call, austin, texas, independent line. caller: are either one of you all a member of the clare boothe luce thing? we should not have a show like they had for just as alito where his wife was crying. we want to know everything about the. are you either a member of the clare boothe luce society? guest: i am not but i hope we get a hearing where we are not forcing people into tears. the senators will have something concrete rather than guesses from documents in terms of the votes. host: thank you for being here

and we appreciate your opinion on this. we want to point our viewer to an article in ""the new york times" this morning. bill clinton has comments about elena kagan and his service during her administration. that does it for today's "washington journal." we will be back tomorrow morning and next we will have the interview with senator patrick leahy. thank you for watching. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010] . .

>> mr. chairman, i wonder if you can comment on elana kagen's writings about 20 years ago abthe con23ir78ation process about how she talked about nominees avoiding substantive questions. do you think it would be appropriate for her to respond about whether row v wade was

correctly decided? >> you actually asked several questions. one, how i feel about her writing. i thought she was right. she probably may have second thoughts about that now being a nominee. i told hers that one of the areas she is going to be asked, the question about how forts coming. it's been my experience that nominees to the supreme court shouldn't be less than less forth coming. i think she will be asked a number of questions. on row versus wade, if asked that question, i suspect an answer is this is settled law and we should rely on settled law. but as we have seen in some recent hearings, say as as a justice, i'm like an umpire, i call the bals and strikes. and settled law. so one i think she is right in

saying that we should get more information. but secondly, i would suspect that it will be difficult to get really specific information. >> so if you could answer the second part. then what's if point aff owl all of this? >> i think you try to get as much information as you can. and there have been times when the hearing has been decisive or even the fact that thh hearing is coming up and people start exploring questions has been decisive, when president reagan with drew one of his names before the hearing even began. president george w. bush did also. are there dramatic changes? yes. are we going back to the old days? no. probably the best example is she is replacing jean-paul stevens. i was in the senate when he was nominated.

nominated by conservative republican president. it was an overwhelmingly democratic senate and he was confirmed in two and a half weeks. and he made courtesy calls on a number of senators. that's not going to be the same for his successor. she has made the courtesy calls. i think she has talked with practically er senator. and but thh questions will be significant. i'm concerned, for example, with the trend of the court, it's become a very activist court. we have seen a lot of long-standing law that has been overturned, for example with the led better case. you have basically saying men can be paid more than women. we had to rewrite the law. the first law that president obama signed into law saying we should all feel that women and

men get paid the same for the same kind of work. so turning back the award in the exxon valdez, i wonder if the supreme court would do that today as they watch what's happening in the gulf. and i think the most egregious decision the citizens united, which has the interesting effect, this is the one that says that corporations can be involved in political campaigns, can be involved in spending on political campaigns, something that since the time of teddy roosevelt we said could not be done. yet bp, if they wanted, could say some of these members of congress are being too tough on us and asking questions. so we will spend millions of dollars to elect somebody who will say we're doing the right thing. now, i don't think that's going to happen. but under what the supreme court said, that could han.

>> happen. host: you seem to be critical of the court under chief justice roberts. are you trying to paint the conservatives as the activists? >> i think it's hard to define where the liberals have been activist. it wasn't the liberals who said that men could be paid more than women. the same kind of job. whether the liberals that said that exxon mobile shouldn't have to pay the amount that a jury gave the people of alaska for their oil spill. and it wasn't a liberal activist liberals who said that for the first time since the time of deady roosevelt you could allow corporations to get involved in political action. and it wasn't a liberal activist court that decided the presidential race between president bush and al gore.

>> if i could ask a question. jeff sessions, the top republican on the committee, has been critical owea kagen's position against gays when she was dean at harvard and tried to link that saying she was hip crlcal but by not criticizing harvard from accepting money from members of the saudi royal family. what do you make of that? >> first, it it wasn't vell as co. if i i was on the board of overseers of harvard, i'm not sure i would be that eager to accept saudi money even though i think the idea of having real studies of islamic life islamic religion, islamic society is a good one to be having in this country. but that wasn't a decision that she made. i think that's a bit of a stretch.

are they going to ask questions about recruiting? sure. they've all talked about that. in my mind, that's a tempest in a teapot. people, military would recruit on the harvard campus all the time. that she was the dean. there were, it was under one condition prior to the supreme court decision. under one afterwards. but they were always able to recruit. where i found more her attitude is every thanks giving she would have a dipper for all those who were veterans on the campus, according to the law school. i thought that was pretty commendable. again, the reason i say it's a tempest in a teapot, even if they were excluded or not, if somebody wants to join the military, they are going to be

able to find a recruiter's office. my son, there was no recruiter at high school but he was able to find the recruiter for the united states marine corps and join the marine corps. and proud served in the marine corps. he didn't need to have the recruiter brought to his classroom. usually if you're motivated you can find them. >> before her services as dean of harvard, she spent quite a bit of time in the clinton administration, as you know has gotten tens of thousands of pages of documents detailing her service as a domestic policy advisor and white house counsel. what if anything have you learned about what kind of justice she would be or what kind of legal approach she would take? >> i think it's hard to say what kind of justice she is going to be. we do have far, far more material, and i've complimented all of the administration. but the clinton library and the archives in giving up this

material. we have far more material that's been presented to the senate judiciary committee than we have ever had for any nominee. and i think if you look at it and you say was she acting as a good counsel in the clinton administration? did she give advice? just as she would give advice to justice marshall when she served as a clerk for justice marshall. it gives you some idea of the legal ability but not what kind of justice they are going to be. this hugo black was a member of the cluclusm clan. he was a united states senator. he helped put together the decision that ended segregation, brown versus board of education. so you still have to make some kind of a guess. jean-paul stevens today is not

what i thought he might be as a justice when i vote for him 35 years ago. i'm pleased with the way he has turned out he gave a certain amount of -- saying that the gerald ford was president and he should be given some wleeway in who you nominate. i thought at the time he was probably a lot more conservative than somebody i would have recommended to a democratic president. i think he has been a very good justice. at the same time, you have somebody like david suiter who i think was a superb justice, i was very happy in the positions he took. but i remember when i announced i was going to vote for him, a very liberal group picketting outside my office saying if i voted for him they would make sure i never got reelected. well, i voted for him, i was reelected, he served very well.

it's a lifetime appointment. people make up their minds on many things. you can probably get as good a view of them as they can but ultimately they are going to make up their minds themselves. >> senator, if you can't read too much into her papers when she was a clerk or served in the clinton administration, she hasn't been a sitting judge, on what basis do you figure out if she is fit or what kind of justice? >> that's a good question. but keep in mind that up until about the time i came to the senate, i think 40, 45% of the justices of the supreme court had not been sitting judges. certainly hugo black i just mentioned him. and there was a great thing that he was not because he brought some very real life experience. he had been a member of the can you cluction clan he had seen how the process worked and he realized that segregation should be a thing of the past. in plessie versus ferguson was

overruled by brown versus board of education. that's the kind of justice i would like to see. you try to ask enough questions to make up your mind. you know, it comes down to this. we have almost 300 million americans. they are going to be affected by the nine members of the supreme court. one person gets to nominate that supreme court justice. only 100 americans get to vote either for or against that person. the 100 members of the united states senate. it is a major responsibility. and i can't tell another senator how they should make up their mind, what should weigh in their mind. i just ask them to keep an open mind and vote yes or no. most justices are going to last longer than most of the senators who vote for them.

>> what, if anything, can we get from the memos that she wrote to justice marshall as his clerk? i know you've looked at those as well as senators did before her conif i rememberation hearings. and she often seemed to be weighing cases based on whether she thought the conservative quote would make bad policy if it took them. is that an appropriate conversation for a justice or justices clerk to make? do you think that says anything about what she would do if she were confirmed? >> i ask myself that question and it's a good question. i thought about it and i think, after all, the one writing the opinion is not the clerk as justice marshall. and the man had enormous amount of experience, had argued dozens of cases successfully before the u.s. supreme court including brown versus board of education. and i am sure he told the clerks, here is what i want you to look at. i'm the one who is going to

make up my mind on this, here's what i want you to look at. and i talked to a lot of people who served as clerks before with different justices both republican or democratic justices across the political spectrum. and the clerks tell me that the justices normally tell them look out for certain things. i am particularly interested in such and such a thing. i will decide it. but i'm particularly interested, give me the law that goes to this point or give me the law that goes to that point. but -- and a clerk does what the justice tells them to. but the clerk is not the justice. and the justice in this case, a giant in the court, thur good marshall, he made up his mind how he was going to vote. justice brennan was another person who spent a great deal of time trying to figure out how to bring both sides of the

court together. justice stevens has that reputation of being able to do that. i have no idea of what justice stevens or justice brennan told their clerks but i'm sure they said, look for points on this particular area or this particular area. let me take a look at it. and if i was a justice of the supreme court i would ask them to bring me my predigs position in a certain way. i would ask them for all the law but i would also ask for all the law the other way just in case i'm wrong. >> we have about 10 minutes left. >> one of the selling points the obama administration has made is that she could be a consensus builder in the court. do you think that's the possibility on the court as it now staunds or anything in her background? >> i don't know. you know, i know all the members of the supreme court. been friendly with most of

them. but i don't know. i know, say, justice scleea was saying nice things about her the orttede day he is one of the two most conservative members of the court. maybe that's what they hope. i don't know the answer. i would like to see a court that is less polarized. i don't think it helps the credibility of the supreme court to have all these major cases like the citizens united case being 5-4 decisions, like bush versus gore being 25-4. i think that's -- -- 5-4. they credible. again like we talk about board versus education, they kept that there for over two years until they had a unanimous court knowing that that was so shocking at the time the decision came down that people were going to have a difficult

enough time with it anyway, especially in the south. but nobody would respect it if it was a split court. i would like to see us go back to more consensus decisions. >> you mentioned citizens united a number of times. do questions about that case play a large role in the hearing? and whether you think that the public agrees with your contension that that was so wrongly decided chfs obviously the side that elena kagen took in the case. and also other issues that you think will come up in terms of constitutional or presidential issues. >> i think the public agrees with me. they have had a number of significant national polls on that. they find the public is overwhelmingly against the idea of allowing corporations with their huge amounts of money and huge ability of influence already to get involved in political matters. again, the example i used would bp want to make sure the elect

people wouldn't criticize that they made mistakes in the gulf. so i think the majority of people feel that was wrongly decided and i think it does hurt the credibility of the court when they come down with a decisions that so wiped out and ignored and overruled decades upon decades of precedent. so i think that's a major one and will be looked at certainly as the question of the new littlely led better case going to be uphe would if it comes up on ampeal. and this would probably be a difficult one. what about the appeals coming up on the health care bill we passed, some several attorneys general have held a lot of big press confence fr about how they're going to overturn it. i think people find if they've got a deebt child don't want it overturned. but if that comes to the supreme court, how are they

going to rule? >> the hearing is still a week away. can you tell us any details about what we can expect including witnesses? any former soldiers that can testify to what she did at harvard? >> there will be, i spose, some outside witnesses. there always are. you've cord a lot of these things over the years. can you name a half a dozen of the people who showed up as outside witnesses? and identify sat through every one of those and i was scratching my head thinking who were some of the outside witnesses we've had? i guess both sides have to feel like they have to have -- and i applaud them for taking the time to do it. but most people don't listen. if you can't make up your mind based on what you've read, based on what you've heard, based on what your questions and answers are, you don't decide to be on the senate judiciary committee. and i've urged senators, ignore

single issue groups of either the right or the left. you're the one elected, not them. make up your mind. you vote for or vote against but make up your mind not based on some political action group. >> what have you learned about elena kagen sibssh process started? she's been through a conif i rememberation process once before. but how quowled you describe her if you had to? you mentioned several times only 100 senators get to vote. >> i knew her before when she was in the white house before, and i of course sat on her conif i rememberation hearing and vote for solicitor general. i've always been impressed with her intellect. she is extraordinarily good lawyer. i get the impression she is ready. she is ready, she is eager. this is not a case of this is

my civic duty, i will do it. she is ready, eager, willing to do the great deal of work and thought and care that goes into being a supreme court justice. i'm very, very impressed with her. just as i was with justice society mire. >> she is going through i can only assume a pretty intense series of boards, hearing rehearsals. but i wonder if you could tell us what you do to prepare for the hearings and what you'll be doing the last final days before you get started with your opening statements. >> the past several ones we've had a recess just before them and iver been able to go up to my house in vermont in my chinos and t shirt and sit under my favorite am tree but i'm away from the phone, the computer, the blackberry, and i can just sit there and read and read. i've been trying to do that

evenings and weekend getting off quietly. i can't do it all at once, but i try to get away from the phone, from the fax and the computer and the blackberry, which members of my family refer to to as my crack bri. i try to get away from those and just see how much i know of her in this. how much is just writing, how much is the real person. and then i think when i come in there i'll have enough of a sense of her from her writings of what her thoughts and abilities and all, and then i will ask her specific questions. and i will be one of the very few senators who will be there for the whole hearing. and whatever questions asked. i mean, not -- this gets to be a case where every question has been asked but not everybody's asked it so some will ask the same questions over and over and i will sit there and listen to them. >> you mentioned not having a recress this time. i know republican senators

would very much like you to push the hearing back after the july 4th recess. is there any circumstance you can envision where you would delay the hearing if they ask you? >> i can't think of any offhand. i'm always open to suggestions but none occur. what i try to do is just so nobody can say we've been partisan. i've taken the schedule for john roberts and societya myor, which turned out to the day to be the same and will try to do the same schedule. she is going to take a day longer only because i don't want to start the hearings on a sunday. we have to go to mass on sunday. i will start it on monday. but everybody will have had plenty of time. we have got a lot of stuff to do in the senate. i want to get it done so that the vote, the final vote will be before the august recess because she has if she is confirmed, she has to set up her chambers, hire law clerks,

do those things that take time to do. >> how long do you suspect the heargds will last? more than a week? >> they'll last more than a week. we'll be about the only people in town on the 4th of july week because i'll keep on going. they will last until we finish. i would hope it would not go into a second week because my family will be in vermont and i imagine most other senators will be in their home states. >> can you give us a sense of what the timetable is after that? >> that's up to senator reid the majority leader. -- we have to have the vote first in the committee i would hope that they would not put over but as you know, under our rules, the first time a person comes up in the committee, anybody has the right to put it over for one week. and certainly i would -- if

somebody asks, i would protect their right i wouldn't i thy wouldn't. but i would suspect time in july the leader would want to have a vote on the floor. >> what do you feel like her greatest vulnerability is going into the hearings? what is the biggest questions she will have to answer from the other side? >> i can't think of any. and, i mean, there's a question of precluding is such a red herring it will be asked. but that one is something you can knock out of the ball park. certainly anybody who wanted to be recruited was recruited at that time. certainly she shows a huge amount of respect for veterans and those who serve. and i've found that in my private conversations with her as well as her public one. so i don't know what is going to be the most difficult. but i have a feeling that no matter how difficult a question is asked, this is a woman who will be able to answer them. >> we will have to leave it there. thank you for being on nake.

>> happy to news makers. >> we are back with our reporters. julie, let's start with you and the committee makeup of the senate jishly panel. when the hearing start on jewel 28, there's -- june 28, chairman lay hi walked us through the timeline. how do you suspect she will do on a final vote? and will she go to the senate floor? >> i think we're all assuming that all the democrats on the committee will back her, though yes there's an open question whether some of the republicans on the committee who supported her when she was up for solicitor general last year will do so again. a number of them have said quite emphatically that that vote shouldn't be taken as a signal of what they are going to do this time. so she could get as many as three or four republicans voting for her depending on how she does in the hearings and

how they feel that will play politically. they are getting a lot of pressure from outside groups, antiabortion rights groups, for example, to say this is an extreme nominee. you really ought not to vote for her. but because the committee is so skewed in democrats' favor, there is very little they can do to block it. and i think it's pretty clear that she has a majority to go to the floor. >> when viewers turn in, what's the dynamic of that judiciary committee? >> well, it's interesting. you have 19 people on the committee, 12 democrats, 7 republicans, and they were there last year. so there is a familiarity and last year you had the departure of some icons like biden who is now the vice president, ted kennedy who had dominated the hearings of the past. so it was sort of a new era. senator leahy is with kayen if she is confirmed to have sat through the h