats have said in the past, I mean, Patrick Leahy, when Sam Alitowas nominated, said, of course nobody contests his qualifications, buta good resume is not enough; we have to know what his beliefs are.
And Barack Obama, when Harriet Miers was nominated, said we knowremarkably little about what she thinks about the great constitutionalissues of the day, and therefore she has to tell us what she thinksbefore she should be confirmed.
And let me just ask Mr. Craig, who's a defender of hers and says,well, she's one of the most qualified nominees ever, look at the greatlegal issues that have confronted the court, Roe v. Wade; the issue ofgay rights, in terms of Bowers v. Hardwick; affirmative action; thepresident's authority in the war on terror; even the efforts by theadministration now to reduce Miranda rights and other rights thatAmerican citizens have.
Can you point to anything that she has said or written in thepast that would let Americans know what she believes about thoseissues, how she views past Supreme Court rulings on those questions?
CRAIG: What you're arguing for here is a judge and only judgesshould be on the Supreme court. And she's not a judge, so she doesn'thave the 17 years of writing opinions that Sonia Sotomayor does.
GREENWALD: But lots of law professors have written numerousthings about those questions. Has she?
CRAIG: She's written five or six law review articles. Shetaught classes...
GREENWALD: So what has she said that would enable people to knowabout those great issues that have confronted the country and thecourt, anything?
CRAIG: Yes. She's...
GREENWALD: Well, what is it? What are those things?
CRAIG: Every day, Elena Kagan has taught students, administeredlaw professors.
GREENWALD: What has she said about those issues?
CRAIG: Well, she'll answer questions about that when she's...
GREENWALD: But you're defending her. Can you tell Americanswhat she thinks about those things?
CRAIG: She's -- she is largely a progressive in the mold ofObama himself, President Obama himself.
TAPPER: Let me ask a question. Because Glenn brings up -- weonly have a little bit of time left in this segment, but it seemslike, much like other -- perhaps John Roberts is a good example -- shehas been cautious, preparing for this day, and not taken big stances.
Of course, I -- you know, when she was dean of Harvard LawSchool, maybe there were political considerations, being in that job.But has she not been cautious, perhaps hoping for this day?
WILL: Well, it's the job of senators to chip away at hercaution.
Let me show you how they can do this. One of the questions wouldbe -- we're all interested -- what would she rule on theconstitutionality of the health care mandate that's being activelylitigated around the country?
I'd just ask her, "Ms. Kagan, is it constitutional, under thecommerce clause -- would it be -- for the federal government torequire people to take calisthenics? If not, why not?"
And I think, either the commerce clause is infinitely elastic orit's not. Now, you can -- she couldn't dodge that by saying, well, Ican't -- that's currently being litigated. It's not, but it reallyis, in another sense.
TAPPER: We have to take a quick break. We're going to have alot more on this. The roundtable will continue in a moment. Andlater, the Sunday funnies.
(BEGIN VIDEO CLIP)
DAVID LETTERMAN, HOST, "THE LATE SHOW": It looks like the nextSupreme Court justice could be a New Yorker. Her name is Elena Kagan.She has never -- here's the catch -- has never argued before a judgebefore, but -- but, living in New York City, you know, she's argued incabs; she's argued in subways.
She's argued in delis. She's argued in her apartment.
(END VIDEO CLIP)
TAPPER: Coming up next, more of the "Roundtable" and the "SundayFunnies."
(BEGIN VIDEO CLIP)
DIANE SAWYER, ABC NEWS HOST: Crews moved into place with theirlatest best hope for containing the spill. But even the experts saythey don't know if it will work.
UNIDENTIFIED MALE: How much work this environmental catastrophegets is riding on how well that huge steel containment dome works.
SHEPARD SMITH, FOX NEWS HOST: A giant dome experiment ended in agiant failure.
UNIDENTIFIED MALE: Their solution for this is to try a smallerdome.
DOUG SUTTLES, BP: In a way, there's sort of multiple plan "B's."
UNIDENTIFIED MALE: If that doesn't work, later in the week,they'll try the hot tap. Next week, they'll try the junk shot,literally firing debris, golf balls and tire chards into the leakingpipe, hoping to clog it.
(END VIDEO CLIP)
TAPPER: Scenes from the environmental disaster in the Gulf, oneof the many topics we'll talk in this segment with our "Roundtable."
As always George Will, former Obama White House counsel GregCraig. Salon.com columnist Glenn Greenwald, former Bush White Housecounselor Ed Gillespie and "New York Times" reporter Helene Cooper.
One of the issues that Elena Kagan might face, if she isconfirmed to the Supreme Court, Helene, is the fact that the Obamaadministration seems to want to rewrite the Miranda rulings and howmuch time they can have before they read the terror suspect his rightsor bring them before a judge. Why are they doing this?
COOPER: There are two reasons. There's political and then thereactually is the legal reason. On the second part first, the Miranda-- the trying to rewrite Miranda, is really, I think not as big a dealas the second thing, which is the presentation.
You know, there's only so much you can do with the Miranda rightsbefore the Supreme Court would become involved. You can twiddlearound with them a little bit but then at some point it would end upat the Supreme Court and they would make a decision.
What the Obama administration really wants is more time beforethey have to take a terror suspect before a court or before a judge.There's the belief, among many people, in law enforcement that if thatinterrupts the flow of getting a confession, it interrupts the flow ofgetting information out of a terror suspect, actually physicallytaking them to a court and taking them to a judge to become arraigned.And that's where the administration would like to get a lot more time.
But then there's also the political which is, we've seen in thepast few months, two terror attacks on -- attempted attacks onAmerican soil with Abdulmutallab and now with Shahzad. And theadministration is very, very worried about after coming in to office,saying that they are going to shut down Guantanamo of actually havingsomething actually happen here in the United States, looking as ifthey haven't done enough about it. And I think that's a big part aswell.
TAPPER: Greg, why are they doing this?
CRAIG: Well I think there's concern that everybody has that whenyou have a terrorism suspect in hand, the first thing you want to dois to gather as much information from that individual as possible toprotect the public, either to find out if they are co-conspiratorsworking with them or plans for the future. So there's no disputeabout that.
The real question in my mind is whether the public safetyexception to Miranda is adequate, is flexible. Is there a real needto change the Miranda rule in order to accommodate that requirement?Let's just make it a given that you do want to have that interrogationfirst and you don't want to be bothered by courts or Miranda rules.And their only question is whether the public safety exception whichnow exists is sufficiently flexible to accommodate that requirement.
TAPPER: Do you think it is?
CRAIG: I don't know what the administration is planning to do.If the administration is planning to say we want 15 to 30 days withoutany kind of due process, then I think that's going to be a hard sell.
GILLESPIE: I agree there's a legal and political calculus herethat's going on. The legal calculus I think is an understanding bythis administration which they should get some credit. They won't sayit out loud, but the fact is what they're doing is recognizing thatthe handling of Abdulmutallab, the underwear bomber on Christmas Daywas not well done. And that they faced a problem in Mirandizing himtoo soon and that hurt their ability to get information. So they aretrying to address that.
But the political problem they have is they don't want to embracethe Bush regime and the Bush policies of setting up the enemycombatant system. And you can prosecute or can hold a U.S. citizen asan enemy combatant. We saw that upheld in the fourth circuit in thePadilla case. But they don't want to accept that.
So they're looking for a political calculus here that somehowaddresses the problems they faced on Christmas Day but doesn't acceptthe legal parameters of the Bush administration. That's a realproblem for them.
TAPPER: Glenn, what would the reaction be by the DemocraticParty if Attorney General Ashcroft had said he wanted to revise theMiranda rules?
GREENWALD: That's the real issue. I mean, the Democrats,including Barack Obama spent the last decade screaming and yellingthat what the Bush administration was radical and destructive becausethey were rewriting our system of justice and our political culture inthe name of fears of terrorism. And what you've seen since BarackObama has been inaugurated is essentially the continuation of many ofthose very same policies that he himself spent the campaign vehementlycondemning. But what's happening now is really quite remarkable,which is those Bush policies that were so controversial were largelyaimed at non-citizens.
But the most recent terrorism controversies are now being aimedat American citizens and the rights of American citizens. You havethe president authorizing an assassination program to target Americancitizens.
TAPPER: One American citizen.
GREENWALD: There are three confirmed, one of whom we know. Youhave the effort by Joe Lieberman and others to strip American citizensof their citizenship, to deny them all rights. And now you have theadministration, the Obama administration, wanting to rewrite our coreprotections of Miranda and being brought before a judge. And at somepoint the American people are going to have to say, is the response toevery terrorist attack, attempted terrorist attack to ask which rightsdo we need to give up now.
WILL: I think you're right which is we don't actually know whatthe Miranda doctrine means, particularly with the public safetyexception. Obviously there's an extreme here, 15 days, 30 days.There's two hours, here's too little. There's play in the joints asyou like to say. Why don't we just let it play out?
TAPPER: All right, well let's move on -- speaking of playingout, let's move on to politics, because we have great races forpolitical junkies playing out especially as a former Pennsylvanian, Iknow Ed, you as well, there's I have to say a bizarre race going on inPennsylvania right now.
Here is a fun little mash-up from the Web site "Talking PointsMemo." It is a combination of Arlen Specter's TV ad, who used to be aRepublican in 2004 with his ad now in 2010.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: President Obama and newspapers acrossPennsylvania agree, Arlen Specter is the real deal.
UNIDENTIFIED MALE: Specter, Bush.
GEORGE W. BUSH, FORMER PRESIDENT OF THE UNITED STATES: ArlenSpecter is the right man for the United States Senate.
OBAMA: He came to fight for the working men and women ofPennsylvania.
BUSH: I can count on this man. See, that's important.
OBAMA: He's going to fight for you regardless what the politicsare.
SEN. ARLEN SPECTER (D), PENNSYLVANIA: I'm Arlen Specter and Iapprove this message.
SPECTER: I'm Arlen Specter and I approve this message.
(END VIDEO CLIP)
TAPPER: First of all, George, why would any Democrat vote forArlen Specter?
WILL: That's an excellent question. In his fifth term as aRepublican senator at age 79, he had an epiphany which was that he'sreally a Democrat. Now when he did, to his credit, it was agreeablyfree of any pretense of principle. He said I'm going to lose unless Ichange.
He's going to lose anyway is what it comes down to because thisis the last year that you want to be "A" an incumbent, "B" anopportunist, "C," sort of flagrantly without conviction.
TAPPER: Ed, if you were Pat Toomey, the Republican senatorialnominee in Pennsylvania, would you rather run against Arlen Specter orthe legitimately progressive Democratic challenger, Congressman JoeSestak?
TAPPER: Who is a tougher general election candidate?
GILLESPIE: Tough question. I think Specter is obviouslyeminently beatable. And I agree with George, he's so eminentlybeatable, he's about to be beat in his primary. And that will leaveSestak.
Sestak is very much to the left of Pennsylvania, which, for anortheastern state, actually, has a lot of conservative leanings, andI think he's going to have a very tough time in the general electionas well.
So I don't think that obviously Toomey is not going to have achoice and I expect it's going to be Sestak at the end of the day,because Arlen Specter is clearly out there, you know, in the middle ofthe road with yellow stripes and dead armadillos, as they say.
TAPPER: Glenn, you see this, and specifically President Obama'sendorsement of Arlen Specter, as a larger institutional problem inWashington.
GREENWALD: Well, Washington basically exists to perpetuate thepower of incumbents. And so it's extraordinary to watch. ArlenSpecter, who was a Republican, and a fairly loyal and devotedRepublican. He helped the Bush agenda in all sorts of ways, besupported by the White House. People who gave money to the Democraticapparatus are having that money diverted or directed to someone whospent their life in the Republican Party and to try to defeat anactual Democrat a real progressive. And that's what Washington does.It perpetuates the power of incumbency, and that's why the Americanpeople are so largely cynical about what takes place in the city.
TAPPER: Arlen Specter is not the only one facing a toughTuesday. In Kentucky, the secretary of state, Trey Grayson, is facinga challenge from Rand Paul. He is the son of Congressman Ron Paul,and even though it is an open seat, Grayson is the secretary of state,so he's seen as the establishment candidate.
Here's the campaign ad he is running against Rand Paul, who is aTea Party candidate.
(BEGIN VIDEO CLIP)
(UNKNOWN): We live in dangerous times.
But not in Rand's world. Rand wants to decriminalize dangerousdrugs. Rand Paul even questions whether Afghanistan poses a threat tothe U.S., and supports an immediate withdrawal from Iraq.
Rand's world. Wild, wacky and dangerous.
(END VIDEO CLIP)
TAPPER: George, if Rand Paul wins on Tuesday, I would think, ifI were the Democratic candidate, I would just run Trey Grayson's ads.But can Rand Paul win?
WILL: Sure. I mean, look, there's a question as to whether ornot they know how to poll in Republican primaries in Kentucky, becausethey haven't had that many hotly contested ones. The polls are 15points apart at this point. But it seems to me --
TAPPER: With Grayson?
WILL: Grayson has polls that he says that show him tied. Andit's McConnell's poll taker who has been doing these things.
TAPPER: McConnell has endorsed Grayson.
WILL: And the voters will sort this out. But you know, it seemsto me when Ron Paul -- Rand Paul says, it's not clear that Afghanistanis crucial to our security, a lot of people in Kentucky probably say,that's not crazy, that's a sensible view.
TAPPER: Do you think this is an example of the Tea Partiersflexing their muscles yet again? What's going to happen, do youthink?
CRAIG: Well, it's not my party, and I haven't been following asclosely as your other guests here. But it seems to me a repeat ofwhat happened in Nevada with Senator Bennett.
CRAIG: I mean, sorry, Utah, with Senator Bennett, a long-standing incumbent who is thrown out in the Republican convention.
TAPPER: Is that how you see it, Helene?
COOPER: I think the whole -- this whole thing about this is areferendum, and this shows a test for the Tea Party. I think thatmight be a little overstated, because the reality is Rand Paul, a lotof his backing comes, and a lot of his stature comes from his father.I mean, he comes from a huge political background with Ron Paul, and Ithink a lot of that might be about Ron Paul and not necessarily theTea Party.
TAPPER: Ed, you're the Republican here, what's going on here?
GILLESPIE: Well, I wouldn't bet on this primary, but I would beton the general election in Kentucky. In 2010, who -- remember thenominee that emerges from the Kentucky Republican primary is going tobe the next senator from Kentucky. That's the environment that we arein today. There is clearly an anti-establishment sentiment at play,both in the, by the way, the Republican and the Democratic primaries.We see this going on in Colorado and Arkansas with Democrats, as wellas in Utah, and with -- you know, if you concede that Grayson is theestablishment candidate in Kentucky there.
But the fact is, at the end of the day, the only thing that'smore dangerous than being an incumbent today is being a Democraticincumbent today. And that's going to be the case come November.
TAPPER: Speaking of Democratic incumbents, Glenn, you wereresponsible for forming a group that helped recruit the challengerthat Senator Blanche Lincoln, the Democrat from Arkansas, is facing,Bill Halter. What is the dynamic there? Some people are saying thisis a Democratic purge of a moderate Democrat in a state where onlymoderate Democrats can win?
GREENWALD: Well, that's what people always say every time thereis a primary. I mean, in Connecticut, when Democratic voters decidedthey didn't want Joe Lieberman representing them anymore, the claimwas, oh, the far left has taken over the Democratic Party.
The reality is that people in Washington, the political class,tend to be very hostile to primaries because they threaten incumbentpower. The reality, though, is that it's the ultimate exercise indemocracy. And the people of Arkansas should be able to decidewhether they want a senator like Blanche Lincoln, who has beensubservient to lobbyists and corporate interests her whole career,continuing to represent them. And I think the real issue is that theopposition that the American citizenry has in great numbers to thepolitical class in Washington on a bipartisan basis is justifiable,given everything that the political class has done. And that ought tobe the focus, is why Americans so dissatisfied with what's going on inWashington.
WILL: I think we have a recruit to the term limits movement.No, unquestionably, it seems to me, primary challenges are wholesomeand healthy. I just don't see anything wrong with this. That's whyyou have primaries.
TAPPER: But you also think that races like the one we're seeingin Arkansas don't get as much attention by the media class, because --
WILL: It doesn't fit the narrative. The narrative isRepublicans are intolerant, not least to one another, and there's acivil war in the party, et cetera, et cetera. It's going on in theDemocratic Party as well, for which we have you to thank, I guess.
TAPPER: Let me switch to another actual civil war or potentiallyin Afghanistan. Hamid Karzai came to the White House this week, andit was after a very rough month that had existed between PresidentObama and Karzai, but they put on a good face. Here's a little clipfrom that visit.
(BEGIN VIDEO CLIP)
OBAMA: With respect to perceived tensions between the U.S.government and the Afghan government, let me begin by saying, a lot ofthem were simply overstated.
HAMID KARZAI, PRESIDENT OF AFGHANISTAN: It's not an imaginaryrelationship. It's a real relationship. There are days that we arehappy, there are days that we are not happy.
(END VIDEO CLIP)
TAPPER: Helene, we're going to probably have some days thatwe're not happy ahead of us, right, with what's going on in Kandahar,with what's still not necessarily completed in Marjah. Were thetensions overstated?
COOPER: Of course not. A lot of these tensions were generatedby the administration itself. And don't forget, you know, for somereason, it didn't seem to come up in the past week while Karzai was intown. This is a man who threatened to join the Taliban a month agowhen he said that he was under too much pressure from the West. Theseperceived tensions that President Obama talked about were coming fromhis -- well, his own administration, his ambassador to Afghanistan,General Karl Eikenberry, with the famous diplomatic cable saying thatPresident Karzai is not an adequate strategic partner.
So these tensions are definitely real. The White House now istrying to -- because Karzai has responded so poorly to the efforts ofpressuring him, are switching now to a more be-nice strategy.
But the underlying -- the fundamental tension remains, which isthat even after the U.S. military went into Marjah, which is a prettysleepy hamlet, to clear out the Taliban, there was no Afghanistangovernment there to roll out. They talk about this government in abox, and this one administration official was joking with me andsaying they opened the box and there was only one guy standing there.There's not really an Afghan government in this point and place.
And so you can't even secure, you know, clear, build and holdMarjah, which is a much smaller place, and now we're talking aboutgoing to Kandahar, which is the cultural heartland of the Taliban.It's so much more complicated. You know, you can see some realproblems ahead.
TAPPER: We only have a couple of minutes left. But Ed, you'veactually been in meetings with Karzai and President Bush. What isKarzai like?
GILLESPIE: He is a very cagey and shrewd person. And look,there's always tensions. We're a country with troops in his country.There are casualties, civilian casualties that occur from time totime. There's going to be tension. And, you know, but in the Bushadministration, we kept those in the private channel, or at leastbelow the radar. And you know, this administration, I think, got outthere way too far too fast, and they had to scurry back. Because asthey look around, you know, as you said, there is not a lot else therein Afghanistan other than Karzai to be helpful.
TAPPER: George, we only have one minute left. Is Karzai ourally? WILL: Yes. We've baptized him that, and that's all we've got isKarzai, which matters. Given the fact that clear, hold and build --we clear areas because the Taliban clears out. They know that we'regoing home. They know that they are home. Build, you can't build ifyou can't hold. You can't hold if you're coming home.
Half of the surge, small surge of 30,000 troops, has now arrived.The full surge will not be there until August. Eleven months afterthat, we are scheduled to begin the withdrawal. Now, if you're anAfghan citizen and you are asked to side with the Karzai government,what do you do? You are going to side with people who are sponsoredby an American forces that are coming home.
TAPPER: All right, well, the roundtable will continue in thegreen room on ABCNews.com. And later, check out our fact check."This Week" and Politifact have joined together to fact-check ournewsmakers, only on "This Week."