April 11, 2010 -- TAPPER: Good morning, everyone. We start this morning with the announcement that Supreme Court Justice John Paul Stevens is retiring. The longest sitting justice on the court, Stevens is firmly in the liberal block, and now the president has his second Supreme Court appointment. And coming in this polarized atmosphere and an election year, the nation's capital will likely have a long, hot summer.
Joining me this morning, two senators who will play key roles in the confirmation battle, Democrat Chuck Schumer and Republican Jon Kyl, both members of the Senate Judiciary Committee. Senators, thanks so much for joining me.
KYL: Thank you, Jake.
TAPPER: Senator Kyl, we just heard you say that you are concerned about President Obama nominating what you call an overly ideological person. We know four people on the short list include Solicitor General Elena Kagan, Judge Merrick Garland, Judge Diane Wood, and Secretary of the Department of Homeland Security Janet Napolitano. Are any of them overly ideological?
KYL: It will depend upon the analysis of what they have written, what they have said, judicial decisions they've made, and what they say in hearings is when my colleagues and I, I think, would reach that conclusion. They are all nominally qualified, and again, the question I think to present is, do judges like this or candidates like this approach judging on the basis of each case presenting its unique facts and law and being decided strictly on that basis, rather than with a judge coming to the bench with an ideological position. For example, I've heard colleagues say, we want somebody who will be tough on executive powers. I've heard somebody else say, we need somebody to be tough on large corporations. No, you need somebody that will decide the case. Whether the big corporation or the executive should win a particular case depends upon the facts of the case and the law, not on the judge's ideology before that person even gets to the bench.
TAPPER: Well, let me just follow up with you for a second, Senator Kyl, because Senator Jeff Sessions, the ranking Republican on Judiciary, and other colleagues of yours, have talked about the importance of this nomination because the Supreme Court will likely hear from the states who are trying to block the federal government from requirement individual citizens to get health insurance. What will you be asking the nominee when it comes to that issue?
KYL: Well, first of all, you don't ask the nominee how he or she would rule on a case that's likely to come to the court. But you try to discern their attitudes.
I was just in a small town in Arizona. As I drove into town, I saw a sign for the reelection of a judge, reelect Judge so-and-so. He's fair. That's all you ask for, in addition to the qualifications, which I'm sure the candidate will have.
What I object to and I think my colleagues would object to is somebody that comes in with preconceived notions about how particular cases should be decided. For example, on the case of the required -- requirement that you buy insurance under the health care bill. Just decide that case based upon the reading of the law, what the precedents are and what the specific wording of the statute is. Nothing more.
TAPPER: Senator Schumer, you said in 2007 that the Senate should reverse the presumption of confirmation, and that a nominee's ideology does matter. Should Republicans adopt the Schumer principle when considering President Obama's nominee?
SCHUMER: Well, I think actually, in fact, Senator Kyl and I in terms of standard are saying the same thing. What you want is somebody who will follow the law, not make the law. Not impose their ideology, if they're far right, far left, on the law itself. If they're in the mainstream, you don't have to agree with all of their views to vote for them. I voted for hundreds of judges that George Bush nominated, and I didn't agree with their views, their judicial ideology. But as long as I thought they would follow the law, not make law, I was willing to vote for them.
And the one final thing I'd say is this. If you look at who President Obama has nominated, somebody like Judge Sotomayor, who got nine Republicans to vote for her, no one questioned that she was out of the mainstream. The other nominees in many of the courts of appeals and district courts, he chooses people in the mainstream. So I don't think there's going to be a filibuster or a blocking. And furthermore, practically, this is not a switched vote -- a swing vote in the sense that your -- having somebody, Justice Stevens, and President Obama is likely to choose somebody in Justice Stevens' image.
TAPPER: Senator Schumer, do you think that if you were giving President Obama advice, would you recommend that he go with a more moderate person ideologically, or does it matter?
SCHUMER: Well, the first and most important criterion is legal excellence, and of course I think we'll find that.
To me, there is a second criteria that matters a lot, and it's a little bit different. In my view at least, Justice Roberts has tried to move the court very far to the right, much further than we ever envisioned. I think Justice Stevens felt that in some of the opinions, dissents that he rendered. And he's been able to get Justice Kennedy to go along with some of those. So my view would be, I'd like the new nominee to be one of five, not one of four when the votes come up, and somebody who would be quite persuasive in terms of influencing other justices, I guess particularly Justice Kennedy, to his or her point of view. And that would matter to me more than -- more than any particular ideology.
TAPPER: Senator Kyl, almost the reverse question for you when it comes to the filibuster. Throughout the Bush years, you repeatedly spoke against Democrats using the filibuster. In 2008, you said this, quote, "It's been understood by both parties that you do not play politics when it comes to confirming judges, because while you may be able to stop the other party president's nominations one time, they might be able to stop yours next time. Besides which, it's not good government, it's not doing the people's business. The president was elected fair and square. He has the right to submit judicial nominees, and it's the Senate's obligation under the Constitution to act on those nominees. So are you willing to take the filibuster off the table?
KYL: I am going to abide by what became known as the rule of the gang of 14. After President Bush was elected in 2000, Democrats successfully filibustered or threatened to filibuster 12 judges on the circuit court of appeals that were nominated by President Bush, including Miguel Estrada, an extraordinarily fine individual. And that was beginning to get out of hand, and eventually 14 senators got together and said, look, we will not filibuster any judge except in extraordinary circumstances. And that's pretty much the way that it's been ever since then. And that's why I think both Chuck and I would agree that it is unlikely that there would be a filibuster, except if there is an extraordinary circumstance. I'm never going to take it off the table because of what the Democrats have achieved here, which is the possibility of a filibuster.
President Obama himself attempted to filibuster Justice Alito, who now sits on the Supreme Court. So if the president isn't going to take it off the table, I'm not going to take it off the table. But I think it can easily be avoided by appointing, frankly, the kind of person that Senator Schumer just mentioned, someone who is mainstream enough that with intellect and the application of good law can persuade colleagues to support his position or her position.
SCHUMER: And the only good news, I'd say, Jake, is I think that it's just about a certainty that the president will nominate someone in the mainstream, so the likelihood of a filibuster is tiny.
TAPPER: We only have a couple of minutes left, so I am going to exercise my prerogative against filibusters with you two, if you would, just bear with me and be very quick. I want to ask about a couple of international issues.
Senator Schumer, the Israeli newspaper "Yedioth Ahronot" quoted an anonymous confidante to President -- I'm sorry, to Prime Minister Netanyahu, calling President Obama quote, "the greatest disaster for Israel, a strategic disaster." I'm sure you have some constituents who share those views, and perhaps those concerns. Do you think that the White House has behaved towards Israel and the prime minister of Israel as you would want them to?
SCHUMER: Well, let me say this. I think everybody here in the United States, virtually everybody, and the vast majority of Israelis want peace. They're willing to accept a two-state solution. The best way to bring about that peace is let the two sides negotiate, and bring them together.
I think one of the problems we have faced in the Middle East is that too many of the Palestinians, they elected Hamas, sworn to Israel's destruction, don't really believe in peace. And I do believe that you have to let the two parties come together. If the United States imposes preconditions, particularly on the Palestinian and Arab side, they'll say, we won't come and negotiate.
TAPPER: Very quickly, Senator Kyl. You helped lead the cause of immigration reform in 2007. Senate Majority Leader Harry Reid said that he is going to bring up immigration reform. You said the other day in Yuma, Arizona, that Republicans will use the opportunity to filibuster. Are you going to help with the filibuster of immigration reform?
KYL: I don't think I said that, Jake, but what I did say is that the conditions for immigration reform no longer exist. The consensus that existed before does not exist. And among other reasons, because the administration -- this current administration has not done what's necessary to secure the border and enforce the law. We just saw the tragic death of a rancher down on the border, presumably from drug smugglers or illegal immigrants, that simply illustrates once again the fact that we have not controlled the border. And until that's done, I think it's going to be very difficult for Congress to support legislation that would be as comprehensive as that I supported three years ago.
TAPPER: OK, Senator Kyl and Schumer, thank you so much for joining us. We really appreciate it. Enjoy the rest of your weekend.
Even before news from the Supreme Court, this has been a momentous week for the president. He signed a new nuclear arms treaty with the Russians and released a new nuclear policy. Two of the main architects of the president's nuclear policy are Secretary of State Hillary Clinton and Secretary of Defense Robert Gates. I spoke with them Friday at the Pentagon.
TAPPER: Secretary Clinton, I'd like to start with you. This has been a big week for talking about deterrents. Especially deterrents against Iran. And yet we learned that Iran is announcing the third generation of centrifuges. Six times faster than the previous generation. Is Iran not saying to the United States, "We are not deterred"?
CLINTON: Well, Jake, it has been a very positive week for American foreign policy, and particularly with respect to our nuclear posture. When it comes to Iran, we take everything they say with more than a grain of salt, because we know that they have a -- a tendency to say things that may or may not be carried out. May or may not be accurate. But in fact their belligerence is helping to make our case every single day.
Countries that might have had doubts about Iranian intentions, who might have even questioned whether Iran was seeking nuclear weapons, are having those doubts dispelled as much by the evidence we present as by what comes out of the leadership of Iran.
TAPPER: Secretary Gates, just a year and a half ago you had a different boss but you had the same job. And you were expressing support for the idea that nuclear weapons can be an effective deterrent against chemical and biological weapons.
GATES (from October 28, 2008): "In the first Gulf War, we made it very clear that if Saddam used chemical or biological weapons, then the United States would keep all options on the table. We later learned that this veiled threat had the intended deterrent effect as Iraq considered its options."
TAPPER: It's a refrain that a lot of Republicans have talked about that the United States is taking things off the table that would deter other countries.
Did you change your mind?
GATES: Well I think what's happened is the situation has changed. We have more robust deterrents today, because we've added to the nuclear deterrent missile defense. And -- and with the phased adaptive approach that the president has approved, we will have significantly greater capability to deter the Iranians, because we will have a significantly greater missile defense.
We're also developing this conventional prompt global strike, which really hadn't gone anywhere in the -- in the Bush administration, but has been embraced by the new administration. That allows us to use long range missiles with conventional warheads. So we have -- we have more tools if you will in the deterrents kit bag than -- than we used to.
TAPPER: Secretary Clinton, the United States according to the nuclear posture review -- the United States will not be developing new nuclear weapons. China will. Russia will. You said, when you were running for president in 2007…
CLINTON (from August 2, 2007): "Presidents should be very careful at all times in discussing the use or non-use of nuclear weapons. Presidents since the cold war have used nuclear deterrents to keep the peace. I don't believe that any president should make any blanket statements with respect to the use or non-use of nuclear weapons."
TAPPER: Did you change your mind?
CLINTON: No, Jake. Because I think if you actually read the nuclear posture review, you would make three conclusions. First -- we intend to maintain a robust nuclear deterrent. Let no one be mistaken. The United States will defend ourselves, and defend our partners and allies. We intend to sustain that nuclear deterrent by modernizing the existing stockpile. In fact, we have $5 billion in this year's budget going into that very purpose.
We believe, and this is a collective judgment from this government that is certainly shared by the secretary of defense, the chairman of the Joint Chiefs, the secretary of energy, and the others along with the State Department who worked on this nuclear posture review, that we can have the kind of deterrent that we need by modernizing our stockpile, but not necessarily having to replace and build new nuclear weapons.
But if there is a conclusion down the road that there does have to be consideration for some kind of replacement, that decision will go to the president. We don't think that we'll get there. We think that we have more than an adequate nuclear deterrent.
And with this emphasis on our nuclear stockpile, and the stewardship program that we are engaged in, that we'll be, you know, stronger than anybody in the world as we always have been with more nuclear weapons than are needed many times over. And so we do not see this as in any way a diminishment of what we are able to do.
GATES: Let me -- let me just chime in, in this respect. The reliable replacement warhead program that existed in the past was really a means to an end. It was a means to modernizing the nuclear stockpile as Secretary Clinton says. Making it more reliable, safer, and -- and more secure. It -- that -- the policy of the Bush administration was also not to -- to -- not to add new nuclear capabilities. This was about how do you make the stockpile safer and more reliable.
The approach that we now have is -- is intended to do exactly that. It offers us a path forward, as Secretary Clinton says, in terms of reuse, refurbishment, and -- and if necessary, replacement of components. Not an entire warhead necessarily. So the chiefs, and I and -- and the directors of the nuclear labs are all very comfortable that -- that this puts us in a position to modernize the stockpile and -- and the $5 billion dollars that Hillary has referred to is actually just what's in our budget to -- for this program.
There is another big chunk of money in the Department of Energy budget for this infrastructure and modernization program as well. So we think this is a pretty robust approach to -- to sustaining and modernizing the stockpile.
TAPPER: Let's turn to the nuclear security summit that's about to start. Prime Minister Netanyahu of Israel has said he's -- he's not going to come amidst concerns that some of the Arab and Muslim countries -- Egypt and Turkey in particular -- were going to raise the worst kept secret in the world that Israel has nuclear weapons and the fact that Israel is not a signatory to the non-proliferation treaty.
Don't they have a point?
CLINTON: Well part of the goal of the nuclear security summit is to focus on the threat from nuclear terrorism. And we don't believe the threat from nuclear terrorism comes from states. Our biggest concern is that terrorists will get nuclear material. We fear North Korea and Iran, because their behavior as -- the first case, North Korea being -- already having nuclear weapons, and Iran seeking them -- is that they are unpredictable. They have an attitude toward countries like Israel, like their other neighbors in the Gulf that makes them a danger.
So we are focusing on the two states, but we are also very concerned about nuclear material falling into terrorists' hands. And that's a concern that we all share. So part of the challenge is to bring the world together as President Obama is doing in the nuclear security summit. To have everyone sign off on an agreed upon work plan that will enable us to begin to try to tie up these loose nukes, and these loose nuclear materials. To make sure they don't fall into the wrong hands.
And Israel will be represented by the deputy prime minister. And will be at the table as we begin to try to figure out how to deal with this particular problem.
TAPPER: Is that a good thing, because it would have made the summit into a -- a side show?
CLINTON: Well that's a decision for every government to make as to who comes and who doesn't come.
So the point is that countries will be represented. And the overall goal of this nuclear security summit is to make progress. I have to say, Jake, you know this is something that Secretary Gates and I have said repeatedly. You know, the threat of nuclear war -- nuclear attack as we grew up with in the Cold War has diminished. The threat of nuclear terrorism has increased. And we want to get the world's attention focused where we think it needs to be with these continuing efforts by Al Qaeda and others to get just enough nuclear material to cause terrible havoc, destruction, and loss of life somewhere in the world.
TAPPER: President Obama officials say he's contemplating presenting a peace plan to help jump start the process between the Israelis and the Palestinians. What advice do you give President Obama when it comes to whether or not he should offer a peace plan?
CLINTON: Well I never share advice that I give directly to any president.
TAPPER: Well then, hypothetically?
CLINTON: Well -- and I don't answer hypotheticals. But I will say this. That this administration from the very first day has made it clear we are committed to pursuing a path of peace in the Middle East. And to get the two parties to get to a point where they can engage in negotiations again to deal with these very difficult final status issues.
Our goal remains the resumption -- the relaunch of negotiations. Both indirect -- eventually leading to direct, and that's our focus.
TAPPER: Secretary Gates, turning to Afghanistan, when you hear President Karzai refer to the 87,000 troops under your command when you -- as occupiers, and suggest that he could envision joining the Taliban, how does that affect you? Does it make your blood boil?
GATES: Well I think, you know, this is a -- a man who's first of all a political leader. He has domestic audiences as well as foreign audiences. What I can tell you is that General McChrystal continues to meet with him regularly. They have a very positive relationship. He gets very good cooperation out of President Karzai. I think that the -- the Afghans are very concerned about their sovereignty. And they are very concerned that -- that it be clear who -- who is the president of Afghanistan.
And -- and that he be treated with respect, because he is the representative of the people of Afghanistan and their sovereignty. And I think that -- I think that that kind of cooperative relationship, certainly that he has with -- I can only speak for General McChrystal's side of it. But I think General McChrystal feels that this is a man he can work easily with. And -- and he has taken him to Kandahar. He has indicated he's willing to go to Kandahar repeatedly for the Shuras as the Kandahar campaign gets underway.
So I think that the -- that the day to day working relationship, certainly on the military side, and -- and between General McChrystal and President Karzai is -- is working well. And I think -- I think we frankly have to be sensitive in our own comments about President Karzai in terms of being mindful that he is the embodiment of sovereignty for Afghanistan also in the way we treat him.
TAPPER: Secretary Gates, WikiLeaks recently released a video that showed U.S. troops killing some civilians in Iraq. I understand the fog of war, and I understand that -- that this was a very difficult situation. Does the release of that video, and the fact that that happened damage the image of the U.S. in the world?
GATES: I don't think so. They're -- they're in a combat situation. The video doesn't show the broader picture of the -- of the firing that was going on at American troops. It's obviously a hard thing to see. It's painful to see, especially when you learn after the fact what was going on. But you -- you talked about the fog of war. These people were operating in split second situations.
And, you know, we -- we've investigated it very thoroughly. And it's -- it's unfortunate. It's clearly not helpful. But by the same token, I think -- think it should not have any lasting consequences.
TAPPER: Secretary Clinton. I -- I do want to ask you a couple of domestic questions.
First of all, there was a Supreme Court opening. What advice would you give President Obama?
CLINTON: Well I think President Obama is fully aware of this great responsibility and opportunity that Justice Stevens' retirement presents him. And as a former law professor, I know he is devoted to the Constitution. And understands the critical role that the court plays in so many areas of our -- our lives as Americans.
And I'm confident that he's going nominate a highly qualified person. And I hope that there will be a smooth confirmation, because whoever the president nominates will be qualified to sit on the court. And I think it would be really reassuring for the country to see Republicans and Democrats working together to confirm a nominee as soon as possible.
TAPPER: And lastly, healthcare reform. When you look at President Obama's success that he was able to get this done. Do you think, "Oh, that's how you do it?" Or do you think that the only way he was able to do it was because you and your husband stormed the castle first. And even if it didn't work, you laid the ground work for President Obama to help to be able to succeed?
CLINTON: Jake, I don't think either of those things. I think thank goodness. Finally the United States is going to have a system that will begin to meet the needs of all of our people, reform our insurance industry which is long overdue. Begin to control costs, which is absolutely critical. And, you know, it's been a long time coming. It goes back many decades. And I think it's an extraordinary historical achievement. And I'm delighted to, you know, have -- have seen it come to pass.
TAPPER: Secretary Clinton, Secretary Gates, thanks so much for joining us.
CLINTON: Thank you.