MS. IFILL: The selling of Elena Kagan, the oil spill blame game, kissing and making up with Hamid Karzai, and the perilous politics of incumbency, tonight on “Washington Week.”
PRES. BARACK OBAMA: Our solicitor general and my friend Elena Kagan. (Applause.)
SEN. JEFF SESSIONS (R-AL): It is a confirmation. It’s not a coronation.
MS. IFILL: True, but President Obama’s Supreme Court nominee is for now on a glide path.
ELENA KAGAN: Thank you so much.
MS. IFILL: But who is Elena Kagan and what would she bring to the nation’s highest court?
On Capitol Hill, another scandal, another oath, as lawmakers wrestle with the consequences of the disastrous oil spill.
SEN. LISA MURKOWSKI (R-AK): It doesn’t benefit anyone of them for BP to be pointing the finger at Transocean, to be pointing the finger at Halliburton, to be pointing the finger back at BP.
PRES. OBAMA: The American people could not have been impressed with that display and I certainly wasn’t.
MS. IFILL: So who is at fault? At the White House Afghan President Karzai gets the royal treatment but what’s happening on the battlefield?
GEN. STANLEY MCCHRYSTAL: I think I’d be prepared to say nobody is winning at this point.
MS. IFILL: And incumbents brace for what could be a rocky political season.
For Democrats –
PRES. OBAMA: We’ve gone through a stormy time and I know sometimes has made you guys a little seasick.
MS. IFILL: And Republicans.
SEN. ROBERT BENNETT (R-UT): The political atmosphere obviously has been toxic.
MS. IFILL: Covering the week: Pete Williams of NBC News, Juliet Eilperin of the “Washington Post,” Martha Raddatz of ABC news, and Charles Babington of the Associated Press.
ANNOUNCER: Award-winning reporting and analysis covering history as it happens, live from our nation’s capital this is “Washington Week” with Gwen Ifill produced in association with “National Journal.”
ANNOUNCER: Once again, live from Washington, moderator Gwen Ifill.
MS. IFILL: Good evening. Elena Kagan, nominated this week as President Obama’s second pick for the Supreme Court, would bring the number of sitting female justices to three. This is what we know about her so far. At 50 years old, she has argued six cases before the court in her 14 months as solicitor general. She served nearly six years as dean of the Harvard Law School and she also worked in the White House Counsel’s Office for Bill Clinton, as a law professor at the University of Chicago, and as a clerk for Supreme Court Justice Thurgood Marshall.
Notably, she has never been a judge -- an omission critics and some supporter have seized on. What else don’t we know about Elena Kagan, Pete?
MR. WILLIAMS: Well, we don’t know what she thinks about many of the hot-button issues that have dominated Supreme Court confirmations hearings in the past. We don’t really know her views on abortion rights or affirmative action or government power in fighting the war on terrorism or even the more day-to-day questions, search and seizure, police power, when can schools test a student for drugs.
Her academic writings have been about subjects like presidential power and free speech and in them she’s analyzing more what the law is rather than advocating what the law ought to be. So there’s not much in her writings that would give a view to her views.
Now, she did talk a little bit – in her past confirmation hearings, she gave a little glimpse of some of her ideas. She said there’s no constitutional right to same-sex marriage and she said that enemy combatants can be indefinitely detained. And one other thing, much to her regret she wrote 15 years ago that the Senate should ask Supreme Court nominees how they might vote on future cases and how they would change the court.
MS. IFILL: You covered her for those 14 months as solicitor general. You watched her arguing before the court. Now, how much does having represented the administration’s case before the court prepare you to be on the court?
MR. WILLIAMS: Well, she’ll say a fair amount. Her critics will say not at al, that it’s an entirely different task. One of the things her critics have been saying about her is that now she has to decide. She’s always been a person who’s sort of mediating, bringing people together. Now she has to say “I vote for you, I vote against you.” And so that’s – that is the criticism.
MS. EILPERIN: What does it mean that she doesn’t have the kind of experience that some of the recent appointees do when you look at the broad context of judicial experience on the bench at the high card?
MR. WILLIAMS: Judicial experience on the bench, I think we see a somewhat distorted view of this because just in the past couple of years the Supreme Court has been dominated by former judges. But if you look at all the Supreme Court justices over time, about a third of them were not judges before they came to the court. There have been 17 chief justices in the history of the Supreme Court. Eight of them never had any judicial experience before they came on the Supreme Court. So political experience used to count for a lot.
Her supporters are saying she has some, not as an elected official, but having worked in the Clinton White House as one of the top staff members.
MR. BABINGTON: Pete, you talked about the blank spaces in what we know about her. Is that a cause not to confirm her? Can Republican senators even make a case that maybe she should not be confirmed because we know so little about her?
MR. WILLIAMS: Well, that’s what indeed what many of them are saying. I think that what you’re going to find though is that there is wide support. Curiously, it’s a criticism that is coming from the left and the right. The people on the left are saying “is she going to be another Souter? We don’t really know about her. She’s a stealth nominee. We don’t know whether we can trust her to be sufficiently as liberal as John Paul Stevens is,” the justice that she’s replacing. And then of course, the conservatives are saying there’s this big hole on her background, too.
But her supporters say she’s had a lot of experience around the law. She’s a brilliant legal scholar. And no one seems to disagree with at least that point.
MS. RADDATZ: Pete, some have written about her time at Harvard and the military of it, perhaps she was antimilitary. What really happened?
MR. WILLIAMS: Well, it’s a kind of aback and forth situation. When she became the dean in 2003, she inherited the policy, which was that Harvard had an antidiscrimination policy. So in theory, the military couldn’t use the university recruiting placement center, but that was put on hold because the federal government said, “okay, then all of Harvard can’t have any research money.” So they put their antidiscrimination policy on hold. She came in, that was the policy that she adopted as dean.
Then a federal court said, “you know what, the federal government can’t threaten to do that. So then she restored the old policy. The military couldn’t use the placement center. Then the Supreme Court said, “oh, yes, the government can do that.” Bam, the policy was reversed again.
She said she’s not antimilitary. She’s given speeches in which she said that a career in the military would be one of the most honorable that she can think of.
MS. IFILL: When she went to Orrin Hatch’s office for the courtesy meeting, she noticed the framed gun that – rifle that he has on his wall and she was –
MR. WILLIAMS: She said it was gorgeous.
MS. IFILL: That’s it. (Laughter.). She’s overcompensating just a bit.
MR. WILLIAMS: We’ve all been trying to figure out what sort of a person she is. And I interviewed a woman who went to Hunter College High School in New York with her. And I said, tell me, how did she stand out. How was she different to you? And she said, well, I remember when we were about 14 years old and then we were playing charades and Elena Kagan decided to act out the Cuban missile crisis. (Laughter.)
MS. IFILL: Well, so let’s talk about what kind of person she is. There are some people who also say that what President Obama has done is basically nominate himself to the court. So the same kind of background, the same –University of Chicago, Harvard Law School, the same kind of interest in mediating and finding the middle on bringing sides together. Is there anything to that?
MR. WILLIAMS: I think there is something to that. And to look at the other people that we thought were the finalists, the people that he interviewed, if he wanted an even safer choice it probably would have been Merrick Garland, a federal judge here in Washington. Elena Kagan is sort of in the middle, and then there was amore liberal choice – two more liberal choices really, Sydney Thomas from Montana and Diane Wood from Chicago.
He did choose more of a centrist. And I suppose you can say that’s more of what Barack Obama is.
MS. IFILL: We know how you’re spending your summer, Pete
MR. WILLIAMS: That’s absolutely right.
MS. IFILL: And we know how Juliet is spending hers because the Gulf Coast oil spill has gone into such an environmental and political disaster that President Obama stepped into the Rose Garden today to issue his own harsh scolding. The companies involved are at fault, he said, but so is the federal government.
PRES. OBAMA: For too long, for a decade or more, there’s been a cozy relationship between the oil companies and the federal agency that permits them to drill. Seems as if permits were too often issued based on little more than assurances of safety from the oil companies. That cannot and will not happen anymore.
MS. IFILL: The bottom line, oil is still pouring into the gulf and no one knows when it will stop or what damage it will ultimately do. There is political damage here as well, isn’t there Juliet?
MS. EILPERIN: Absolutely. What you see is the White House who’s been working with BP fairly collaboratively, although throwing in some rhetoric to say how they have their boot on the neck, have been really trying to address this. And what’s really happening now with this ongoing leak that they feel much more defensive and this is becoming more of a referendum on the administration than it was even a week ago.
MS. IFILL: Is that why we saw him come out so strongly in the Rose Garden. I wasn’t expecting that.
MS. EILPERIN: I think one of the best explanations for that is that on Wednesday, BP released the footage of the leak under the surface and showed what’s going on and I think that
MS. IFILL: The gushing.
MS. EILPERIN: – the gushing oil coming out is really something that I think has brought it home to the public and there was more of an impetus for the administration to react than it has in a while.
MR. WILLIAMS: Can I ask you why – sorry – why it took – why the president waited so long to come out and say, “boy, this just isn’t right?” Where – I guess you could say where’s the outrage been for so long?
MS. EILPERIN: Well, I think one of the concerns, which obviously you saw him articulate today, is that when he talks about where the blame is going to be, part of it has to be on the federal government. And so for him to come out and express outrage to some extent means to invite more scrutiny of the decisions that even his administration made as well as the previous administrations.
MS. IFILL: The Minerals Management Services, the regulators.
MS. EILPERIN: Exactly, but you’ve got to look at the regulators and see whether there were lapses in oversight there that helped at least frame the conditions that could allow an accident like this to occur.
MS. RADDATZ: When you look at what’s happening on the Hill and the blame game and everywhere else, is this typical party lines, straight down party lines? Or is it – it seems to be on both sides of the aisle.
MS. EILPERIN: Yes, the interesting thing is that it hasn’t been quite as clear a partisan issue as so many political issues are nowadays. And in fact, you have people on both sides who have been criticizing the Minerals Management Service, and in fact people who’ve been supportive of some of the things the administration has done so far.
MR. BABINGTON: Juliet, it seems like this might be good timing for one thing and that’s the climate bill, that’s this big energy bill that the Democrats have been trying to get through Congress without success. And obviously one big element is alternative fuels, renewable sources of energy. Wouldn’t this disaster with petroleum be a boost to that bill?
MS. EILPERIN: You would think it would and certainly the environmental groups will say that it is, but if you look at the votes, it doesn’t seem to have shifted things. And ironically one of the things that was helping speed along the climate bill before the spill happened was the prospect of opening up more of our coasts to drilling offshore. And so with this disaster, it’s very clear the administration’s put it on hold any plans of drilling offshore that that undermined Republican support for it, including Lindsey Graham, the sole Republican who had been working actively to try to push this compromise.
MR. BABINGTON: There was sort of a tradeoff to get some Republican votes and now that tradeoff is –
MS. EILPERIN: Now that tradeoff is pretty much off the table.
MR. WILLIAMS: Can I ask another question about this that I thought is odd? I know there is this federal law passed after the Exxon Valdez accident that said that whoever is responsible for the spill is responsible for cleaning it up. And so the federal government has been kind of in this weird position of “okay, BP, give it your best shot.” Why hasn’t the federal government been more mobilized to try to do something? Does it just not have the capacity?
MS. IFILL: I just want to piggyback on that. The president using the term “cozy relationship” between government and industry was not he did that on purpose. He went out of his way to say that today. Is that part of that as well?
MS. RADDATZ: And he said before he thought it was safe – before the accident.
MS. EILPERIN: I think he frankly mentioned the cozy relationship, both because there have been revelations of the fact that this particular rig hadn’t been scrutinized as much in terms of its environmental impact and that there’ve been routine waivers given to the oil companies. So I think he was acknowledging reality is part of what he was doing. So it’s hard to see what – where it lies forward, but I think at this point he really feels like he needs to step it up and in fact because they are so limited at what they can do with these incredible debts and lack the capacity, at the end of the day, when it comes to stopping this leak, it’s BP that has to do the job.
MS. IFILL: And they’re splitting of the Mineral Management Services in half to do that?
MS. EILPERIN: We’ll have to see. One thing is that so hastily arranged that when we asked details of the policy, it’s unclear. But one of the key things is when Secretary Salazar from Interior outlined what they were going to do; they still left both the decision to allow drilling and the collection of the royalties. They’ve taken – Mineral Management Services directs more money to the Treasury than anything but the IRS. He left that in the same office. And so there’s still some sort of conflict of interests that would be there.
MS. IFILL: Okay, thanks Juliet. Well, it was all sweetness and light in Washington this week when Afghan President Hamid Karzai came to town. He was welcomed by Secretary of State Clinton. He was wooed by the president. And he was treated with great respect by Defense Secretary Robert Gates. But did any of that change trajectory of what continues to be a difficult conflict? Martha’s just back from Afghanistan again. How does his visit here resonate there?
MS. RADDATZ: Well, I think – people were looking – I actually asked a lot of people while I was there what they thought of the visit. And what they would say immediately is “we need more help from the United States.” But I still think there is such a strong feeling that the Karzai government is corrupt. It doesn’t really matter to them that there is all this coziness in the United States. What’s happening on the ground to them hasn’t changed much. And I think if you look – and there was a recent Defense Department study that showed of the 120 districts where it’s key, where if Stan McChrystal, who heads all the forces over there, said “you have to do better there,” only a quarter of them viewed the government favorably. So for them it doesn’t really matter what’s happening here. It matters what’s happening there.
MS. IFILL: It doesn’t seem like we really secretly view it very favorably either. Whenever anyone was asked, “well do you trust Hamid Karzai,” administration officials would say, “well, he’s in charge.”
MS. RADDATZ: He’s not an adequate strategic partner, is what Ambassador Eikenberry said. I think this was an example of well –
MS. IFILL: Some weeks ago, by the way, he said that. He’s not saying that anymore.
MS. RADDATZ: No, he’s not saying that anymore. I was going to say that that’s the strategy they tried before and pressure Karzai – I was on President Obama’s trip to Afghanistan and that’s when all this started, really -- the real pressure. That didn’t work out so well so let’s bring him here and try the cozy and light. And whether that will make a difference, I think it will make a difference to Karzai right now because he won’t be as angry with the United States, but whether it makes a difference in the long run.
MR. BABINGTON: Martha isn’t Kandahar, the big city in the south – tell us what’s happening there because it’s either already happening or about to happen. That’s a real source of focus for the allies.
MS. RADDATZ: It’s a complete focus. And I spent a little time in Kandahar this week or last week as well. And what Stan McChrystal is stressing, what everybody is stressing is that this will not be a big offensive. Someone said, “it will be a process.” It’s not an offensive. It’s not a big overtaking. It’s not Fallujah. It’s not even Marja. What they don’t want is for the population to feel like they’re being invaded. But I think already what you see is Special Operations troops going in and trying to find Taliban, to try to root out whoever is in there now, so they can do this gradually. It’s been described to me as it will be sort of a rising tide. It will be nothing sudden. It will last throughout this summer. But this is a key, key, key battle, if I can say battle, because they have to be successful there. Stan McChrystal said they have to be successful there and they may not know whether they’re successful there until the end of the year.
MR. WILLIAMS: Have to be successful there or what?
MS. RADDATZ: Or they just can’t make any progress. This may fail. I don’t think anybody’s saying fail. They don’t want to say that yet, but if they can’t show success there, if they can’t show some progress there, they’re in real trouble.
MS. IFILL: And the July, 2011, pullout – that is threatened?
MS. RADDATZ: Yes, that’s a real good question, Gwen, because the more people I talk to in the military, on the street, they’re saying it’s absurd to think that you can start pulling out. Now, as I said to one member of the military who said – now, wait a minute, he said, they could start the pullout. That could be just you. Nobody else will go home and they can stand by their promise –
MS. IFILL: It sounded a lot –
MS. RADDATZ: – yes, I think that’s probably what you’ll see.
MS. EILPERIN: Martha, we’ve talked about the military and the diplomatic strategy, what about the civilians that have gone over there at the request of the State Department? Have they made a real difference on the ground?
MS. RADDATZ: I think there were 300 civilians on the ground and I remember everybody saying, isn’t that great? We’ve got 300 civilians on the ground. It’s like really? We’ve got 85,000 military personnel on the ground and you’re saying you can’t win by military alone. Now they have about 1,000 civilians on the ground. They’re trying. That’s what I’ll say. They’re trying, but there’s really no – the problem in Marjah, the other offensive, is there was really no governance to back up the military campaign and you have to have civilians out there to help. Really they’re trying. Really they’ve obviously grown over there, but there’s a long way to go.
MR. BABINGTON: Their role is to try to help institute some type of government?
MS. RADDATZ: Their role is to get out there and help civil relations and help everything they can that the military can’t do. And just the numbers alone – it may be an increase but 1,000 is not very many people.
MS. IFILL: It seems if you really want to kiss and make up with Karzai, you have to be willing to look the other way on a couple of things. One is corruption that you mentioned. The other is Iran. And the other is the Taliban and his determination to involve them in his government. Is that what’s happening?
MS. RADDATZ: I think they’re looking the other way on a lot of issues, particularly his brother, who’s down in Kandahar. And basically what Karzai said this week and he said, I brought it up with President Obama. He didn’t even have to bring it up with me. He probably didn’t, because he probably just looked him in the eye and he knew what he was talking about. But the brother is considered incredibly corrupt down in Kandahar. And that’s something clearly the U.S. is just, okay, we’ll give you that one.
MS. IFILL: I heard him quoted this week – Karzai as saying, I don’t have the power to fire my brother.
MS. RADDATZ: Exactly. Of course not. No. Who does?
MS. IFILL: Who does really? Well the midterm election campaign gets a jump-start next week with critical voting in Pennsylvania, Arkansas, and Kentucky.
REP. JOHN BOEHNER (R-OH): It’s politicians beware. The American people are awake. They’re more involved in their government that at any time in our history.
SPEAKER NANCY PELOSI: They think all assumptions are false when it comes to politics. I really do. They’re all stale and every race has to be judged as to what it brings to it.
MS. IFILL: Given the way things are unfolding for incumbents and on issues like oil drilling and immigration, who’s right in this, Nancy Pelosi or John Boehner? I dare you to pick one.
MR. BABINGTON: You know what? What they said was not mutually exclusive. So I think in a way they’re both right. There’s a lot of ferment. There’s a lot of unrest out in our country in the electorate. We’re starting to see some of that in some of the very early voting in primaries that are starting to happen. You’re seeing it in polls too. For example that controversial immigration bill out of Arizona turns out to be very popular with most Americans. Sure, if somebody looks like illegal, check him out. So that’s –
MS. IFILL: Exceeded 70 percent, I saw.
MR. BABINGTON: Seventy three percent in one case that I saw. For President Obama, his approval rating still tends to hold, not so bad, right around 50 percent, but the wrong track, right track levels are very bad. So there’s just a lot of restlessness and I’ll tell you. The people who were on the ballot in November are really nervous.
MR. WILLIAMS: Chuck, for decades, I guess centuries it’s been a political stable here to say look at the bacon I’ve brought home to the district. I heard Bob Bennett on NPR this week saying people in Utah don’t want to hear about that. They don’t want to hear about the bacon you brought home. That seems to me a substantive change.
MR. BABINGTON: It is a substantive change, Pete. We’ll see, as the year goes on, how widespread it is. But for example, Bob Bennett, the senator from Utah, known as an appropriator who did earmarks or pork barrel. Alan Mollohan, who’s a long-time congressman out of West Virginia, same thing – he’s a Democrat. Both of them lost, for somewhat different reasons. But that didn’t help them a bit. Arlen Specter, who’s really in a tough race in Pennsylvania – I’ve followed him around in campaigns. It’s fascinating to watch him. Every stop the first thing he says every time is, I got this for your district and I got this for your district. And I don’t know if that’s working anymore because what Senator Jim DeMint, who’s a darling of the tea party movement, said people don’t want to hear that even in their own district.
MS. IFILL: Arlen Specter is losing the – or struggling in a Democratic primary to a Democrat who’s to his left. Not the right that’s taking it out.
MR. BABINGTON: Well, of course, Gwen, Arlen Specter was a Republican for nearly 30 years. He realized he wanted to run for a sixth term. He realized he probably could not win the Republican nomination. He switched parties. Remember, that was a year ago. It gave the 60th vote to the Democrats so they could stop Republican filibusters. Barack Obama, Governor Ed Rendell, all bought in on this deal. And they said, we’ll make it – clear your way, so you can be the Democratic nominee. And Congressman Joe Sestak said, “not so fast. I’m the real Democrat here.” Sestak has been behind in the polls consistently until quite recently. And all of a sudden he’s either tied or ahead of him in the polls.
MS. RADDATZ: What really is happening here? Is it an anti-incumbent? What are you seeing here that brings this all together in what’s happening?
MR. BABINGTON: I think, Martha, more than anti-incumbency what we seem to be seeing is a resentment of what people see as elitism or too much establishment – I’ll tell you what to do. In Pennsylvania, Democratic voters are saying “wait a minute. President Obama and Governor Rendell, you’re telling me that – if I’m a Democratic voter – that my nominee has to be this guy who’s been working against us for 30 years? I don’t think so.” And what I’m hearing is that this is a year for politicians to be humble and to say maybe I’ve made some mistakes.
MS. EILPERIN: And when you look at that, I’m curious of what that means for someone like Senate Minority Leader Mitch McConnell, who obviously is eager to see what happens in November, but clearly has a stake in the open seat primary that we’re going to see next week. What does it mean for leaders – in Kentucky – and what do you think are the dynamics in an open seat rather than if you’re looking at Senator Blanche Lincoln from Arkansas or something else?
MR. BABINGTON: Well, next Tuesday, if Pennsylvania is going to be a great test for the Democratic Party, then Kentucky will be a great test for the Republican Party in the establishment. It’s an open seat. Mitch McConnell, the highest ranking Republican in the Senate has endorsed Trey Grayson. That’s my candidate. He’s kind of the establishment guy. And Rand Paul, whose father is Ron Paul, who many will remember ran for president, is again saying, “not so fast. He’s the insurgent.” And Paul showed him quite a bit of it. So it is again a case of the establishment politicians and establishment powers are really struggling thus far.
MS. EILPERIN: And what’s that going to mean for Democrats in the fall? It’s a candidate more to the right, if it’s Paul who wins.
MS. IFILL: And are they bracing for that in any way. Are they preparing for that?
MR. BABINGTON: The Democrats do have an active primary. And that will be decided Tuesday as well. Kentucky is a pretty Republican state. That would be – if the Democrats could win that, that would be amazing.
MS. IFILL: Okay, well, thank you everybody. We’ll have full coverage of all those election results next week. Our conversation will end here, but it continues online. Check out our “Washington Week” Webcast for the stuff we didn’t get to here, including we’ll talk a little bit more about that Arkansas race with Blanche Lincoln and how she’s trying to survive against someone who’s running to her left. It’s amazing. That’s all at pbs.org/washingtonweek. Stay on top of daily developments at the PBS “NewsHour.” And we’ll see you here again next week on “Washington Week.” Good night.