MS. IFILL: Talk about White House ups and down, bad news on job numbers, good news on Elena Kagan, and meets political fallout from a California gay marriage decision, tonight on “Washington Week.

PRESIDENT BARACK OBAMA: The road to recovery doesn’t follow a straight line. Some sectors bounce back faster than others.

MS. IFILL: No kidding. The nation’s economic zigzag continued in July with new signs of weakness. The light at the end of the tunnel is still some distance away. But history was made in the Senate this week with Elena Kagan’s Supreme Court confirmation. The debate was familiar.

SEN. PAT ROBERTS (R-KS) : Her record clearly demonstrates a propensity toward pursuing an activist agenda.

SEN. CHARLES SCHUMER (D-NY): They want their own brand of activism. Judicial activism of the right -- to pull the court and the country away from the mainstream.

MS. IFILL: But the president won the day.

PRES. OBAMA: So it is now my great pleasure to introduce as our next Supreme Court justice, Elena Kagan.

MS. IFILL: And in California, a judge overturns a ban on same-sex marriage.

GAY MARRIAGE SUPPORTER:  Americans are going to understand that we are people. We lead exciting lives, boring lives. We love our family, our friends, our children. And so it is a great day.

CALIFORNIA VOTER:  The voters say no, then that’s who should decide, not a federal judge.

MS. IFILL: A constitutional fight most likely headed to the Supreme Court. Covering the week: Eamon Javers of CNBC, Joan Biskupic of “USA Today,” and Gloria Borger of CNN.

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.”

(Station announcements.)

ANNOUNCER: Once again, live from Washington, moderator Gwen Ifill.

MS. IFILL: Good evening. It’s tough to present bad news as good or to focus on silver linings when the cloud cover just won’t break. But that was the task that faced the Obama White House this morning when they were presented with these numbers: 131,000 jobs lost in July, 71,000 private sector jobs created, which was good except experts had predicted it would be 83,000. Add it all up and 14 million people are still looking for work. That made it difficult today for the president to find much good to say.

PRES. OBAMA: There’re some good trends out there. That’s the good news. But for America’s workers, families, and small businesses, progress needs to come faster.

MS. IFILL: So let’s look behind the numbers. Are there indeed good trends out there, as the president was saying today?

MR. JAVERS: There really aren’t. The president is in a position where he wants to sell whatever silver lining he can find, but bottom line, losing 131,000 jobs is really a political disaster for this administration. And when you look – take away the Census, which was a big part of that. The Census has started to lay off a lot of the temporary workers. So the private sector created the 71,000 jobs. That’s tepid at best. And so Barack Obama is in a position now where he’s got to go into the fall campaign selling these numbers which are just really, really bad, after having spent a lot of money and spent the first year and a half of his administration trying to do something about jobs, jobs, jobs, the issue everyone has said in Washington is going to be the number one political issue.

MS. IFILL: The best thing that Christina Romer, his Council of Economic Advisers chair, his outgoing Council of Economic Advisors chair, and he were able to say this week was “look, the manufacturing industry is rebounding or the auto industry is rebounding. Even if these long-term jobs seem to be stuck.”

MR. JAVERS: Yes. He was at a Ford plant yesterday talking about next generation technologies in the auto manufacturing industry. He was at a GM plant last week. And the administration actually believes that talking about the auto industry is really good politically for them right now because they think that the auto bailout has actually done something to preserve jobs, particularly in the Midwest. And they’re starting to see real traction. We’re going to see an IPO from GM and this might get out from under government protection at some point before too long. So they think that’s a winner for them, particularly because they can talk about made in America, blue collar working class jobs. Those are jobs that people want to hear about on the campaign trail. And so you’re going to hear of that from the president.

MS. BORGER: But talking is one thing. Okay, they’ve got a midterm election coming up in November. Is there anything they can do realistically between now and then to change that jobless rate?

MR. JAVERS: Well, the problem is when you have 14.6 million people who are out of work as we have right now – it’s just a horrific situation. And there’s not that much that they can do. The impressions politically sort of harden late summer, early fall. That’s the sort of mindset that people are going to carry with them into the voting booth. And for the Democrats, it’s going to be a bad late summer and early fall. It’s already too late. And when you look at this on a curve, and you look at the graph, the jobs that we were losing have started to lessen and lessen. We came into positive territory. We tipped into positive and now we’re flattening out again. And that’s a problem for the administration.

MS. BORGER: At least they’re not dipping again, though.

MR. JAVERS: Well, Alan Greenspan said that we’re in the pause in the recovery and a pause in a recovery is not what this country can afford right now. So for Obama it’s really tricky.

MS. BISKUPIC: And let me ask a deeper question about the people behind these numbers because does it really reflect some people who’ve been out of work for a very long time and who are – who just are no longer looking for jobs and aren’t being counted and isn’t that group now swelling?

MR. JAVERS: Well, that’s right. And that’s actually why the unemployment rate – even though we lost 131,000 jobs, the unemployment rate stayed fixed at 9.5 percent. The only reason that’s possible is because so many people actually gave up looking for work. They’re not counted in the unemployment numbers that we count statistically. So they’re out of the work force altogether. But they’re going to be voting in the fall. So those people who are experiencing a lot of pain right now.

MS. IFILL: We saw an interesting thing that happened in the Senate this week, which they passed a jobs bill that was targeted toward state and local employees, which is – which is one of the segments that took a big hit according to these latest numbers. And then the House gets to come back from their vacation or wherever they’ve gone this weekend in order to vote on the same thing. Is there a connection between all these things just in the political sense?

MR. JAVERS: Well, there is. And the connection is spending in Washington and whether government can do anything to get us out of this economic fix. The Democrats have said yes. Their theory of the case is that if you spend money in Washington eventually that’s going to have some impact in pumping up the economy. Republicans are very skeptical of that and say, hey, wait a second, this is just more Democratic deficit spending. They’re going to take that case into the fall elections, too and say, these Democrats not only have they not fixed the problem, but they made the deficit.

MS. BORGER: But isn’t there some disagreement among the president’s economic advisors about whether you need more stimulus –


MS. BORGER: – or whether you actually should not have any more – because you need to be more concerned about those long term deficits?

MR. JAVERS: And we’ve seen some turnover among the top players. We saw Peter Orszag –

MS. IFILL: I’m sorry. Wasn’t she on the losing side of that argument?

MR. JAVERS: Yes and she famously got into various arguments with Larry Summers, who’s the president’s economic advisor who’s maybe more in sort of the traditional centrist Democrat camp historically. And the president has a lot of economic advisors. He created all these advisory boards and panels and things when he was first sworn into office. And now he’s got a conflicting set of recommendations.

MS. IFILL: So why is she leaving really?

MR. JAVERS: Well, a lot of people think that she’s going to be the next head of the San Francisco Fed. And so moving back to the West Coast and teeing herself up for that job, which is a pretty good job if you’re an economist, might be a good thing for her, and to get out of Washington where she really hasn’t been able to find a place for herself in this administration.

MS. BISKUPIC: I was going to ask about another trend line that was mentioned in Gwen’s opening -- foreclosures. Are people more reluctant now to move for jobs anywhere? And how is the troublesome housing market intersecting with the job rate here?

MR. JAVERS: Well, a lot of people can’t move for a new job offer. And that’s part of what’s going on is people are stuck. If you’re like me and you bought your house in 2002, close to the peak of the market, you aren’t going to be moving anywhere anytime soon. And that’s a problem. And also –

MS. IFILL: You like your house?

MR. JAVERS: – I love the house. We’re not moving anytime soon. But look, people ultimately are in a situation where not only – certain people are stuck. But confidence of everybody else is really impacted when they see that happening to their friends and their neighbors. Consumers aren’t spending and we also see that confidence affected on the corporate side. Companies aren’t spending. We have companies reporting huge earnings and they’re not spending money. And so that’s keeping the economy stuck right now.

MS. IFILL: And then of course they revised the numbers from last month downward. So we don’t even know what’s going to happen next month. These numbers might not even hold.

Well, the White House didn’t have good news on that front and they didn’t have to struggle to put a good face on yesterday’s confirmation of Elena Kagan to serve on the nation’s highest court. In fact, they threw a party today.

ELENA KAGAN: I also very much enjoyed meeting with 83 senators, but really who’s counting? (Laughter.)

MS. IFILL: When she is formally sworn in tomorrow, the history books will get a new entry.

PRES. OBAMA: For nearly two centuries, there wasn’t a single woman on the Supreme Court. When Elena was a clerk, there was just one. But when she takes her seat on that bench for the first time in history there will be three women serving on our nation’s highest court. (Applause.) It is, as Justice Ginsburg recently put it, one of the most exhilarating developments.

MS. IFILL: The face of the court will change in other ways on the first Monday in October as well. Elena Kagan is 50. The man she’s replacing, Justice John Paul Stevens, is 90. And that’s not the only generational shift, is it, Joan?

MS. BISKUPIC: That’s right. Just think of how much this court has changed in the last five years. Chief Justice John Roberts succeeded William Rehnquist, who was nearly 30 years older. Samuel Alito succeeded Sandra Day O’Connor, who was nearly 20 years older. And both of them have come on and been much more assertive conservatives, much more active on the bench, pushing the court a little bit more toward the right. And I think we’re going to see evidence of that now from the liberal side, someone who’s 40 years younger than her predecessor. And Elena Kagan has already showed us, with that kind of wit that we saw in that clip, Gwen, that she’s much more focused, determined, she’s used to the rough and tumble of politics, too. So I think we’re going to see someone who’s much more active on this court, even though she might vote the same way as her predecessor.

MS. IFILL: And she’s also someone who didn’t hesitate even when she was solicitor general to go toe-to-toe with someone like Antonin Scalia?

MS. BISKUPIC: Oh, they’re actually a perfect pair, although we’ve got a couple of those pairs up there because Justice Ruth Bader Ginsburg, who’s a liberal, is very close to Justice Scalia, who’s on the hard right. But Elena Kagan and Scalia really get along, even if you got that “New Yorker” thing, New Jersey thing happening. He’s from Queens. She’s from Manhattan. Ginsburg’s from Brooklyn. And we got Sonia Sotomayor.

MS. IFILL: A third of the court is from the five boroughs of New York and New Jersey.

MS. BISKUPIC: Yes, really, really. And that shows. It shows both in the youth of the court. It shows in this Northeast thing going on. So I think that Elena Kagan is not going to have any kind of real freshman anxiety. She’s not going to lay back. Now, there’s only so much you can do as a junior justice. But I think she’s going to push as much as she can.

MS. BORGER: She still gets a vote, though, doesn’t she?

MS. BISKUPIC: Right. But she votes last in the (presentation ?).

MS. BORGER: But she’s also different because she’s never been a judge before. So does she get a certain amount of hazing there because –

MS. BISKUPIC: Well, it’s interesting you mention the experience because that’s why some Republicans said they were voting against her because she had no judicial experience. But we’re so accustomed to this thing of – the nominees coming already wearing a black robe. But back in 1972, President Nixon named William Rehnquist and Lewis Powell, both of whom went on to very distinguished careers and neither of them had been a judge before. Now, Elena Kagan has been solicitor general of the United States for the past months. She’s the government’s top lawyer before the court. She gets the court. She knows the routines. There will be plenty of things that will be new to her – deciding cases – but she’s already somebody who’s been in that milieu who gets what they’re doing.

MR. JAVERS: Joan, I’m really wondering about this. As I watched this process this year, I was thinking about back to last summer and the Sotomayor situation. And that had all this heat and light and blogosphere and media. And then Kagan is – almost disappears from the media entirely, for the entire time. I almost forgot she was in process here. Why was that?

MS. BISKUPIC: Yes. We were holding some nomination hearings. (Laughter.)

MR. JAVERS: Right.

(Cross talk.)

MS. BISKUPIC: – right, that BP oil spill. Okay, first of all, let’s go back and think of what made Sonya Sotomayor such an important figure? The first Latina on the court, the first appointment of President Obama. Very historic. So there was a lot of attention there and a lot of – face it – a lot of political attention, too.

Now we have a woman come on who is highly credentialed. Went to Princeton undergrad, Harvard Law School, had been the first woman dean at the Harvard Law School, just had a very strong background in both the Clinton and Obama administrations. But she didn’t give the Republicans much to fight over. We had that – we had the skirmish over the military recruiting policy at Harvard, but it didn’t really take off. So the Republicans who tried to make her an issue found that there was no traction there. The Obama administration has all these other things going on. So they didn’t want any real attention on her except for to say, look, we’re putting the forth woman in history, the third woman for now.

MS. IFILL: So now that she is actually about to arrive because she – she actually takes the oath of office, I guess at the Supreme Court Chambers, Justice Roberts will swear her in on Saturday. So that happens. What are the first things coming down the pike? The Supreme Court, the past several years, as you well know, has been just a hotbed of incredible consequential action. We were going to talk in a moment about gay marriage.

MS. BISKUPIC: Oh, look at what’s coming their way. We have a fight over the health care overhaul that’s percolating up. We have a fight over the Arizona immigration law that’s percolating up. We’re going to talk about the fight over Proposition Eight in California. Those are very big issues that will eventually get to her and obviously in her lifetime with her just being 50. But immediately the Supreme Court already has about a third of its docket set for the upcoming term that will begin the first Monday in October. We have a fight – another fight from California over state restrictions on video games, violent video games. They’ve got that case coming. They have a very good First Amendment case over that involves Fred Phelps, who will often picket at military funerals.

MS. BORGER: Health care, don’t you think health care mandate issue is going to work this way –

MS. BISKUPIC: It’s just in a lower court right now, but it will. So she will be tested right away. And nine, 10 months from now we’ll be able to say what was she like and how would her vote differ from John Paul Stevens.

MS. IFILL: Let’s talk about one of those issues that’s going to be percolating up to Justice Kagan’s court, as I guess you could put it.

U.S. district court Chief Judge Vaughn Walker stirred things up by ruling this week that California voters violated the Constitution when they voted to ban same-sex marriage. The winning lawyers in the case were an odd couple, Ted Olson and David Boies who you will remember, opposed each other famously in Bush v. Gore in 2000. But they banded together to take on California’s Proposition Eight. Gloria spent some time with both of them for her reporting at CNN. Why do they take this case on now and why this case of all?

MS. BORGER: Those are questions that lots of people were asking at the start of this, including lots of gay groups because they were saying, okay, you have this conservative legal icon, Ted Olson teaming up –

MS. IFILL: Former solicitor general.

MS. BORGER: – former solicitor general – teaming up with this Democrat, David Boies, to take on Proposition Eight. And it’s something that the issue of gay marriage has not been successful at the state level if you’re for gay marriage. More than 40 states are on the record opposing it. Only a handful of states support it. And there were a lot of gay activists saying, whoa, why are you rushing this? Why not let this work its way through the states? This could really be a problem for us if we lose, it will set us back. That’s exactly the point I raised with these two super-lawyers. And they said to me, look, we see this as a clear civil rights issue. They saw Proposition Eight as a violation of the Equal Protection clause of the Constitution, period. That’s exactly the way, as it turned out, Judge Walker saw it.

And when I said to them, okay, so it’s a civil rights case, still why now? And I’ll tell you what. Ted Olson is very emotional when he talks about this case. He said, when do you tell real people who are being denied their rights that they ought to wait? And he refers to Dr. King’s letter from the Birmingham jail when he talks about it. And he quotes from it. And says, who are we as lawyers to tell people, wait 10 years, then you’re going to get your rights.

MS. IFILL: But I have to say I was struck by the language of the decision. We are used right now to parsing these very narrowly drawn Supreme Court decisions. This was not narrow at all. He didn’t just say it’s a constitutional issue. He basically said it’s a scandal.

MS. BORGER: What he said was Proposition Eight does nothing more than enshrine in the California constitution the notion that opposite sex couples are superior to same-sex couples.

MS. IFILL: That was farther than he had to go.

MS. BORGER: Well, he was talking about the finding of facts – and you’re the legal eagle here – in this case. And it’s interesting. The proposition – the folks who were defending Proposition Eight did not bring a lot of folks to testify.

MS. BISKUPIC: And that turned out to be a problem because Judge Walker hit that over head and over the head as he did his findings of fact, and it’s the job of a trial judge to set out the findings of fact. Appeals court judges look at the law, so he’s established this record that is very lopsided.

MS. IFILL: Right.

MS. BISKUPIC: Gloria, you have talked to gay rights activists a lot on this. And I’m wondering – to get back to your very first point about the timing of this – the Supreme Court is still very polarized. It’s very divided. The conservatives still have the upper hand.

MS. IFILL: Right.

MS. BISKUPIC: And were you finding that a lot of people who were suspicious of Ted Olson and David Boies now think it’s really paid off – you find they’re still anxious?

MS. BORGER: No, I feel that gay activists are still anxious. It’s got a long way to go before it gets to the Supreme Court. It could be a few years, goes to the Ninth Circuit. And that’s going to take some time.

MS. IFILL: And it’s still uncertain whether folks can actually get married in California. Is not that the next day people –

MS. BORGER: The judge issued a stay of his own opinion because there’s a question of whether you put people in legal limbo in California. You could create a whole new class of people who get married and then it could be invalidated, which has been a problem. So I think this judge was trying to be very, very careful.

MR. JAVERS: What about on the right, though? Talking about gay activists on the left, on the right, Olson – where does he stand with conservatives? Do they feel betrayed by this?

MS. BORGER: Well, I’ve talked to a bunch of conservatives about it –

MS. IFILL: They’ve been awfully quiet.

MS. BORGER: – well, so is the White House.

(Cross talk.)

MS. BORGER: – but conservatives, there are some who think, and I’ve spoken with a bunch who says this is a complete betrayal. How does Ted Olson see this as a constitutional issue? This is a man who’s argued before the Supreme Court 56 times, won 44 times, mostly on conservative issues. Why is he seeing it this way? But there are some libertarians who agree with Ted Olson and say that Republicans should be thinking about what they ought to do to promote family and that in fact, this is a family issue. And Olson told me he consulted with conservatives before he took this case on. And not one of them convinced him differently. As for Obama –

MS. IFILL: I was going to ask you. (Laughter.) The president is on record as not being in favor of gay marriage.

MS. BORGER: Well, this is – this is an interesting thing. He is not in favor of gay marriage. He is in favor of civil unions.

MS. IFILL: Right.

MS. BORGER: Civil unions are very different from being able to get married. And it’s an issue that cuts politically in very different ways because David Axelrod, senior advisor to the White House, came out and said this was a good ruling, but the president doesn’t support gay marriage, of course. This is a states’ rights issue, right? Because people have voted in the state of California against gay marriage. Fifty two percent of the people in this country don’t want gay marriage. So that’s – it’s also politically a generational issue. Young people say it’s fine. Older people don’t want it.

MS. IFILL: And actually, kind of interestingly, in the president’s first book, his big best seller, he actually talked about this and said at the same time, maybe I’m on the wrong side of history. So maybe there’s room -- if there are political reasons to do it -- to shift. We’ll see.

MS. BORGER: We’ll see.

MS. IFILL: We’ll be watching. Thank you, everyone. We have to leave you a few minutes early this week so you can have a chance to support your local PBS station which in turn supports us. But if you’re hungry for more, the conversation continues online with web exclusive content, including our Webcast Extra, my blog, and links to other popular PBS programs. That’s at As always, you can keep up with daily developments at the PBS “NewsHour” on air and online and we’ll see you again right here next week on “Washington Week.” Good night.