Panel on Obama's Nomination of Elena Kagan to Replace Justice Stevens on Supreme Court

Published May 11, 2010

| FoxNews.com

This is a rush transcript of "Special Report With Bret Baier" from May 10, 2010. This copy may not be in its final form and may be updated.

(BEGIN VIDEO CLIP)

PRESIDENT BARACK OBAMA: Elena is respected and admired not just for her intellect and record of achievement but her temperament, her openness to a broad array of view points, her habit, to borrow a phrase from Justice Stevens, of understanding before disagreeing, her fair-mindedness and skill as a consensus builder.

KAGAN: The law matters, because it keeps us safe, because it protects our most fundamental rights and freedoms, and because it is the foundation of our democracy.

(END VIDEO CLIP)

BRET BAIER, "SPECIAL REPORT" HOST: President Obama naming Solicitor General Elena Kagan today. She would be the youngest nominee to the high court since Clarence Thomas. She starts now this process of meeting with senators and eventually the confirmation hearings.

She also was the first woman dean of the Harvard Law School, and that is a lot of the experience that the senators will look back at. There's not a long paper trail.

Let's bring in our panel about this pick, Fred Barnes, Executive Editor of The Weekly Standard, Mara Liasson, national political correspondent of National Public Radio, and syndicated columnist Charles Krauthammer. Fred, let's start with you about Elena Kagan.

FRED BARNES, EXECUTIVE EDITOR, THE WEEKLY STANDARD: There is a great tendency in this town when someone is nominated for the Supreme Court to confirm them, pre-confirm them. She is bound to be confirmed and a slam dunk, and so on.

I say wait. When you have the high-visibility nominations like this, and the Supreme Court is one of the biggest ones, you will get enormous national attention. And you just never know in these cases what kind of information, documents, the people we haven't heard from, this pops out of the woodwork.

I go back to the Nixon nominees Haynesworth and Cartswell and Reagan's nominee Judge Doug Ginsberg who is on the local appeals court here in Washington, Bill Clinton's nomination or choice of two attorney general nominees that were knocked off. These things happen.

We know so little about her that a great deal more information will pop up. We do know that she is fairly inexperienced. In recent years almost all the nominees has had judicial experience, which seems to help.

If some Republican president nominated somebody with no judicial experience and somebody who had lived in the rarefied air at the top of the legal establishment in America, which is where she has been, all the Democrats would be, they would be on a rampage against the nominee. The Republicans aren't right now. They are going to wait to see what information turns up. I think she has one bad thing and one good thing. The bad thing is the anti-military bias when she showed in trying to block military recruiters from Harvard school. The good thing is I think she will be an extremely good witness because she is amiable and likable and that helps a lot.

BAIER: Mara, on the military side, there have been military groups coming out saying it's an affront to the U.S. military that Kagan has been nominated, a number of other groups putting out statements today.

MARA LIASSON, NATIONAL POLITICAL CORRESPONDENT, NATIONAL PUBLIC RADIO: That I think is going to be the biggest flash point in her confirmation process until and unless something else is found out that is controversial.

But the White House was already saying today she was very supportive of people who chose to be in the military, and they have picture of her pinning bars on somebody's shoulder. I think that is going to be one of the flash points.

The other thing that I think is ironic is although she much like other nominees we have had for the court in recent years, conservatives as well as liberals, she spent so many years being careful, trying not to say anything on controversial topics, she did write an article about the nominating process, itself, where she criticized.

BAIER: Here it is. The quote, 1995, "The current confirmation mess derives not from the role the Senate assumes in evaluating Judge Bork but the Senate subsequent abandonment of the role and function.

When the Senate ceases to engage nominees in meaningful discussion of legal issues the confirmation process takes on an air of vacuity and farce and the Senate becomes incapable of evaluating nominees or appropriately educating the public."

She's essentially saying you have to answer the questions, and senators need to ask --

LIASSON: And she criticized the nominees for not saying anything, and the senators don't get information. That is now called the "Kagan rule," and she will be given the chance very politely to express herself on all sorts of things, and I believe she will retreat to the comfortable confines of the mode of behavior she once criticized.

CHARLES KRAUTHAMMER, SYNDICATED COLUMNIST: She will go beyond retreat, she will revoke the Kagan rule. She will find an eloquent statement to say I meant in a slightly different way. She is not going to answer any questions. She has the perfect resume to get through.

I think Fred is right. There might be something out there, an Anita Hill lurking, something you don't know about. But I think it's extremely unlikely in the absence of a bombshell we don't know about, I don't see how she is not confirmed by a wide margin.

Look, she, if you look at this on an ideological scale, it's Obama going left to center. He starts with Sotomayor at a time in 2009 when he is strong, riding high, has control of the Senate. She is pretty left, the wise Latina comment. He is in a position he can risk it.

Now he is a lot weaker, 41 Republicans in the Senate. So he goes with a more mainline liberal. He knows after next year, if he gets another pick, he will get really weakened in this, especially in the Senate he could even lose the Senate, unlikely, but possible. But he certainly will have a much smaller majority. He will go to centrist liberal like Merrick Garland who he overlooked now.

I think he's planned it politically well. You go more ideological when you're strong and you go to the center when you are weaker.

BAIER: Quickly, Mara, about the politics here. We have race in Pennsylvania, the Democratic Senate primary race pitting Senator Arlen Specter against Joe Sestak. The current polls have the race leaning toward Sestak. The latest poll is out. Specter was the only Democratic Senator to vote against Elena Kagan as solicitor general.

LIASSON: He was a Republican.

BAIER: No, no, he was a Democrat when he voted.

LIASSON: OK.

BAIER: He had just turned over, but he still voted against her.

LIASSON: He voted against her, but today he issued a statement where he talked about her exemplary professional and academic credentials and he appears to be getting ready to change his mind.

KRAUTHAMMER: Really?

LIASSON: But she might have been a good pick for the reasons that Charles mentioned for White House, but for Arlen Specter she was probably the most embarrassing pick.

KRAUTHAMMER: You almost feel sorry for Arlen Specter, almost. He's gone through so many twists and turns and retreats and swerves and reverses. It reminds me of a line in a Graham Greene novel where he speaks of a protagonist that says "I prefer to tell the truth. It's easier to memorize." Specter has a lot of memorizing to do.

BAIER: Last word.

BARNES: Specter's best chance for being reelected would have been to stay a Republican. I think he is quickly learning that.

BAIER: Tell us how you think Elena Kagan's confirmation hearing will go. You can vote in the online poll at the homepage foxnews.com/specialreport, right there on the right.

Up next, will the administration push for changes in the Miranda rights of suspected terrorists?

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

ERIC HOLDER, ATTORNEY GENERAL: We now know international terrorism, and we have to think about perhaps modifying the rules that interrogators have and somehow coming up with something that is flexible and is more consistent with the threat we now face.

JEFF SESSIONS, R-ALA., SENATE JUDICIARY COMMITTEE: That is sort of an admission that the initial take on it was incorrect. If you treat these individuals -- if you know they come from an enemy of the United States, they do not have to be given Miranda at all and they certainly shouldn't given Miranda right up front.

(END VIDEO CLIP)

BAIER: The attorney general this weekend saying interrogators need more latitude in questioning terrorism suspects without reading them their rights.

And that got a big push-back from the right, the Senate Minority Leader Mitch McConnell late this afternoon saying that the administration seems often to have a trial and error approach on Guantanamo, on the Christmas day bomber, and now they want to revisit their approach on administering Miranda warnings. He said "Let's make it easy, every criminal should be treated like one, Mr. Attorney general."

We're back with the panel. Charles?

KRAUTHAMMER: Here's the dilemma. If you are a conservative like McConnell and me you say you grab a guy like Shahzad and declare them an enemy combatant. The Miranda warning doesn't come into play. You question them until you get what you need.

The problem is liberals are in power in government and will be for a couple of years and they believe in putting them into the civilian system.

If you do and you do as we did with Shahzad or Abdulmutallab and you read them the Miranda rights quickly and early, there is a good chance he will shut up. And with Abdulmutallab we lost a month of information. He shut up for about five weeks.

We got lucky on Shahzad, but if you read the guy his rights and say you have the right to remain silent, it's possible he will remain silent. Therefore you are depending on luck. With Shahzad we got lucky. Had he decided to remain silent we would not get any of the information we'd get in the last few days about his coconspirators, his contacts, training information in Pakistan.

You get the attorney general suggesting expansion, and there is already a cut-out and exception in the Miranda rule, the public safety clause. But it is only for immediate danger. It's only, is there bomb in Times Square?

I think it ought to be expanded to include information on the outer limits of a plot he might be involved in. That is what Holder is talking about, expanding it so you can get information not only about bomb about to go off in Times Square but anything in the planning stage.

If you expand it and read Miranda rights after that, then you might have a reasonable system of in which you are putting people in civilian courts.

BAIER: Mara, not a lot of traction from Senator Pat Leahy or a couple others --

LIASSON: You are not hearing the push-back. You'd think it would come from the left. Mitch McConnell didn't push back against it but he had some snide remarks about what took so long. But I think the administration is going to get a lot of agreement on this, certainly from the Republicans.

BAIER: Not from the ACLU.

LIASSON: No. But they have been at war with ACLU on a variety of issues on this.

This administration is groping toward or working toward the right balance between protecting civil liberties and the constitution which they cared deeply about when they came in, and national security and fighting terrorism. And they are changing their idea and I think they're slowly coming to a kind of conclusion about where the line should be drawn.

BAIER: Fred?

BARNES: If you expand this public safety exemption under Miranda, the days and days and days until you get all the information that you think you can get, it really sort of nullifies Miranda. And instead of it leading to somebody going in a civilian court after that, the logical thing to have after this if you have this is to have him tried in a special court for terrorist rather than in civilian courts in the United States. This obviously would be the right place to do KSM who is now supposed to still be scheduled I guess to be tried in New York City in civilian court. That ought to be tried and changed and tried in military or specialist terrorist court. I think we draw from that we should have these people in a separate place not in the United States. There is a place for that, Gitmo. I'm glad they're finally groping for this, Mara. It has take an long time, groping toward treating terrorists right. In the Fort Hood case, in the Christmas underwear bomber, in Times Square you had three things, in all three of those were examples of failed intelligence. We had no intelligence that any of the things would happen. So it's not only doing interrogation differently but a beefing up, getting stronger, whatever you have to do to improve the intelligence. I mean it was pathetic. You know, they say well, I mean John Brennan, the terrorist guy said on "Fox News Sunday" said we weren't lucky, we were good. They were lucky!

BAIER: They also said it wasn't a lone Wolf, but the fact of the Pakistani Taliban. We'll follow this story.

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