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H1N1 Flu Update With Top Federal Officials; Remembering Jack Kemp

Aired May 3, 2009 - 11:00   ET


JOHN KING, HOST: And here's what's still to come in our STATE OF THE UNION report for this Sunday, May 3rd.

The numbers keep mounting around the world as more cases of H1N1 influenza are found. Should you be worried?

In just a moment, you can call in and put your questions directly to the people in charge -- Secretary of Homeland Security Janet Napolitano, the health and human services secretary, Kathleen Sebelius, and Dr. Richard Besser. He's the acting director of the Centers for Disease Control. They're all standing by.

Then, Justice David Souter is retiring and change is coming to the Supreme Court. What should President Obama look for in a successor? The professor who was his mentor at Harvard Law joins the best political team on television for a look at all the angles.

And Republican Senator Arlen Specter is now a Democrat. It's big news on Capitol Hill, but what will it really mean when it comes to counting the votes? We'll ask two senior senators about that and much more.

That's all ahead on STATE OF THE UNION.

A live picture of the White House on the first Sunday in May. Plenty of advice this Sunday for the man who lives there, for President Obama, as he considers the choice that all presidents hope for, a chance to fill a vacancy on the Supreme Court. The newest Democrat on Capitol Hill advises the president to put diversity near the top of his checklist.


SPECTER: I think it's important to have an Hispanic on the court at some point, important to have more than just one woman on the court, and more than one African-American. And it would be good to get people who know something besides wearing a black robe.


KING: But some of the Republicans Senator Specter left behind say when they hear President Obama talk about looking for someone who understands what it's like to be African-American or gay, they get worried.


HATCH: It's matter of great concern. If he is saying that he wants to pick people who will take sides, he has also said that a judge has to be a person of empathy, what does that mean? Usually that's a code word for an activist judge.

SHELBY: If he will appoint a pragmatist, someone who is not an ideologue, that -- someone who is not just going to light all of the light bulbs in America on the left, I think that would be good for the country.


KING: And as Republicans try to repair their damaged brand, they insist there's nothing wrong with the message of low taxes and less government. But a leader of a new effort tells us the Republicans would be smart to take some lessons from the Democrat who just beat them.


CANTOR: President Obama is a great communicator. We understand that. He has also been very adept at adopting the technology of today to access the youth vote and the younger population of this country. That's the future, and I believe we've got a lot to learn.


KING: As you can see, as always, we've been watching all of the other Sunday shows so maybe you don't have to. We'll get more of that conversation about the Supreme Court pick and about politics, but first we want to spend a good block of time talking about the H1N1 flu virus and what your government is doing to keep it under control.

Joining us here in the studio: Dr. Richard Besser, he is the acting director for the Centers for Disease Control; the secretary of homeland security, Janet Napolitano; and Kathleen Sebelius, who, just days ago was sworn in as the president's secretary of health and human services.

Thank you all for joining us. And I want to note to our viewers that this is the fifth, you three have been out all morning on all of the Sunday shows trying to project an image that the administration is on top of this, and to answer the American people's questions. One of the things we want to do uniquely this hour is we're going to take some questions directly from our viewers. We'll have a number on the screen you can call in if you want to put a question to any of our distinguished guests.

We also have questions from and from Facebook we will get to. And I want to start with one of those questions, because this broke last Sunday when we were live on television here. We watched the first briefing. And here's one question that Devin sent in to And I think this is a question we hear quite a bit.

"Can someone please tell me what makes swine flu so different from regular influenza?" Dr. Besser?

BESSER: Well, that's a great question. And the difference between this H1N1 and the seasonal flu is that this is a new virus that people haven't seen before. And so, when that happens, and it happens every number of years, there's not the protection in the community and so more people are at risk of getting it.

When this initially starts, you don't know, is this going to be a virus that is quite severe like some of the pandemic strains, or is it going to be a virus that acts more like a seasonal flu strain?

KING: And as we have watched this unfold, again, it started last Sunday when we were on the air, it has progressed throughout the week. I want to give our viewers some context. We are now at 160 cases confirmed, H1N1, here in the United States. One death, the toddler who died in Texas. And it has now gone to 21 states, from Arizona all the way over to New York in the Northeast.

Secretary Napolitano, you know the government models. There are people out there running through the projects. We went from a small number last Sunday to 160 today. What is the projection for where we will be a week from now?

NAPOLITANO: Well, that's probably better answered by Dr. Besser, but what we were saying last week is the same thing we are seeing this week which is we are leaning forward here.

Every day we know more about what kind of flu we're dealing with, how severe it is. Every day we talk to people about taking responsibility, what they can do to help, you know, control the spread of the flu.

And we fully anticipate that this will be just that, you know, spread nationwide and a number of people are going to get this flu.

KING: Do you have a projection that you trust now? Is it 1,000, is it 5,000, is it 10,000 before we're done?

BESSER: No. We can't project that. We know that each year with seasonal flu it affects over 30 million people on average, 200,000 are in the hospital and 36,000 die. And so, with a new strain of flu circulating, we know that a lot of people are going to get sick. The good news is that the typical season for flu is winding down, and flu viruses don't spread as well in the spring and the summer as they do during flu season.

KING: I want to go back to the week we've just been through as we now talk about week that's ahead, because when this first came out -- and the reason you're all here is to show the administration is on top of this, to answer the questions, but there have been a few hiccups, I would say, along the way, maybe mixed messages.

Now let's start with last Sunday. You found about this, you decided to talk to the American people. Secretary Napolitano, you went on camera and said, don't panic, be prepared.


NAPOLITANO: On the declaration of emergency, I wish we could call it declaration of emergency preparedness because that's really what it is in this context.


KING: And then a couple of days later, some people were saying should we close the border, should we shut down air traffic between the United States and Mexico? The transportation secretary, Ray LaHood, came out and said, no, that's not necessary, the administration is not considering steps like that.

But then the very next morning the vice president was out on a nationally broadcast news program and he was speaking, it sounded like, more like a parent than the vice president. Let's listen.


JOE BIDEN, VICE PRESIDENT OF THE UNITED STATES: I would tell members of my family, and I have, I wouldn't go anywhere in confined places now. It's not that it's going to Mexico. It's that you're in a confined aircraft. When one person sneezes, it goes all the way through the aircraft. That's me. I would not be at this point if I -- if they had another way of transportation, suggesting they ride the subway.


KING: So, Secretary Sebelius, I've heard you speak several times about this from the perspective not as a cabinet secretary, not as a former governor, but as a parent. Is that was the vice president was doing there? He was off the talking points, because the administration does not want to cause panic, rightly so, I understand. But is that maybe not bad advice from a parent? If you don't have to, don't get on a plane, don't get on a train?

SEBELIUS: Well, I think what the vice president quickly clarified is we're giving that advice to people who are sick. Do not share your illness with others. Don't get on a plane. Don't go to a confined space. Don't go to school. Don't go to work. Stay home. That's great advice.

And parents need to take that advice for their children. That's why the school issue is so important to try and keep it from spreading. We know this virus spreads quickly and that's why we're kind of leaning forward and saying, if there's a confirmed case at a school, shut the school down to try and make sure that every child in that school doesn't pick it up.

KING: I want to get to our viewer questions in just a moment. But you bring up that point. If you're feeling sick, don't go to school, please don't go to work. Just take a few days.

SEBELIUS: Call your doctor first.

KING: Call you doctor. Call you doctor.

We were looking at the research, and looking into this. And eight out of 10 people in the food services industry who make $7.25 an hour or less, eight out of 10 do not get paid sick leave.

SEBELIUS: That's right.

KING: Is that a concern to you, that if I work and I don't want to name any names, I work at a fast food outlet, I work in a kitchen, and I'm feeling maybe a little flu-ish, but you know what, I've got to feed my family, I've got to pay my rent.

SEBELIUS: Well, the president, I think, made a great point in his address on Saturday. He made the point the day before to the cabinet who he assembled to deal with this, we really need a partnership with employers and we need employers to, not only take this responsibly and seriously, but not punish people for taking the right health protocol.

We don't want people to lose their jobs. We don't want people to feel that, you know, they're going to be penalized if they take some personal responsibility. So, this is an effort where we need to join together.

And what has been good, John, is we've seen bipartisan support from Congress about various activities. We've seen the cabinet agencies coming together across the board. A great relationship between the United States and the World Health Organization. This is a time where we really need some support and some help.

KING: And, Dr. Besser, I think this one is probably best for you. This is a question from Carolee, she posted this question on our Facebook page. And she asked this pretty simple question. "I would like to know, how long does the flu last?"

BESSER: That's a great question. And there are really two parts to that question. How long am I going to feel bad? And how long might I make other people sick?

And so, what we're saying is that if you have the flu, you stay home for seven days, and add a day, one day on after your symptoms have gone away. That's going to insure that you're not going to go out and share your infection with other people.

In general, with a flu-like illness, you -- it comes on, you start to feel bad for a few days, peaks at around three to five days and then you -- it comes down and you're feeling better.

KING: I want to show Secretary Napolitano, before I move to the next question, you know, I just want to show the cover of Newsweek, because our business gets criticized during all of this. And here is the snout of a pig coming through a pen and "Fear & the Flu: The New Age of Pandemics."

Consider the cover and then consider this question from Julia posted on our Facebook site. "How do you walk the line between appropriate caution against what you don't yet know, and overreaction? Whose input is involved?"

NAPOLITANO: Well, first of all, we take our lead input from the scientists, from the Centers for Disease Control and Prevention, for example. And we try to be very clear with people about what we're doing and why and why the advice being given is being given.

But also understand that there is a balance to be struck here. The whole business of the country is not going to come to a grinding halt because we have an outbreak of the flu.

And so, every day we share with people, not numbers of cases, that's really not the most relevant factor. The most relevant factor is how widespread is it. But then what you can do to protect yourself, what you should be thinking about in terms of your own family, its preparedness, what you as an employer should be thinking about.

You know, in reality, this is great preparation, not just for flu but for so many things that can happen. So -- and the American people are responding. I saw a poll done I think by Harvard University the last couple days that show that people are really understanding the message about staying home, washing your hands, you know, don't -- if you're sick, don't share the illness with others.

That's the key message we continue to send.

KING: Much more of our conversation, two cabinet secretaries, the acting director of the Centers for Disease Control. Your questions about this H1N1 flu virus, we'll take your phone calls, more of your questions, a quick break first.


KING: Back with our distinguished guests, discussing the H1N1 virus, Dr. Richard Besser, Secretary Janet Napolitano and Secretary Kathleen Sebelius.

And let's get right to some of our phone calls. And there's a number on the screen to call in.

Carmen from Georgia, what's your question, ma'am?

CALLER: Hi, John. Thanks for taking my call. Congratulations on your show, by the way.

My question is this. When the question was first posed about closing the border for Mexico and the answer was given that we weren't going to close the border because the virus was already here, to me, that response really didn't make any common sense.

I mean, I don't -- I don't know what the reasoning is, or the thought process is, that we wouldn't at least temporarily close the Mexican border.

KING: Let me get your answer. Secretary Napolitano, the border is your business. Why? NAPOLITANO: Well, we take our advice from the scientists. And if the scientists had said that closing the border -- which, by the way, is an enormously complicated and expensive thing to do, but if they said that would be a wise thing to do to control the outbreak, we could have taken some steps.

But the advice was exactly the opposite. It actually would have distracted us from the steps we did need to take to protect the American people. And that was focusing on what we could do to contain the virus that was already within our borders.

KING: Let's go -- I believe we have some questions from Facebook. I have some on my list, here. If we have any fresh ones, you can put them up for me, right here. Otherwise, I'll go to one here.

Nancy asked this question on Facebook. "If you received the swine flu shot in 1976, are you at less risk than those who hadn't had the shot?" BESSER: That's a great question. And one of the things we're looking at very closely is, was there any protection from that shot in 1976? Is there any protection from the seasonal flu shot? And is there any protection by being elderly and having gone through many seasons of flu?

That's going to play in very, very big, as we move forward with our plans around vaccines, because that may help guide some of the issues around who is most at risk at getting this in the future.

We don't have an answer to that question yet, in terms of our people from 1976 who got that protected, but we're looking at that.

KING: We have another question from Larry. He asked this on And I think Secretary Sebelius, this one's probably more in your ballpark.

Larry says, "I'd like an honest assessment. Based on everything known to date, is the current flu outbreak worse than our regular flu season?"

Our most recent flu season -- regular flu, 36,000 Americans died.

SEBELIUS: That's correct. And we know, Larry -- I mean...

KING: I'm John, but you can speak to Larry. That's fine.


SEBELIUS: I'm speaking to Larry on the -- that that's likely to happen again this year. So, one of the things that we're doing is making sure we have the vaccine production ramped up and in place. We're accelerating the seasonal flu vaccine production because we know millions of Americans will be affected and we'll have deaths again.

So we want to make sure that's ready to go, at the same time, growing the virus strain and testing it for H1N1 to be ready to move into production, should that be the required course. So, both of those are going on simultaneously. I think Dr. Besser could tell you that there is some cautious optimism, right now, in terms of what is presenting itself in America, but it's early.

We know that, even if this doesn't present itself as a very virulent stream right now, it could come back with greater force in the winter and fall, when we get into flu season. So, this is no time for complacency. We want to stay out ahead of this.

KING: It's no time for complacency. Fill in a little bit more details on the cautious optimism.

BESSER: Yes, you know, there are encouraging signs. We're not out of the woods yet. But what we've learned about the virus itself, it doesn't contain the factors that we know are seen in much more severe flu strains.

Each strain that comes out may have other factors we aren't aware of, but the one we know about, it's not there.

We're learning more out of Mexico and we're learning more around this country. And what we're learning from Mexico is that, while they were initially reporting on the hospitalized patients and the deaths, it looks like there was widespread flu around the country, which would mean that this is a tip of the iceberg, the -- the more severe cases.

What we're learning around this country is that we're seeing a lot of flu activity. When it goes into communities, it does spread, person to person. But we're not yet seeing a lot of the severe cases that were coming out of Mexico. All those pieces are very encouraging. We're going to be looking for more data. And as we go forward, we'll be looking to see when we'd be able to -- to adjust our recommendations.

KING: I think we have another phone call. Laurie is on the phone from Rhode Island. What's your question?

CALLER: Yes. Hi. Thank you for taking my call. The reason I'm -- reason I'm calling is to ask if it's OK, or should people take one Tamiflu a day, just for protection or prevention of swine flu?

BESSER: You know, thanks -- thanks for asking that question, because it brings up a key point. Tamiflu is -- and Relenza are very effective at treating this flu. And so, seeing your doctor when you have flu-like symptoms, calling your doctor, seeing whether you're somebody who requires treatment is a good thing.

In terms of prevention, we're not recommending that. We're not recommending that for a number of reasons. One is taking medication when you don't absolutely need it always has side effects. Taking lots of medications in a community can drive resistance.

And we're really pleased, right now, that this strain is not resistant. But unless you have certain underlying medical conditions -- and you should talk to your doctor -- the use of these drugs for prevention is not indicated. KING: Let's get in another phone call, Joan from Kentucky. What's your question, Joan?

CALLER: Thanks for taking my call. If the swine flu mutates this fall, will you have an immunity, the second time around, if you have received it the first time around, if you received flu the first time around?

BESSER: That's -- that's a very interesting question. What has been seen, in some previous flu outbreaks and pandemics, is that people who got sick during the first wave actually had some level of protection when it came around again.

We won't know that until we see what happens in the fall. If the virus changes significantly, you would expect less protection. If it doesn't change very much at all, you might expect that there would be some protection. KING: I want to ask -- when I was over at your operations center the other day, at the Department of Health and Human Services, and a great team of people who were very gracious to let us in, at a time they're very busy, Admiral Vanderwagen of the Public Health Service says he has full expectation the World Health Organization will, within the next couple days, early this week, go to level six.

KING: So they will say this is an international pandemic. Those two words are going to scare people watching this at home. Explain what that means and why people should pay attention but maybe not get overly alarmed.

SEBELIUS: Well, first of all, there's a great line of communication, as you found out, between Dr. Chan, the head of the World Health Organization, and the Department of HHS, and CDC and others.

And what a level six means, the use of the term "pandemic," has to do with geography, how far this has spread, not severity, not seeing how many people die or how serious it is.

So, we have always been preparing as if it were level six, the kind of containment measures we're taking in this country, the recommendations that, if you're sick, stay home; wash your hands frequently; cough into your sleeve, not your hands, are steps that people can take -- getting prepared for a note coming home saying, Johnny or Susie needs to stay home from school for a few days because there's an infected case.

Those are steps everybody can take. But rising to a level six will change absolutely nothing that we're doing in this country.

KING: Secretary Napolitano, your department exists because of post-9/11 communication problems, and your operation center exists because of post-Katrina communication and coordination problems.

Secretary Napolitano, a simple question: How are we doing?

NAPOLITANO: Well, I think we've learned -- every time you go through an unfortunate episode, you know, you learn lessons. And hopefully, you put those lessons to good work.

And one of the things we have done is to really focus on how do we respond to an outbreak like this; how do we communicate; how do we make sure that, immediately, the secretary of homeland security is in touch with HHS, with CDC, with a variety of other Cabinet departments, with the private sector, so they can begin thinking -- with schools and school districts, and with the American people at large.

So, over the course of the week, the situation has changed; the science has gotten better. The more they know, the more we can say. But I think it has been important to be able just to communicate. We're ahead of this. We're working this problem. We're going to continue to work this problem.

KING: And, Dr. Besser, this all broke on the scene one week ago today. Can you say, on this Sunday, that this H1N1 virus is in decline now, or do we not know that yet?

BESSER: We don't know that yet. In fact, we expect the exact opposite. We expect to see, as we look, additional cases around this country. We expect to see additional transmission around this country. What we do know is a lot more about this virus and how it spreads, and the type of disease, than we did a week ago.

KING: Dr. Besser, Secretary Napolitano, Secretary Sebelius, thank you so much for coming in. And thank you for being kind to take the calls and e-mails from our viewers. We appreciate that very much.

And we appreciate all your calls and questions.

Coming up on "State of the Union," we head to New Hampshire, to the Tilt'n Diner, to hear from viewers like you. Straight ahead.


KING: To hear your voices this week, we decided to go back to New Hampshire. That, of course, is the first presidential primary state; also a state that used to be reliably Republican but has become more and more Democratic.

You see President Obama won with 54 percent, to 45 percent for John McCain, even though he's a favorite in the state. We had breakfast at the Tilt'n Diner. Look at this. It's a colorful place, the pink outside. It's a fabulous old-school diner. You have the stools right here -- an interesting place to go and get conversation.

How's the president doing so far?

And when you look around, is there anybody on the Republican side that makes you stop and listen?


KING: He said he was going to come to Washington and change the way it does business. That's pretty hard to do, isn't it?

(UNKNOWN): Yes. I think...

(UNKNOWN): It hasn't happened.

(UNKNOWN): Yes. It's an uphill battle.


I think -- I think -- I trust his -- his motives. I feel like he's an honorable guy. But I'm not sure if he can do it. That's -- that's the problem.

KING: And when you switched from the mortgage industry to working here...

(UNKNOWN): I did.

KING: ... in the restaurant industry...

(UNKNOWN): Yes, I didn't want to. It was a -- a forced unemployment because of the economy. I was dealing -- it was a very hard thing to do because a lot of the calls that I was getting were from people who were on the verge of foreclosure. They owed more than their homes were worth, and I couldn't do anything.

And I wear my heart on my sleeve. So, when I couldn't help them, you know what I mean, it was just really hard. So, you know, I decided that it was best to move on to something a little more stable.

KING: What about the government spending money? Is that a good idea?

(UNKNOWN): Well...

KING: I know you didn't support the guy, but is this a good idea, to spend all the money?

(UNKNOWN): Not necessarily. Some of it is. I don't think it has to be quite as big as it is. We're going to have to pay the bill, here, in another two or three years, and it's going to be scary when it happens.

KING: You supported Obama, but do you think it's better to have, as we did in the Clinton days, in the second term, where you had a Democratic president and Republicans controlling at least one branch of Congress, or both George W. Bush and President Obama started their terms with their parties running both chambers of Congress?

Do you think it makes a difference? Do you prefer checks and balances, or should one party get the shot?

(UNKNOWN): I don't think that it necessarily should be one party that gets the shot. I mean, if I look back to when Clinton was president, things were good. You know? It was -- I don't think there was as much concern as there is now. It seemed to all work.

I just think, whoever the party is, whether we have half-and-half or all -- you know, a majority of one, we just need to work together.

KING: On that point, opposing views. You supported Obama.


KING: But is there anybody -- when you watch the debate, is there anybody on the Republican side, or anybody, maybe, from the conservative side or just not the Obama side -- let's not put a label on it -- when they speak, you say, that person is interesting, I want to listen to that, or I wish the president would consult with them and listen to them?

Or do you think you have him and a vacuum?

(UNKNOWN): Right now, I have to tell you...


... I am completely disillusioned with the Republican party. I can't even look at any of them and feel anything but disgust, because it just seems to me that, when Obama tries to do something, put up any kind of policy, their first reaction is -- it's just, like, "No." That's it. They won't even hear it. They won't even try it.

And then, if they ask them, OK, do you have an alternative -- because that's what he's done; he's asked them, do you have an alternative to what I proposed, they're like, hum, hum, hum. They've got nothing.

KING: Do you disagree or agree with that take?

And do you think his outreach is genuine, number one?

And number two, who do you listen to on the other side?

(UNKNOWN): Well, I think his outreach, at this point, is genuine. However, I don't know that he's getting all the advice -- the proper advice that he should be getting. I don't know where it's lacking, for sure. We go through this regardless of which party's in there.

When the Republicans were in charge, the Democrats fought everything.

(UNKNOWN): Now the Democrats are in charge, the Republicans are fighting everything. It's a game.

KING: Anybody you look to on the other side at all even though you're an Obama supporter?

(UNKNOWN): You know, I have to say during the elections, if there was a Republican initially I would have voted for, it would have been McCain. I didn't choose him. I think he had very good ideas. I just didn't like his choice of running mates, and that was a huge determining factor for me.


KING: Our thanks to the folks at the Tilt'n Diner. Great conversation up there.

And up next, a legacy decision for President Obama. The chance to fill a seat on the U.S. Supreme Court. Our panel includes a former law professor, a mentor of a guy named president, now misses (ph) Obama. STATE OF THE UNION will be right back.


KING: I'm John King, and this is STATE OF THE UNION. Here are stories breaking this Sunday morning. The number of swine flu cases is climbing. The World Health Organization now says there are more than 787 cases in 17 countries, most of them in Mexico. The CDC just updated the number of cases confirmed in the United States from 160 up to 226.

A frantic search for possible survivors after a tropical storm triggered massive landslides and flooding in the Philippines. At least 11 people were killed. Most of them were burned by piles of mud and debris as they slept in their homes. Nine people are missing.

Jack Kemp, the former Republican congressman and vice presidential candidate, died Saturday after a long battle with cancer. Former President George Bush said Kemp will be remembered for his significant contributions to the Reagan revolution and his steadfast dedication to conservative principles. Congressman Kemp was 73. Those are the headlines on STATE OF THE UNION.

Live picture of the White House. You see the clouds blowing by on this Sunday morning, May 3rd here in Washington, D.C. The man in that White House now has a decision to make that all presidents wish for, the chance to fill a Supreme Court vacancy.

Let's discuss it with a great high-powered panel. Joining me in Berkeley, California, Maria Echaveste, she was the deputy chief of staff to President Clinton. In Boston, CNN senior political analyst David Gergen. In our New York bureau, senior legal analyst, Jeffrey Toobin, read his book as we go forward on this pick. And with me here in Washington, Professor Charles Ogletree, he's at the Harvard Law School, one of his past students, a young man named Barack Obama.

And I want to start right there, Professor. You're having these classes, you know, a young man in your class, I don't know if you knew at the time he would go on to become the first African-American president.

I want to get your sense -- you know the pressures he's under. Name an African-American, name a Latino, name a woman. How will he approach the choice?

CHARLES OGLETREE, HARVARD LAW SCHOOL: Well, I'll tell you what he won't do. Barack Obama won't sleep at a Holiday Inn and have an epiphany and just say, I have got the right choice.


OGLETREE: He is the best person in a position to make this choice. He is a constitutional scholar. He is a constitutional warrior. He is a public servant. And I think he's going to find somebody who is brilliant, who is young, who is stable, independent, and mature.

And I think -- I've gotten a lot of text messages and e-mails from people I haven't heard from in decades who want the job, but I think Barack Obama will be able to find the right person to do it.


KING: So I want to -- before I bring in the rest of our great panel, I wanted to listen to the president of the United States himself because, as you know, one of the questions -- there are the questions about gender and racial background and this and that. There's also a question of, do you pick a judge or do you go outside and pick somebody from politics?

Let's listen to the president of the United States himself about just looking for academics.


OBAMA: Sometimes we're only looking at academics or people who have been in the courts. If we can find people who have life experience and they understand what it means to be on the outside, what it means to have the system not work for them, that's the kind of person I want on the Supreme Court.

(END VIDEO CLIP) KING: Jeff Toobin, it's the first choice, this president will likely get more than one. Is the safe course to go to somebody who already has the title judge or do you look for a governor, do you go off the board?

JEFFREY TOOBIN, CNN SENIOR ANALYST: Well, I think the safe choice is a judge, but this is a president who has got 60 votes in the Senate. He has got a lot of running room here. He can pick whoever he wants.

And also this is not just a choice about who will be on the court but it's going to define Barack Obama's presidency in the way that John Roberts and Samuel Alito defined George W. Bush's presidency.

This will say a lot about what he thinks he wants to be remembered for long after he's gone from the presidency.

KING: And so, Maria Echaveste, you have worked in the White House. You have been in there dealing with all of this political pressure. Among the pressures on this president is, you know, you just won two out of every three Latino votes in this country. There has never been a Hispanic on the Supreme Court.

What are the political pressures? And just on that one question, is that a no-brainer right there? Is that -- does he have to check that box now?

MARIA ECHAVESTE, FORMER CLINTON WHITE HOUSE DEPUTY CHIEF OF STAFF: I don't think he has to check that box right now. What he needs to do is what does the court need? And that means diversity but really, broader than just race, what does he need politically?

Yes, Latinos, women is an important constituency. But I'm with what we've just heard. We need someone who is really intellectually -- can go with Scalia and Roberts but can bring that diversity of experience.

KING: David Gergen, I want to bring you into this conversation. I want you first to listen. We had the chairman of the Judiciary Committee, Pat Leahy of Vermont. He, of course, is on President Obama's side. He's a Democrat. He has been through a lot of these confirmation battles. I asked him what did he want.

Listen to what he doesn't want.


SEN. PAT LEAHY (D-VT), CHAIRMAN, JUDICIARY COMMITTEE: I don't want to see an ideologue of either the right or the left. And I don't think we're going to have one.


KING: "I don't want to see an ideologue." Is he sending a message to the White House, David Gergen, about, look, keep this one in the middle? DAVID GERGEN, CNN SENIOR POLITICAL ANALYST: I don't think he's saying keep away from somebody on the left. I think he's asking for the president not to find somebody from the rigid left who is driven entirely by ideology.

And in thinking about this, I went back to Barack Obama's book, "The Audacity of Hope" where he has a whole chapter on -- of what he thinks about the Constitution and the court. And he makes it clear, listen, there have been two sort of factions in the court recently.

There's a Scalia faction, which believes in going back to the strict constructionism, the original Constitution for interpreting everything; versus the Stephen Breyer group, which believes the Constitution is a living document that ought to adjust to the times.

And you look for -- interpret the Constitution through values -- through constitutional values. And Obama comes down very clearly on the Breyer side.

And whether he goes for a woman or Hispanic, which I think he very likely will go for one or the other or both, I think much more important is he's going to start reshaping the court to make a Breyer- type majority over time, just as he's reshaping our politics, he's reshaping our economy.

This is his moment to begin reshaping the judiciary and leaving a longtime stamp upon American judicial thought. KING: So, Professor Ogletree, help elaborate on the point David just made, because it's fascinating one. The easy, reflexive thing to say is Souter was to the left of center on the court, President Obama is going to pick somebody left-of-center on the court.

So you're not really changing anything, you're just maybe getting somebody younger, maybe dealing with some political constituents that you want to deal with.

KING: But in terms of the court and its balance, what does he have an opportunity to do?

OGLETREE: Well, to set a tone that he's going to be a president who will pick someone who he believes in, who will be there for a long time and make a big difference in the court.

In order to change the court, he'll have to have four picks, which means at least two terms, and it may mean a Democrat after 2016. So, it's not an easy thing to do, but I think he's going to look at people of every race, gender differences, but he's also going to find somebody who's a practical, thoughtful pragmatist.

And I think that is going to be the biggest quality, somebody who can fight with the biggest brains but also can work things out. His biggest hero was Earl Warren, not a judge. He was a Republican. He changed the world with Brown versus Board of education, in 1954.

So, the Earl Warren incarnate will be somebody that Barack Obama would be looking for.

KING: I want to talk more about things like that and more about the scope when we come back.

And, Jeff, I want you to come in.

Maria, on the point Professor Ogletree just made, that to change the court he would need four picks, meaning a second term, do you think about that when you work inside the White House and so you might think if we need two terms, our first pick better not be one that gets us in political trouble?

ECHAVESTE: No. I actually think it's a slight calculation, but really it's more, what are you willing to fight for? And one of the things that he has an opportunity for here is actually to lower the decibel level, because it is replacing Souter.

But I really agree with Charles about looking for someone outside of the bench, someone who could really help change the discussion within those nine justices.

KING: And, Jeff, you wanted to jump in when Professor Ogletree was talking about the Earl Warren as the hero.

TOOBIN: I do. And everybody is talking about excellence and changing the discussion. There's going to be plenty of the old discussion here, and President Obama is committed to picking a justice who will protect affirmative action, who will protect women's abortion rights.

Don't kid yourself that we can talk about these abstractions all we want, but these substantive views about Roe V. Wade, about whether universities can consider race in admission, whether employers can consider race in admission, Barack Obama has well-settled views on those issues and he's going to pick a nominee who shares those views.

KING: That's a perfect segue to where we will pick up when we come back from this break. We're going to take a quick break. We have a very distinguished panel here. When we come back, we'll talk about the cases pending in the courts, the challenges facing the president and the Supreme Court, much more of this conversation.



KING: Back with us, Maria Echaveste, David Gergen, Jeffrey Toobin, and Professor Charles Ogletree.

And I want, as we continue our conversation about this vacancy now in the Supreme Court for President Obama, just to show our viewers the current class photo of the Supreme Court so they get some perspective there.

You have one African-American, Justice Clarence Thomas, one woman, Justice Ruth Bader Ginsburg, the other justices arrayed there. We were just talking about how Professor Ogletree says President Obama would need four picks to change the court.

David Gergen, come in on the point Jeff Toobin left off at, that, look, we could have a conversation about experience, we could have a conversation about most qualified, but President Obama has clearly defined views, as Jeff said, on a number of the big issues that are likely to come before the next court and the court after that.

How much does that factor in when you're in the room, they give you the list, and you're thinking, OK, variety of judges, what's coming up next term or what might come up over the next 20 years? How do you balance that?

GERGEN: I have to say, John, that I think that about half a century or so ago this was less important. But over the last 30 or 40 years, the presidents have asked first and foremost about the views of the person and they look for someone who is congruent with their own views. And that becomes really important.

Jeffrey Toobin was absolutely right. The first priority I think that Barack Obama will have in selecting a new justice is, does this person share my sense of the Constitution and what it stands for on affirmative action, on abortion, and on several other leadings issues?

And then once you define that universe, that circle of people, you begin looking for these other qualities, whether it's gender or race or age or these other things. But -- and I wanted to ask Charles Ogletree, he knows much more about this than I do, but if Justice Kennedy were to resign unexpectedly, one more seat might give Barack Obama a 5-4 solid majority, would it not?


GERGEN: And does it really take four necessarily to get there?

OGLETREE: Well, that's the fourth one, if you talk about the two candidate who people are projecting might be retiring at some point, Justice Ginsburg because of health, and Justice Stevens, that would be three with Souter. And it doesn't matter who the fourth is, but the fourth would make a big difference and the court would change, no question about it.

KING: And let's talk about some of the things in the pipeline. And one of the things that has been in the news the past week or so because of the release of these memos is the whole terrorism detainee treatment.

Power of the presidency, not just on the torture issue, but since 9/11, the power of the presidency has bee an issue that has made its way through the courts.

Jeff Toobin, looking ahead to cases in the pipeline that the next court might consider, is that an issue on the table for President Obama who wants a break from President Bush and would like a court that backs him up?

TOOBIN: It might be, but, you know, John, I was in court, I was at the Supreme Court on Wednesday, the last day of arguments for this term. And there was an argument about the voting rights case, one of the fundamental civil rights laws in our country.

And it was pretty clear to me that there are five votes on that court to strike down, to declare unconstitutional one of the key provisions of that law, Section 5. And, you know, that just illustrates how conservative this current court is.

You know, we have four very conservative justices, four liberals, and Anthony Kennedy in the middle, but he's usually with the conservatives and he usually -- and he sounded on Wednesday like he's going to strike down this law.

So I mean, it just shows you what -- as the rest of the government, the executive branch and the legislature, is moving to the left, the Supreme Court as currently constituted is not.

KING: And so, Jeffrey Toobin mentions the Voting Rights Act. Maria Echaveste, you're joining us from Berkeley, California. California, same-sex marriage. Same-sex marriage has become an issue in California, in Iowa, the New Hampshire legislature is considering it now, other states are moving forward. Is that an issue that a president thinks about and asks about when looking at someone to serve on the Supreme Court as that issue trickles up? ECHAVESTE: I don't think he'd ask specifically, what would you do in that case? That's not an appropriate question, frankly. It's more an understanding of the judicial philosophy.

ECHAVESTE: Are you going to be along the lines of Scalia, in terms of original intent and, sort of, the Constitution as this dead document, versus really understanding the Constitution has been a place that allows the court to really reflect our changing views of what it means to have rights in this country?

And, so, I think that that's going to be more important. The Supreme Court has an important case involving the provision of English language instruction for English language learners that is hugely important for the growing Hispanic population.

And, so, I'm worried about the conservative section, if you will, of the court, as Jeffrey said.

So I think that there is so much at stake, even if we think that the Souter seat should not be that controversial, because of the cases that are bubbling up that really affect people's daily lives, their schools, their workplaces, even their individual relationships.

KING: And, David Gergen, as you try to decide what you're looking for and who you're looking for, does it make a difference?

Bill Clinton and Barack Obama, the two Democratic presidents we watched make this choice were lawyers and constitutional law professors. If we go back to Ronald Reagan, or George W. Bush, more recently, they were not lawyers.

Never mind that you have left of center, right of center. Just in terms of the experience, life experience, does that make a difference?

GERGEN: Absolutely. And the fact that Barack Obama spent 10 years teaching constitutional law at the University of Chicago -- and not only that; to top it off, both he and Michelle Obama both studied under Charles Ogletree.

You've got -- we have almost a unique situation, where, you know, a president knows a lot about this, is very comfortable with it, and, I think, will be fairly sure-footed as result.

He's -- you know, he's thought and deliberated about this a great deal. He's been writing about this for years.

So I think that -- and, to make one more point, the Democrats, right now, of the nine justices, only have two appointees on the court. And that's why the prospect of having two, three -- and if he has two terms, he could really reshape the Judiciary, not only at the Supreme Court level but at the Courts of Appeal level. And that would make an enormous difference over the long haul, as I think Jeffrey -- well, everybody on the panel would agree.

KING: So then let's close with his professor and his mentor. Professor Ogletree, you taught him as a young man, as David noted; his wife, you taught her, as well. He's now a politician. A lot has changed since then.

How is he the same? How is he different, in the sense of, would he make this choice now in a different way than you think the young man in your classroom might have made it?

OGLETREE: Not at all. I think Barack Obama had moral courage when he was a law student; when he was a state senator; when he was U.S. senator; and now as president.

He's going to make the right decision. And I think he's going to find that he'll look at African-Americans, at women, at Latinos, white men and women. There's no one that's going to be off the list.

And what we will say is, at the end of the day, Barack Obama's not going to select someone who we'll say will give us that sense of shock and awe. He's going to select somebody and we're going to say, "You know what? That was a good choice."

KING: Does it matter to him that he gets 70 votes or 51.

OGLETREE: Fifty-one. That's all it takes. Everyone will be called Mr. or Ms. Justice.


It won't change at all.

KING: Fabulous conversation. We'll do more of it as the president mulls his choice in the weeks ahead.

Professor Ogletree, Jeff Toobin, David Gergen, Maria Echaveste, nice to see all of you on this Sunday. Thank you so much.

And up next, Bill Bennett joins me to discuss the legacy of his close friend, former vice presidential candidate Jack Kemp. Stay with us.


KING: We want to take a moment now to reflect on the legacy of Jack Kemp, the former Republican Congressman. He was a housing secretary, a vice presidential nominee. He died last night after a battle with cancer.

Jack Kemp was 73 years old, a former professional football quarterback.

His very close friend, one of his best friends, Bill Bennett, joins us from Southport, North Carolina.

Bill, back in 1993, you and your friend Jack founded Empower America, a conservative think tank. I just want you to take a moment to reflect on this sad moment. BENNETT: Well, we lost part of our heart today, John, one of our great voices, one of our lions. You know, there's a lot of talk, these days, about who will be the next Ronald Reagan. A few of us were thinking, this morning, who will be the next Jack Kemp?

He played a very important role in this party and indeed in this country.

KING: And, Bill, I want you to expound a bit. You know, a lot of talk, now, about what happened in the last election, the historic Obama candidacy.

Jack Kemp, way back when, was getting in the face, politely, with that big smile of his, of Republicans, saying, you know, there are blacks in America we need to talk to.

BENNETT: Absolutely. Well, of course, Jack was at everybody. You know, Jack loved everybody. Jack even loved economists, John, you know that?


Jack loved everybody. He was the quarterback in the huddle, bringing everybody together. But absolutely, he led this party into the inner city and said freedom is for everybody; opportunity is for everybody; enterprise is for everybody.

And, you know, a ton is being made out of that, and that's right, but we've got to remember the message that Jack brought into that city, into that inner city. It was a conservative message of school choice and of pro-growth and of an economics that would -- that would lift all boats.

He was a pro-freedom guy. The speech, the message never changed. He was -- he was an enthusiast. He was -- he had the heart of a lion. And his voice will be very much missed.

You know, we -- we look, now, at this time of transition for the Republican Party, and rethinking for it, yes, who the next Reagan is and who the next Kemp is.

He was a, kind of, indispensable source of energy -- wattage. When you think about Kemp, you think about wattage.

KING: And, Bill, expand a bit on that, because I remember Jack from early campaigns, and then when he was Bob Dole running mate. He always had that big, infectious smile, always had the big head of hair... BENNETT: Yes.

KING: ... always had the hand shake. He swooped across, gave you a big handshake. You knew when you were around Jack Kemp.

BENNETT: Yes. Elaine and I -- my wife and I were just talking about New Orleans. And a lot of us thought Jack was going to be the vice presidential nominee. He wasn't. We all had dinner that night at Commander's Palace. Where was Jack? Where was Jack? Was he sad? Was he depressed?

Nope. Jack was in the kitchen. He was talking to the busboys. He was talking to the waiters. He was saying what a great country America is; you've got to vote Republican; we believe in enterprise; we believe in freedom.

That's where Jack Kemp was. He wasn't depressed. He was a lion. He was always up for the next -- for the next hunt. And we shall miss him. Gosh, we shall miss him.

KING: Bill Bennett, we thank you for your thoughts and reflections on this sad day, this morning, again, reflecting on the death of former congressman, former vice presidential nominee Jack Kemp from Buffalo, New York, former quarterback, as well. Jack Kemp was 73 and he will be missed.