MS. IFILL: Elena Kagan at the Senate Judiciary Committee. The Supreme Court rules on gun safety, the struggling economy, plus everything else on the president’s plate and remembering Senator Robert Byrd, tonight on “Washington Week.”
SEN. HERB KOHL (D-WI): Your judicial philosophy is almost invisible to us.
SEN. JEFF SESSIONS (R-AL): I’m just a little taken aback by the tone of your remarks because it’s unconnected to reality.
SEN. CHARLES GRASSLEY (R-IA): Is it appropriate for judge to mold and steer the law?
ELENA KAGAN [Supreme Court Nominee]: It’s dangerous to write papers about the law before you’ve spent a day in law school.
MS. IFILL: The familiar thrust and parry of Supreme Court confirmation hearings – what did it tell us about nominee Elena Kagan?
MS. KAGAN: Senator Kyl, I would not want to characterize the current court in any way. I hope one day to join it.
MS. IFILL: And what did the court’s action on gun rights this week tell us about the bench she is likely to join?
WAYNE LAPIERRE. President, NRA: Do law abiding citizens have the right to go out and buy and own a gun for self-protection or any lawful purpose? And the court today said, yes.
PAUL HELMKE, President, Brady Campaign to Prevent Gun Violence: We need to put the bad guys away and that means we need to make it harder for dangerous people to get the guns.
MS. IFILL: But the court was not the week’s only story for the White House there was difficult news on jobs. Better news on Wall Street reform. Negotiations on climate change, immigration. And the curious case of the Russian spy ring. Plus the passing of Senator Robert C. Byrd. Covering the week: Pete Williams of NBC News; Joan Biskupic of USA Today; David Wessel of the Wall Street Journal; and Peter Baker of the New York Times.
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 from Washington, moderator Gwen Ifill.
MS. IFILL: Good evening. In what is becoming a summertime ritual here in Washington, the Supreme Court held center stage this last week in June. Solicitor General Elena Kagan, a former Harvard Law School dean, faced down her critics for three days and the court itself faced down a Second Amendment challenge. For Kagan, that also meant revealing an unexpected skill as part-time standup comic.
SEN. LINDSEY GRAHAM (R-SC): Christmas Day bomber – where were you at on Christmas Day?
MS. KAGAN: I’m assuming that the question you mean is whether a person who was apprehended in the United States is –
SEN. GRAHAM: No. I just asked you where you were at on Christmas. (Laughter.)
MS. KAGAN: You know, like all Jews, I was probably at a Chinese restaurant. (Laughter.)
SEN. GRAHAM: Great answer. (Applause.)
MS. IFILL: If you have to explain that joke, it’s not a good joke. But contrary to that, Kagan’s Republican critics were deadly serious, taking sustained aims at what they saw as her liberal credentials questioning her decision to limit access for military recruiters at Harvard.
SEN. JEFF SESSIONS (R-AL): You were taking steps to treat them in a second class way, not give them the same equal access because you deeply opposed that policy.
MS. KAGAN: And we were trying to do two things. We were trying to make sure that military recruiters had full and complete access to our students, but we were also trying to protect our own anti-discrimination policy.
MS. IFILL: And repeatedly they questioned her ties to Thurgood Marshall, the justice for whom she once clerked.
SEN. JON KYL (R-AZ): Justice Marshall’s judicial philosophy, however, is not what I would consider to be mainstream. As he once explained, you do what you think is right and let the law catch up. He might be the epitome of a results-oriented judge.
MS. KAGAN: I just love Justice Marshall. He did an enormous amount for me. But if you confirm me to this position, you’ll get Justice Kagan. You won’t get Justice Marshall.
MS. IFILL: So in the end, Pete, how did she do?
MR. WILLIAMS: I think if demonstrating a commanding grasp of the law and being relaxed and confident enough to joke with senators is what it takes to get confirmed, then she aced this test. If, on the other hand, the standard is one she set herself in a 1995 book review about Supreme Court hearings, then she probably failed it because she simply said that decisions on abortion, gun control, Congress’ power over commerce and all that sort of thing were settled law without really expanding it.
And I think much of this hearing was not about her because the Republican spent a lot of time saying that the court has been too activist in the past but now it’s probably not going to be activist enough when the healthcare bill gets up there and the Democrats seem to spend most of their time complaining about the Roberts court and how conservative it is in the decision on campaign finance and contributions. The Democrats seem to say that they were unhappy with the past performance of nominees and worried about this one. They said that they got snookered by John Roberts because he came up there and said he was a moderate. Now he isn’t. The Republicans said, well Sonia Sotomayor did the same thing to us because she said it’s clear that there is a right to defend yourself and the Second Amendment to have a gun and then she voted the other way. So that was a lot of how the hearing went.
And ultimately, Kagan did not want to criticize this court and she said, even on controversial decisions, well, you know, the court’s acting in good faith.
MS. IFILL: You know, for many of us who have never really gotten to know Elena Kagan in any way, we’ve never seen her in action before. But you’ve seen her at least since she’s been solicitor general, both of you, up at the court. How was this different or the same as what you’ve seen?
MS. BISKUPIC: Well, it was interesting. And a couple of times she lapsed. Instead of saying, Senator Cornyn, Justice Cornyn, because it was almost like she was under fire as she is at the court. She’s obviously incredibly quick on her feet, very smart, able to give a sharp, articulated answer that makes the questioner feel like he – and there are mostly hes up there – he or she has gotten an answer. Only with Senator Specter of Pennsylvania did you see a lot of frustration in terms of her answers. It’s almost in the senators’ interest to act like they’re getting their questions answered because they don’t want to walk away saying, I really was ineffectual getting an answer out of her.
MR. WILLIAMS: Right. That’s the one thing. The court has no tolerance whatsoever for people who are not right with them. And occasionally, her attempts at humor have not always worked in the Supreme Court. They were winners every time in the Senate.
MR. BAKER: Now, she was of course the first nominee to go before the Judiciary Committee in a long time who’s not been a judge and there was this talk about whether or not she’s really qualified because she wasn’t. How did that question come up? How did she address that issue?
MR. WILLIAMS: That sort of faded. I think it was big on day one, had a half life on day two and it was gone by day three because when she was getting onto nine-part answers with three subparts and footnotes, they were clearly impressed that she knew the law. Dianne Feinstein, at one point, a Democratic obviously, but still said, you know, you have a commanding ability to organize your answers. I think she dazzled them and there was no question that she had a firm grasp of the law.
MS. BISKUPIC: And didn’t it make it easier for her to resist any kind of question that they would ask as a follow-up, because there was nothing they could point to. If she said, well, this is what I think now or this is what the law is, they had no document to say, but in this ruling, you had said –
MS. IFILL: So it’s got to be an advantage to not have that much experience.
MS. BISKUPIC: Oh, completely.
MR. WESSEL: So you both watched the hearings the whole time. Is it worth it? Do we learn anything about the philosophy of this woman? Is it a waste of time to run these hearings?
MS. IFILL: And how is she – if she is confirmed, as expected, how would she fit into this court that we see now?
MR. WILLIAMS: Well, I mean, as to whether it’s a waste of time, I guess is depends on what your standard for these hearings is. There’s a little bit of an irony here because people always want to say, well, you know, we don’t want activist judges. We just want judged who will follow the law and the facts of the case, but tell us how you’re going to decide these cases in advance. So you can’t have it both ways. So these hearings are sort of no win for everybody.
But, you know, she was commanding, I think you’d have to say. In terms of how she’ll fit into the court, I think it’s fair to say that she will not suffer from freshman shyness too much once she gets to the Supreme Court. And in terms of whether she will be confirmed or not, everybody seems to think that she will. The conservatives set out a goal of having her with somewhat fewer votes than Sonia Sotomayor got, which was 68, but more than Alito got, which was 58. There have been a few things that have changed since the hearing. The National Rifle Association opposed her and said they would grade how they voted on it. That will hurt her with some Republicans. And Orrin Hatch came out and said he would vote against her too.
MS. IFILL: Any Republicans who are likely to vote for her like Lindsey Graham who’s –
MS. BISKUPIC: Lindsey Graham did last time for Sonia Sotomayor. I think, oh, definitely on the floor –
MS. IFILL: Yes. Yes.
MS. BISKUPIC: – we’ll have floor votes, maybe one or two out of the committee. But she’s in.
MS. IFILL: Okay. Thank you. While Kagan hit her marks on Capitol Hill, the work of the court continued. The end of the term also brought an end to 35 years on the court for Justice Paul Stevens, John Paul Stevens. And it brought the usual last minute rush of big decisions including one that limits the ability of cities like Chicago to ban handguns. It was a victory for the NRA and a defeat for proponents of gun control. But what did this decision tell us about the Roberts court that Kagan is likely to join, Joan?
MS. BISKUPIC: It’s a good question, Gwen, because it did show us on that last day another five-four ideological divided decision that has some pattern on this court but also some exceptions and enough exceptions that Elena Kagan is going to have some running room when she joins the court. But first, on the guns decision, the Justices ruled with the conservative majority controlling that the Second Amendment right to individual possession of guns is a right that extends to all the states. The ruling this week picked up from a 2008 one where the justices, for the first time, the same five conservative justices ruling, said that there is an individual right to bear arms in the Second Amendment. You know, a lot of people forget that for decades, the wisdom among most of the nation’s judges was that the Second Amendment covered only a state militia right, for example, for the National Guard, even though must public opinion was that we have an individual right to bear arms. Well, in 2008, the Supreme Court essentially kind of caught up with that view. And this ruling extended that right to individuals against state and city regulation. The first case in 2008 involved only federal laws that might curtail –
MR. WILLIAMS: In the District of Columbia, city ordinance in the District of Columbia.
MS. BISKUPIC: Right but it was just for federal laws. But Samuel Alito wrote the opinion and he said it’s a fundamental right to American liberty and the dissenting justices led by Justice John Paul Stevens said, you know, firearms are different. This kind of right you might be able to defend yourself in your home with a firearm. That’s what the individuals from Chicago were saying who wanted the right to bear arms in Chicago. You might be able to use a firearm to defend yourself in your home but some thug might also be able to use a firearm to murder you. And so it cuts both way.
MS. IFILL: Mayor Daley in Chicago came out and said that this renders the Chicago law unenforceable. Does that mean that they have to start from scratch or is there something more narrow that they can come up with?
MR. WILLIAMS: Well, it does mean they have to start from scratch but it also means that – they’ve already said – look, we understand. We can’t flat out ban handguns but we’re going to make it really hard for you to get one and that may the next round of litigation here is how can cities require registration, test firing of guns, do you have to take a test to show your proficiency? New York City has a similar kind of law that makes it hard to get guns so that may be next. And then we’ll get into laws about conceal/carry. There’s going to be a lot to litigation on this.
MR. BAKER: You mentioned John Paul Stevens – of course, this is his last day on the court and the last day of the first term of Sonia Sotomayor. What did we learn about both of them at this point?
MS. BISKUPIC: Yes, well, it was after almost 35 years Justice John Paul Stevens retired, he gave a very poignant statement from the bench about, well, maybe I’ve overstayed my welcome but I’ve enjoyed every day. And he is very much beloved by his colleagues. What we saw in both Justice Stevens and Justice Sotomayor was a liberal alliance. Justice Sotomayor who succeeded David Soutor who retired last year has pretty much voted the way we would have expected David Soutor to vote. She’s been consistent as a liberal. And Justice Stevens who came on as an appointee in 1975 as Gerald Ford turned out to be the leading liberal on the court. But this term, Gwen, getting back to your question about how any of these decisions sort of define the whole court, Justice Stevens broke off from some of his liberal colleagues on a couple of decisions that shows that they’re not always as predictable as sometimes we like to cast them.
MR. WESSEL: Do you think we’re going to get another retirement for President Obama to fill?
MS. BISKUPIC: Well, I really don’t want this to become every summer, what do you think? (Laughter.)
MS. IFILL: What do you think?
MS. BISKUPIC: I don’t think so.
MR. WESSEL: You’re increasing your productivity.
MS. BISKUPIC: Yes, you’re right. Justice Ruth Bader Ginsburg would be the next senior one to retire. And in fact, she survived two serious bouts with cancer but she has said she wants many, many more years ahead of her on the court. So helpfully we will not.
MS. IFILL: It’s interesting. I see that Justice Scalia has been quoted as saying he likeS Elena Kagan and that he could imagine her on the court. Are they fit to battle each other?
MR. WILLIAMS: I think they are. But, you know, it’s funny. Ruth Bader Ginsburg and Antonin Scalia don’t vote together very often but they’re big buds. And so, he has said he likes Elena Kagan. You know, he likes people that are smart and that can stand up to him and I think she could certainly do both of those things.
MS. IFILL: Well, Joan wrote the book on that.
MS. BISKUPIC: Yes. And I actually think we’re going to see a lot of action between the two of them.
MS. IFILL: Oh, good. I can’t wait.
MS. BISKUPIC: Yes. I think oral arguments will be a lot of fun.
MR. WESSEL: We need television cameras in the courtroom.
MR. WILLIAMS: And she did say she favored that which is a real break with the past.
MS. BISKUPIC: That is she came on stronger than any of the nominees saying it would be good for the country and good for the court.
MS. IFILL: And the main person she’s going to have to persuade is Antonin Scalia.
MR. WESSEL: And her hairdresser. (Laughter.)
MS. IFILL: Well, the Department of Labor today delivered news the Obama administration had been bracing for, a small decline in the unemployment rate and an anemic increase in private sector jobs.
PRES. BARACK OBAMA: We are headed in the right direction but as I was reminded on a trip to Racine, Wisconsin, earlier this week, we’re not headed there fast enough for a lot of Americans. We’re not headed there fast enough for me either.
MS. IFILL: Was this better than expected, worse than expected or do expectations even matter anymore, David?
MR. WESSEL: The only thing that expectations matter to are the people who make their living betting on these numbers on Wall Street. But for most people it’s just more disappointment. I mean, you can see the president trying to balance the story – well, it’s better than it was a year ago but it’s not good enough. Well, that’s right. I mean –
MS. IFILL: But he’s been saying that for a long time now.
MR. WESSEL: Absolutely. After you take out the fact that we hired a lot of temporary census workers in the month before and laid off a lot of them in June, we created only 83,000 private sector jobs in June, 7.9 million more to go. The average work week fell and the unemployment rate did come down but it was exclusively because so many people stopped looking. So it’s just given more evidence that the momentum that the economy had seems to be abating and it’s leading people to worry that what was already expected to be a low recovery is starting to look even worse.
MS. IFILL: Okay. So this is the best spin I can see out of the White House today which is, I know it doesn’t look good but last year, the first six months of this bad recession, we lost 3.7 million jobs and now we’re gaining a few.
MR. WESSEL: The economics writers rely on Barney Frank for all the good laugh lines. And in one hearing, Barney Frank said he envied economists because they could say, it could have been worse if not for me. But no one ever got reelected with a bumper sticker saying, it could have been worse. If we didn’t have a great depression, the stimulus probably did some good. The banking system is working. We are in better shape than Europe. The manufacturing sector is producing more stuff and actually beginning to hire workers. There is plenty of good news out there. There’s just not enough good news to get out of this incredibly deep hole.
MS. IFILL: You just gave me another bumper sticker – in better shape than Europe. (Laughter.)
MR. WESSEL: That’s why the dollar’s rising.
MR. WILLIAMS: Is there anything the Federal Reserve can do? They’ve already got the interest rate – they can’t go into negative numbers there. What more could they do?
MR. WESSEL: They actually – you know, there’s people who do research about is there some way to get to negative interest rates? Well, they spent trillions of dollars buying securities. They could do more of that but they’re very reluctant and of course, some economic physicians prescribe another dose of fiscal stimulus. But with both the Congress and the American people our poll, our NCB/Wall Street Journal poll shows by two to one, people seem more worried about the deficit than about jobs, it seems unlikely to be any action on that front either.
MR. BAKER: You mentioned Europe and the deficit. I mean, the president has got back from an economic summit in Canada where he met with foreign leaders. And there’s a different point of view, right, about stimulus versus deficit, what’s the important tool right now that – (inaudible) – facing?
MR. WESSEL: Right. Right. In Europe, for reasons either of local politics or just culture, they seem to be much more focused on the austerity thing. I mean, the new British government is doing very deep budget cuts. The Germans don’t do such deep cuts in their budget but they seem to amplify it with the rhetoric. And here the president’s kind of caught. He’s trying to say two things at the same time which are logical but hard to explain. Really what we need is a little more juice from the federal government now to get the economy going and we need a little less juice in the future. And that message is just not coming through.
MS. BISKUPIC: David, you mentioned people who had stopped looking for jobs. What about the long-term unemployed? Are almost near record numbers on that?
MR. WESSEL: We are. We are – 6.8 million people have been out of work for more than six months. Half of them have been out of work for more than a year. Many of these people are not going to ever go back to work. It’s a big problem. The president actually talks about it and seems somewhat frustrated that he can’t seem to get his advisers to come up with anything you could actually do to solve this problem. And the history is that the longer you’re out of work, the less likely you are to come back.
MS. IFILL: Wall Street reform – the House actually got it out this week and now we’re waiting to see what happens in the Senate. They’re counting nos at 60 votes. That’s a glimmer, isn’t it?
MR. WESSEL: Right. It’s definitely good news for the administration. They can say, we did health and they’ll be able to say we passed the never again financial regulatory reform and even if it does happen again, it will be on someone else’s watch. In my opinion, they actually – it’s a surprising strong bill that hits many of the major things that were wrong. It doesn’t do everything that everybody recommended but he and his team have managed to thread the needle in Congress. I mean, you could see them buying that 60th vote in the Senate with some budgetary gimmickry just to get Scott Brown on board. So I think we’ll look back on this particular piece of legislation as a very significant change, probably with lots of unintended consequences but it’s something which did repair some of the holes in the financial regulatory system that were exposed during the crisis.
MS. IFILL: Okay. Well, thank you, David.
Oil. Oil. Remember that? It’s still gushing in the Gulf but the president seemed to want to use this week to focus on something else for a change? There were meetings and speeches on climate change, immigration reform and a new round of stimulus spending. Perhaps it was an attempt to push the same reset button domestically that he tried for with Russian President Dmitry Medvedev over burgers last week. But that was before the spies, which we’ll get back to in a moment. Is the domestic reset going any better than the global reset there, Peter?
MR. BAKER: Well, you know, there’s an old saying, of course. If you’re banging your head against a brick wall, it feels kind of good when you stop, right. It doesn’t mean you’re not bleeding. And the president this week stopped banging his head against the brick wall of the oil spill, not because the oil isn’t gushing anymore but because our attention has shifted away a little bit at least for a few days to other issues.
And he was happy, of course, to talk about immigration and climate change, energy, even the jobs because at least it’s a subject he knows that people want to hear him talk about. But it’s a measure of how things have been going for this White House that talking about a bad jobs report actually is something of a relief because in fact, you know, they have not yet been able to set the agenda these last few weeks when the disaster in the Gulf sort of dominated everything. They’re trying to set the agenda because we’re heading pretty soon into an election campaign that they’d like to frame their way.
MS. IFILL: I didn’t understand why he was talking about immigration this week. This is something that this administration has not been anxious to talk about, something they’ve signaled they don’t expect anything to happen on this year. Is it as a favor to Harry Reid or to people like that for whom this is a big issues in races, in getting reelected?
MR. BAKER: Well, there’s a lot of pressure, of course, on the White House to try to address this. The Arizona law brought this to the fore, of course. The Justice Department is preparing a lawsuit against the law because they say it might encourage racial profiling. And, you know, he met this week with advocates for immigration reform and with the Congressional Hispanic Caucus. And yes, Senator Reid, who’s in a tough race for reelection in Nevada, has promised constituents there, where the Hispanic vote is rising, that he will push immigration reform this year.
But wait, as you say, don’t hold your breath. There’s no calendar that suggests that immigration reform is actually going to pass this year or if it even came up. So the speech this week was significant in that it’s the first time the president has devoted an entire speech just to immigration reform. And he laid out his point of view broadly without getting into too many narrow specifics. But it was done I think largely for political reasons to frame the debate heading into an election season in which both sides find this to be a very raw issue.
MS. BISKUPIC: But, you know, I’m wondering about his support among Hispanic voters. Is it serious enough – we all think of – you know, with Hispanic voters that he named the first Hispanic to the Supreme Court but that really wasn’t enough, isn’t enough for many of the people who supported him and immigration is so key. Is his support dropping enough that it’s serious enough for him to do other things if he can’t do immigration that might please them?
MR. BAKER: Well, I’ve got two things. One is I think that it’s interesting. With this president there in fact has been great expectation on the part of various constituencies that normally support Democrats or they supported him, liberals on healthcare weren’t happy that he dumped the public option or gay and lesbian advocates have been frustrated that he hasn’t been more aggressive on gay marriage or gays in the military and so forth. And I think that’s true in this case as well. But it also goes beyond just the Hispanic vote. What he’s looking to target, I think, is a broader part of the electorate that finds some of the anti-immigrant rhetoric to be a little strident and he’s trying to say, look, I am a reasonable person here and I’m straddling the divide between these two extreme poles.
MS. IFILL: He’s trying to get independents back.
MR. BAKER: That’s right. Suburbanized, middle-class voters who want to find some way to address immigration without going as far as some of the advocates on the other side might want to go.
MR. WESSEL: So what about energy? Does the Gulf oil spill propel an energy bill through this year, do you think?
MR. BAKER: Well, I mean, they hope it does. I think it will be more energy and less climate than it might have been a year ago.
MR. WESSEL: Meaning what?
MR. BAKER: Well, more geared at finding ways to get off petroleum without necessarily – there’s not going to be a cap-and-trade that we once talked about. But that’s still very much in there too. That’s not a guaranteed thing.
MR. WILLIAMS: And what about the spies case – a lot of attention on it. They actually seem to have gotten almost nothing but it is sort of fascinating. What’s it doing to relations with Russia?
MR. BAKER: Well, I mean, the timing obviously couldn’t have been worse, right? The president brings the Russian President Medvedev to the White House, he takes him over to Arlington to treat him to burgers and like two miles away or something like that is a safe house where the spies are just about to be arrested. We can call it the burger and spies summit, if you will.
MR. WILLIAMS: Or not.
MR. BAKER: Or not. (Laughter.)
MR. WESSEL: There’s great advance work by the White House though.
MR. BAKER: Unfortunately, at least for the president, the arrest didn’t come until after President Medvedev had left town. But both sides have determined not to let this become a big thing. Normally, in the past, you might have seen expulsions of diplomats and then a tit-for-tat expulsion on the other side. And really the rhetoric has been kept down to a minimum. The president hasn’t addressed it. Robert Gibbs was asked about it at the White House. He says this is a law enforcement matter.
MS. IFILL: Well, but it felt very Boris and Natasha. Remember them?
MS. BISKUPIC: Of course.
MS. IFILL: Well, thank you everyone very much. Before we go tonight, I’d like to share a little story about one of our most loyal viewers. His name was Robert C. Byrd. He was the longest ever serving member of Congress and he died Monday at the age of 92. The story goes that Senator Byrd had a Friday night ritual. When he returned home to his home in Washington after a long week on Capitol Hill, his wife would turn on the television to WETA, the PBS station here in D.C., and she would set a tray table with his dinner. Then he watched “Washington Week in Review” every week, no matter what.
Tonight, we’ve lost another viewer, the dean of the Senate, and we offer his family our condolences. Have a patriotic Independence Day and we’ll see you around the table again next week on “Washington Week.” Good night.