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Special Coverage of Elena Kagan's Confirmation Hearing; Replacing the Afghanistan Commander

Aired June 29, 2010 - 09:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


CANDY CROWLEY, CNN ANCHOR: Good morning from Washington. You are looking at the flag over the U.S. Supreme Court which is out of session now. In fact, it went out of session yesterday.

They are now minus one justice. And that's what they are taking care of.

Not too far away at the U.S. Capitol, another hot steamy day here in Washington. Inside pretty cool so far. But the Senate Judiciary Committee meetings you will see on the left of your screen. On the right of your screen, the empty room right now will start to fill up because at 9:30 Eastern Time, we will be at the confirmation hearings of General David Petraeus to become the commander with -- of U.S. and allied forces in Afghanistan.

Of course, David Petraeus used to be the head of CentCom. Now he is taking a demotion and wants to go over and take over in Afghanistan. Clearly a huge, huge priority for the Obama administration.

The fact is that this comes in the wake of a firing of General Stanley McChrystal who said some untoward things, shall we say, in "Rolling Stone," in an interview. So he's retiring.

And so we will hear those confirmation hearings, will be less about David Petraeus. More about the war in Afghanistan.

I'm Candy Crowley.

JOHN KING, CNN ANCHOR: And I'm John King in Washington. \

And, Candy, this is an interesting day in the sense that, number one, will we get candor from Elena Kagan, a Supreme Court nomine? And how much candor will we get from General Petraeus?

Two hearings that will say a lot about two issues. One Supreme Court nominations, two, the war in Afghanistan. It will have a long role in the Obama legacy. We're in the early days of this administration. But this is his second Supreme Court nominee and there are a host of big cases coming up through the pipeline.

He is now invested in General Petraeus, a man he was very doubtful of, even scornful of, back as a senator when the Iraq surge was under way. Now he has invested the war in Afghanistan in this one general who is probably the best recognized military commander in the United States at the moment saying we have a problem.

And the questions there will not be about General Petraeus. He is widely regarded. It will be about a strategy. Even many supporters of the war of Afghanistan think it's off the track.

CROWLEY: What's interesting to me is it's not just the president who has put his faith in General Petraeus.

KING: No.

CROWLEY: It's almost the entire U.S. Senate. I was struck, Senator Dianne Feinstein, over the weekend, talk -- said basically we have put all our eggs in Petraeus basket. And by that she meant if he gets over there and he doesn't like the civilian leadership, and that is the U.S. ambassador to Afghanistan, if he doesn't like the special envoy in Afghanistan -- Holbrooke -- well then he ought to get new ones.

Whoa, we just spent a week saying the civilian has control over the military and she basically gave away the store to Petraeus. That's how much they are depending on that guy.

KING: And that's a great question. How much leverage does this general have over this president? He is taking a demotion to go over there. If things aren't going well, can he come to the president and say Mr. President, I know you told the country, and the liberals in your party who wants this war over, we'll start coming out in July, 2011 but I need a little bit more time? Or I can only send a small number of troops home. Not a significant number of troops. That will be a fascinating question.

First, though, the question this morning, let's bring in our group here. The questions this morning -- we're going to Elena Kagan. With us Jeffrey Toobin, Victoria Thompson, Gloria Borger, Donna Brazile and Ed Rollins.

Patrick Leahy, the chairman of the committee, has just begun the proceedings. Let's go up to Capitol Hill as we get to see question time.

ELENA KAGAN, SUPREME COURT NOMINEE: His legal work to ensure that either they could stay in their homes or at least if they did need to move to another neighborhood, they could take something with them to establish a good life there.

And he was also a person who spent an enormous amount of time thinking about that neighborhood. He was involved in lots of community boards and citizen groups of various kinds, thinking about environmental projects, and land use projects.

He really treated that neighborhood of New York City as just, you know, he -- just so much cared about the welfare of it and poured his heart and soul to try to improve it. And I think that what I learned from him was just the value of public service. Was just the value of doing what you can in your neighborhood or in your nation or wherever you can find that opportunity to help other people and to serve the nation.

So that's what I most took away from my father. My mother was -- I said yesterday she was a kind of legendary teacher. She died only a couple of years ago. And my brothers and I, we expected a small funeral. We expected not very many people to attend. A lot of -- I don't have a large family.

And instead just tons and tons of people showed up and we couldn't figure out who they all were. And it turned out that these people who were then middle-aged, you know, 30-year-olds, 40-year- olds, whatever, they had had my mother as a sixth grade teacher decades ago.

And they were people who just wanted to come and pay their respects because they kept on coming up to me and my brothers and saying, at the age of 12, your mother taught me that I could do anything.

And she was really demanding. She was a really tough teacher. You know, it was not -- you didn't slide by in Mrs. Kagan's class. But she -- she got the most out of people. And she changed people's lives because of that.

And if I look at my own career in this kind of strange way, not planned, but in this sort of strange way, I think, you know, part of my life is my father and part of my life is my mother.

That part of my life has been in public service. I've been really blessed with the opportunities I've had to work in governor and to serve this nation. And then part of my life is teaching, which I take enormous pleasure and joy from.

I mean, the -- I am looking over your right -- your left shoulder, right on my side, and there's a student of mine right there. And maybe there is some other students that are around the room. And it is -- it is a kind of great thing.

SEN. PATRICK LEAHY (D), JUDICIARY CHAIRMAN: We are doing our best to make Jeremy blush.

(LAUGHTER)

LEAHY: But you know, these -- these things that I -- and each one of us, I think, can speak about what our parents, what they brought us to. And seems to me they gave you some pretty strong values. So we -- that speaks about who you are as a person.

And now we go to some of your legal abilities and some of criticized your background or your legal argument, even gone to what did you write on college papers. The chairman of the Republican National Committee criticized you last month for agreeing with Justice Thurgood Marshall's observation that our Constitution as originally drafted was imperfect.

The criticism surprised me because everything you read about the founders, they knew that -- they would lay down something that would not cover every foreseeable thing. I mean how could they possibly foresee what the country is today. They were -- they wrote in broad terms. They couldn't foresee every challenge.

So what's the -- what's your response to this criticism of you that was made because you -- agreed with Justice Marshall? How -- how would you describe the way the Constitution has been amended since it was originally drafted?

KAGAN: Well, Justice Leahy, the framers were incredibly wise men. And if we always remembered that, we'll do pretty well because part of their wisdom was that they wrote a Constitution for the ages. And this was very much in their minds. This was part of their consciousness.

You know, even that phrase that I quoted yesterday from the "Preamble of the Constitution," I said the Constitution was to secure blessings of liberty. I didn't quote the next part of that phrase. It said, "Lessons of liberty for themselves and their posterity."

So they were looking towards the future. They were looking generations and generations and generations ahead and knowing that they were writing a constitution for all that parade of time.

And that life and that circumstances and that the world would change, just as it have changed in their own lives. Very dramatically. So they knew all about change. And they wrote the Constitution I think that has all kinds of provisions in it. So there is some -- there are very specific provisions. It just says what you're supposed to do and how things are supposed to work.

So it says, to be a senator, you have to 30 years old. And -- and that just meant you have to be 30 years old. And it doesn't matter if people mature earlier. It doesn't matter if people's life spans change. You just have to be 30 years old because that's what they wrote and that's what they meant, and that's what we should do.

But there are a range of other kinds of provisions in the Constitution. A much more general kind. And those provisions were meant to be interpreted over time, to be applied to new situations and new factual context.

So the Fourth Amendment is a great example of this. It says there shall be no unreasonable searches and seizures. Well, what's unreasonable? That's a question. The framers could have given like a whole primer on police practices, you know, which searches were reasonable and which searches weren't reasonable, and lots of different rules for saying that.

But they didn't do that. And I think that they didn't do that because of this incredible wisdom that they had that they knew that the world was going to change and that, you know, they didn't live with bomb-sniffing dogs and with heat detecting device.

LEAHY: And computers. And --

KAGAN: And computers, and all these questions that judges, courts, everybody is struggling with -- police -- in the Fourth Amendment context. And I think that they laid down -- sometimes they laid down very specific rules. Sometimes they laid down broad principles.

Either way we applied what they said. What they meant to do. So in that sense, we are all originalists.

LEAHY: And we also made changes and in the -- Bill of Rights, my own state of Vermont didn't join the union until it saw the Bill of Rights was going to be ratified. The 19th Amendment expansion of votes for women, the 26th Amendment, the -- allowing 18-year-olds to go.

We have seen some major changes over the years. Yesterday I talked about how the Supreme Court interprets Plessy versus Ferguson. It was overruled by Brown versus Board of Education. Same Constitution.

But we -- people realize how changes are in society. I can't imagine anybody saying we should go back to Plessy versus Ferguson because that was -- that was decided first. I think -- I do recall you being a special counsel with Senator Biden on this committee during a Supreme Court confirmation hearing.

I was here. I was a little bit further down the -- down the road at the time. But you wrote a law review article in the book review after in which you argued that these proceedings should be occasions to engage in a meaningful discussion of legal issues.

Now you set the standard.

(LAUGHTER)

LEAHY: You probably re-read those words.

KAGAN: Many times.

(LAUGHTER)

LEAHY: I'll bet. I'll bet. As have I and I guarantee you, as have --

KAGAN: And you know what --

LEAHY: Every single member of this committee.

KAGAN: They have been read to me many times, too.

(LAUGHTER)

LEAHY: And probably will again. How are you going to live up to that standard?

KAGAN: Senator Leahy, before I answer that question, may I say a little bit more about what you started with about constitutional changes? LEAHY: Sure.

KAGAN: Just to -- just to show my commitment to being open. All right?

LEAHY: Sure. Go ahead.

KAGAN: But you -- you said something which just sort of triggered a thought in me. And I just wanted to -- as you said, there are all these many changes that have happened to the Constitution.

And I think it's important to realize that those changes do come in sort of two varieties. One is the formal amendment process. And I think it was Senator Cornyn yesterday who had talked about the formal amendment process. And that's tremendously important.

So, you know, when Thurgood Marshall said that this was a defective constitution, you know, he was talking about the fact that this was a constitution and that counted slaves as three-fifths of a human being, that didn't do anything about that original sin of our country.

And the 14th Amendment changed that. The 14th amendment was an enormous break -- after the Civil War and created a different constitution for America. So partly the change has come in that way.

But partly they -- they come outside the formal amendment process as well. And what you said about Plessy and -- and Brown is absolutely right. That if you look at the specific intent of the drafters of the 14th Amendment, they thought the 14th Amendment was perfectly consistent with segregated schools.

I mean, you just have to -- you can't really argue otherwise as a historical matter. But in Brown, the court said otherwise. And you know, step by step by step, decision by decision, in large part because of what Justice Marshall did, you know, we got to a place where the court said it's inconsistent with the principle of equal protection of the laws that the drafters of the 14th Amendment laid down.

It's inconsistent with that principle to have segregated schools. So that's the way in which change can happen as well.

Now to go to your real question and I -- apologize for that digression. I have looked at that -- at that book review many times. And have been pointed to it. And here is what I think. I still think that the basic points of that book review were right.

And the basic points were that the Senate has a very significant role to play in picking Supreme Court justices; that it is important who serves on the Supreme Court; that everybody should treat it as important; and that the Senate should have a Constitutional responsibility and should take that Constitutional responsibility seriously.

And also that it should have the information it needs to take that seriously. And part of that is get some sense, some feel, of how a nominee approaches legal issues; the way they think about the law. And I guess that is my excuse for giving you a little bit more even what you wanted about Constitutional change.

But I would say that there are limits on that. Now, some of the limits I talked about in that article itself. That article makes very clear that it would be inappropriate for a nominee to talk about how she will rule on pending cases, or on cases beyond that that might come before the Court in the future. So the article was very clear about that line.

Now, when I came before this committee in my (inaudible) hearing, Senator Hatch and I had some conversation, because Senator Hatch said to me - and I am sorry he is not here -- he said to me he thought that I had to balance a little bit off. He said in addition -- he basically said it is not just that people can ask you about cases coming to come before the Court, they can ask you a range of questions that are a little bit more veiled than that. But they are really getting at the same thing. If it is not right to say how you would rule on a case that is going to come before the Court, or that might, then it is also not right to ask those kinds of questions which essentially ask you the same thing without doing so in so many words.

I went back and forth a little bit with Senator Hatch, both in these hearings and on paper, and I basically said to Senator Hatch that he was right; that I thought that I did have the balance a little bit off. And that I skewed it too much toward saying that answering is appropriate even when it would provide some kind of hints.

I think that that was wrong. I think that in particular, that it would not be appropriate for me to talk about what I think about past cases, to grade cases, because those cases themselves might again come before the Court.

SEN. PATRICK LEAHY (D-VT), CHAIRMAN, JUDICIARY COMMITTEE: Actually, that would go into another area. You have been Solicitor General. You have argued a number of cases before the Supreme Court. The last person nominated directly to the Supreme Court, not from judgeship, but from the administration, was when Justice Rehnquist was working for the Nixon administration and went directly to the Supreme Court.

And then, I was not in the Senate at that time, but I was there when he was being nominated for Chief Justice. And I asked him about his recusal to refuse himself from a case called Laird versus Tatum. The Laird case involved the Nixon administration's surveillance of Americans.

As the Justice Department's legal expert, when he was working with the Justice Department for the Nixon administration, he testified before Congress about that case. But then after his confirmation, he was probably five justice majority in the very case in which he had testified, and he voted to dismiss the complaint; alleging unlawful surveillance of lawful citizens' political activity.

Now, I realize Supreme Court justices have to make up their own mind. I --- back and forth with Justice Scalia about his relationship with the former Vice President and ruling on cases involving him. I regularly ask questions of nominees, not just for the Supreme Court, but for other courts about potential recusals.

Now, Senator Sessions and I sent you a questionnaire; and in that, we have the question recusal and you answered, it appears to me you take this very seriously. Tell me about what principles are you going to use to make recusal decisions; if you can do this briefly. But then tell us some of the cases where you anticipate you are going to have to recuse.

KAGAN: Senator Leahy, I think certainly, as I said in that questionnaire answer, that I would recuse myself from any case in which I have been counsel of record at any stage of the proceedings; in which I have signed any kind of brief.

And I think that there are probably about ten cases. I have not counted them up particularly, but I think that there are probably about ten cases that are on the docket next year in which that is true; in which I have been counsel of record on a petition for certiorari or some other kind of pleading. So that is a flat rule.

In addition to that, I said to you on the questionnaire that I would recuse myself in any case in which I had played any kind of substantial role in the process. I think that that would include - I am going to be a little bit hesitant about this, because one of things I would want to do is talk to my colleagues up there and make sure that this is what they think is appropriate, too. But, I think that that would include any case in which I have officially formally approved something. So, one of the things of that the Solicitor General does is approve appeals, or approve amicus briefs to be filed in lower courts, or improve interventions.

LEAHY: The -- I was really shocked by former Chief Justice Rehnquist's position on our Laird case. I thought that was almost an open and shut question for recusal. The reason I mention it -- the Supreme Court also has to have the respect of the American people. And certainly people can expect the Supreme Court to rule on some cases where they may or may not agree with them. But, so long as you have respect for the court, then they will understand that. If they see justices involved in cases which they have a financial interest, which seems pretty clear cut, or other direct interests, and then they rule on them, you can imagine this erodes the credibility of the court.

CROWLEY: Senator Patrick Leahy with Elena Kagan, currently discussing what cases she might recuse herself from; what cases she might have some interest in; and therefore, not want to rule on in the Court. Let me just bring in some of our panel here.

I think if I can sort of summarize what just went on, it was that Elena Kagan says she is happy to answer any question unless it is about past Supreme Court cases, current Supreme Court cases, or anything which might become a Supreme Court case; which I would like to know what that leaves from either of our lawyers on the panel.

UNIDENTIFIED MALE: A nice short hearing.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: She is going to talk about some philosophical issues, and she did begin talking about one. It is the biggest, probably, philosophical controversy of the Supreme Court, which is originalism; very much associated with Anthony Scalia and Clarence Thomas. And it is the view that the Constitution should be interpreted as the authors of the Constitution thought it should be interpreted; that is the opposite of a living Constitution.

And she offered a nod to originalism, and said in a way we are all originalists because we honor the framers of the Constitution. But she also said there are times when originalism does not work, and she gave the classic example of school segregation.

It is clear that the authors of the 14th Amendment thought school segregation was just fine. But in 1954 Brown v. Board of Education in the Court, threw out school desegregation, in the decision that was unanimous and is still pretty unanimously supported. So again, she was trying to walk the line on originalism, saying, agreeing somewhat but not completely.

VICTORIA TOENSING, FORMER JUSTICE DEPARTMENT ATTORNEY: We are all originalists, and Senator Hatch is right. I mean, no one can say she is not a politician, right? Saying that Senator Hatch was right about his interpretation of her article in 1995 -- I thought it was very clever she set out that she did not want to talk about past cases, because a very interesting past case is the settlement legislation that said if you -- if we are giving federal money to universities, then you cannot ban the military from recruiting. And this is a big thing at the heart of whether she is pro or con military, which is not really the issue.

But she joined amicus briefs before the Supreme Court, taking the opposite stand that the Supreme Court ultimately did, which was a 9-0, slam dunk against her position. Seems to me that a very typical question for her should be, and how would you have ruled on the Solomon case?

UNIDENTIFIED FEMALE: And her answer is going to be, I cannot tell you.

TOOBIN: I am actually not sure about that. She is going to have to give a better answer than that. It is not going to just be, I cannot talk about the Solomon. She is so associated with that case that she is going to have to do better than that.

UNIDENTIFIED FEMALE: Sure.

KING: We went through this in the (inaudible) hearings. You see from the Democrats an effort; OK, we know the Republicans are going to press you on these issues. So, let's try to lay the groundwork first. Leahy saying, Michael Steele, the Republican National Committee Chairman criticized you on this one. So let me give you a chance. It is a little game of chess here, Gloria. GLORIA BORGER, CNN SENIOR POLITICAL ANALYST: Sure, and the one thing that she did write, that she is going to be held to account for, is the notion that these hearings are what she called a vapid and hollow charade. And she knew she was going to have to address it. Pat Leahy in a friendly way asked her to address this book review.

Of course, she seems to have had a bit of a conversion here in which she said you had have to have some feel of how a nominee approaches legal issues, but there are limits on that. And so, clearly she has had a confirmation conversion on that one.

KING: We are going to bring Donna Brazil and Ed Rollins into the conversation in just a minute. First though, we are going to work in a quick break; because coming up at the bottom of the hour, not only continuing questions for Elena Kagan, but General David Petraeus will be before the Senate Armed Services Committee. You see the General there arriving on Capitol Hill. He is taking a demotion; stepping down as the Commander of the U.S. Central Command to take on the very dicey mission in Afghanistan; questions from senators just ahead. Stay with us

(COMMERCIAL BREAK)

KING: Am image there of the United States Supreme Court; on this day, the President's nominee to take a vacant seat on that Court. Elena Kagan hopes to satisfy the Senate Judiciary Committee. She is taking questions across the street in the Supreme Court Building in the United States Capitol.

And on the right of your screen; another committee hearing. The Kagan hearings on the left that is Chairman Patrick Leahy. On the right; the Senate Armed Services Committee, where in just a few moments, General David Petraeus will answer questions. He is stepping down as U.S. Central Commander to go to Afghanistan, a task he has accepted at the bid of the President. The big question is about the policy, not about the commander in Afghanistan.

We are going to ask you to juggle with us today as we track these two very consequential hearings; Elena Kagan's nomination to the Supreme Court, questions about Afghanistan, as the new commander, General David Petraeus, prepares to head over.

Welcome back to our continuing coverage. I am John King in Washington, along with Candy Crowley. We continue our conversation here with our fabulous group assembled.

Ed Rollins, so far she is being careful. And I would say that -- I will make a judgment. She is failing the Kagan test, if you will, which is to say, let's open these up, let's have fun.

ED ROLLINS, CNN CONTRIBUTOR: I'm not seeing any bobbing and weaving like this since Muhammad Ali in his prime. You know, I think the key thing here is both the opening statement yesterday and today. I come out of a business where you sell it as second chance to make a first impression. First impression to the country is that this is a nice, smart woman, but obviously, someone who's not answering the questions or not someone who is sort of (ph) overpowering. This is what to expect your Supreme Court justices to be big, strong personalities. I've not seen any of that.

KING: Let me challenge that a bit. Not answering the question. She is answering the questions. She is just not being fully candid and her take is that you can't be. That you can't talk about past cases or current case.

ROLLINS: I think she's setting a new standard for not answering questions.

KING: Do you agree with that, Donna?

DONNA BRAZILE, DEMOCRATIC STRATEGIST: No. This is the day that she will have an opportunity to respond to the questions that were raised yesterday. If the panelists, members of the judiciary committee are on the case today, they will pose these questions directly to her. They set them out and they open in framework. But look, one thing that troubled me yesterday is that Thurgood Marshall's name was mentioned 35 times. President Obama, 14 times.

Clearly some of the Republicans thought by raising his name since she said that he was one of her heroes, that they could somehow paint her or guilt by association because of her work with Thurgood Marshall as his clerk. I think she is going to have to answer clearly today a role that he has played in her life. He was an inspiration to her and he was an inspiration to many of us, but I clearly would hope that she can answer some of those questions because some of them were quite offensive.

KING: She's kind of pained herself, Candy, into this box and academia, probably maybe when she dreamed of being on the court but maybe didn't think she would be on the court. She said these hearings are awful. They have to be more candid.

CROWLEY: Talking about everything, right. It's a situational decision here as when you get in there. And I mean, I think, in fact, you don't want a Supreme Court justice who tells you what they think about a certain issue, be it abortion or guns because you know they're going to come up. Can we just talk a second about the 50 thousand- foot view? I don't think anybody believes that this -- Elena Kagan is not going to be the next Supreme Court justice. So, what are the hearings about?

BORGER: They are about Republicans sort of -- we have a midterm election coming up in November. And Republicans will use this as an opportunity to talk about Barack Obama's agenda, the big government democratic agenda, the so-called activist court, Democratic agenda, to take on the standard of empathy we were talking about yesterday. And use this as a way to -- as wedges to talk about to help them in the midterm elections. Nothing gets out your base in the Republican Party like these kinds of issues and talk about activist judge.

KING: And to that point, let me cut off our discussion for a minute because the key Republican of the committee, ranking republican, Jeff Sessions, has just begun his questioning of Elena Kagan. Let's listen.

(BEGIN VIDEOTAPE)

SEN. JEFF SESSIONS, (R) JUDICIARY CMTE., RANKING MEMBER: We can have brilliant and wonderful people, but if their approach to judging is such that I think allows them not to be faithful to the law, to not take the -- be able to honor that oath which is to serve under the constitution and laws of the United States, then we got a problem. And I don't think that's judging. I think that becomes politics, law or something else. So, I would say that to you and -- I look forward to all of our members asking a number of questions to probe how you will approach your judgeship. Let me ask you this.

UNIDENTIFIED MALE: Thank you for those kind words.

SESSIONS: Thank you, Mr. Chairman, and I meant that. One thing I -- before I get started, I would like to ask about your discussion of constitutional change earlier. You indicated that there is an amendment process in the constitution and two ways to do so in the constitution. Is there any other way than those two ways that the constitution approved to change the constitution?

KAGAN: Senator Sessions, the constitution is an enduring document. The constitution is the constitution. And the constitution does not change except by the amendment process, but as I suggested to the Chairman Leahy, the constitution does over time -- where asked -- courts are asked to think about how it applies to new sets of circumstances, to new problems, the things that the framers never dreamed of. And in applying the constitution, case by case by case to new circumstances, to changes in the world, the constitutional law that we live under does develop over time.

SESSIONS: Developing is one thing. And many of the provisions, as you noted, they're not specific. But they are pretty clear, I think but not always specific. Bu you're not in power to offer that document and change its meaning. You are empowered to apply its meaning faithfully in new circumstances, wouldn't you agree?

KAGAN: I do agree with that, Senator Sessions. That's the point I was trying to make, that, however, (INAUDIBLE) that you take the fourth amendment and you say there's -- unreasonable searches and seizures and that provision stays the same unless it's amended. That's the provision. And then the question is what counts as an unreasonable search and seizure and new cases come before the court and the court tries to think about to the extent of one can glean any meaning from the text itself, from the original intent, from the precedents, from the history, from the principles embedded in the precedent, and the court sort of step-by step-by-step one case at a time figures out what the fourth -- how the fourth amendment applies.

SESSIONS: I do believe that there's some out there who think the court really has an opportunity to update the constitution and make it say what they would like to it say. I know we've seen a bit of a revival in the idea of the progressive legal movement. That people in the early 20th century advocated views for changing America. They felt the constitution often blocked them from doing that, and they were very aggressive in seeking ways to subvert or get around that constitution.

Your former colleague at University of Chicago, Richard Epstein, said any constitutional document that stood in the way of the comprehensive socio-economic reforms, he is referring to the progressives, had to be -

(END VIDEOTAPE)

KING: You're watching Jeff Sessions, the ranking Republican in the Senate Judiciary begin his questioning of Elena Kagan. We're going to take you though briefly across the capitol. The Senate Armed Services Committee, Chairman Carl Levin right there, paying tribute to the late Senator Robert Byrd who passed away yesterday. This hearing getting under way. The main event, the questioning of General David Petraeus who is about to become the U.S. and NATO commander in Afghanistan. Again, this is Carl Levin of Michigan, the chairman.

(BEGIN VIDEOTAPE)

CARL LEVIN, SENATE ARMED SERVICES COMMITTEE, CHAIRMAN: And to defend. He was an eloquent spokesman for the vital role that Congress plays in national security in foreign affairs and our constitutional system. He was a treasured colleague and a friend to the members of the Armed Services Committee, to the entire Senate, and to the people of this nation. His life's work and his legacy will help guide us and will guide future Senates. This morning, the committee considers the nomination of General David H. Petraeus to be commander of the NATO International Security Assistance Force, ISAF, and commander United States Forces Afghanistan.

General, you testified before this committee on Afghanistan just two weeks ago and certainly no one foresaw the events that bring you to testify here again today. When confirmed you will bring highly experienced leadership and a profound understanding of president's strategy in Afghanistan which you helped shape as commander in U.S. central command. I want to thank you for your willingness at the president's request to leave that position and to take charge of the campaign in Afghanistan.

We appreciate your sacrifice and that of your family. Your wife, Holly, is with you this morning. And so, we all want to thank her personally for her commitment and her sacrifices along the way. I must tell you, general, that her understanding of your doing your patriotic duty as you are now doing again taking over the command in Afghanistan. Her understanding and support of that is truly inspiring. We thank her. We profoundly thank you, Mr. Petraeus.

I also want to express my gratitude to General McChrystal for his great service to our nation over three decades. Faith takes strange bounces at times and working through them with dignity and honor as has General McChrystal is a hallmark of leadership and of character. The challenges in Afghanistan are in many ways as complex or more complex than those that General Petraeus inherited when he assumed command in Iraq. Recent news reports indicate that progress in Afghanistan is spotty. Casualties among U.S. ISAF and Afghan security forces are higher, while some normal activities have returned to Helmand.

Insurgent intimidation and violence continues to threaten governance and development in the south. The Karzai government has yet to deliver services to win allegiances locally. And recent reports suggest that Afghanistan's Taishikan (ph) Uzbek minorities are concerned about President Karzai's overtures to Taliban leaders through Pakistani intermediaries. At our hearing two weeks ago, General Petraeus emphasized that, quote, "a counterinsurgency operation is a roller coaster experience." But he said that in his view, the trajectory, quote, has generally been upward despite the tough losses."

I have long believed that the number one mission in Afghanistan is building the capacity of the Afghan security forces to be able to take increasing responsibility for their country's security. General Petraeus said two weeks ago that increasing the size in capacity of the Afghan security forces is, quote, "central to achieving progress in Afghanistan." U.S. and ISAF forces need to focus their resources and energy on this effort. There is a significant shortfall still of trainers to provide basic instruction to Afghan recruits and of mentors to imbed with Afghan units in the field.

Building the capacity of the Afghan security forces to provide security is not simply what we seek. It's what the Afghan people seek. That's what we were told by 100 or so elders at Ashura (ph) and Southern Afghanistan last year. And when we asked them what they wanted the United States to do, they told us that we should train and equip the Afghan army to provide for their country's security and then we should depart.

The 1600 delegates to the Afghanistan consulted a peace jirga at the beginning of this month adopted a resolution calling on the international community to, quote, "expedite the training and equipping of the Afghan security forces so they can gain the capacity to provide security for their own country and people." I remain deeply concerned, however, by reports that there are relatively few Afghan army troops in the league in operations in the south where fighting is heaviest. The Afghan army numbers around 120,000 troops, including over 70,000 combat troops. In the past, ISAF reported that over half of Afghan battalions were capable of conducting operations, either independently or with coalition support.

However, a recent report released just today by the special inspector general for Afghanistan reconstruction finds that the capability rating system used by the training mission, quote, "overstated operational capabilities of the afghan security forces and has not provided reliable or consistent assessments." ISAF agreed with that report and recently has adopted new standard for measuring Afghan capability by which measure around one-third of Afghan units are now determined to be effective with coalition support in conducting operations.

However, even under that new measure, there are significantly more Afghan army troops that could lead operations in Kandahar than the 7,250 Afghan troops now in Kandahar. A level of Afghan security forces in Kandahar, both army and police, is scheduled to rise to only 8,500 personnel by the fall, according to a chart provided by General McChrystal last month. The influx of ISAF forces in and around Kandahar will outpace the increase in Afghan forces by October according to that same chart. The current slower pace of operations in Kandahar provides the opportunity to get more Afghan combat capable forces south to take the lead in operations there.

(END VIDEOTAPE)

CROWLEY: That's Carl Levin. He is chairman of the Senate Armed Services Committee outlining the considerable problems we are having now in Afghanistan, the U.S./Afghan forces, and of course, NATO forces there. He was talking about just a blistering report that came out within the past couple of weeks from the special inspector general of Afghanistan reconstruction which said, basically, Afghan forces are nowhere near ready to take over for U.S. forces. A very important subject for General Petraeus, who has been nominated to, of course, command the U.S. and allied troops in Afghanistan.

We want to take a quick break because John McCain, a Republican, is next up. You'll hear from him.

(COMMERCIAL BREAK)

KING: We're tracking two big hearings on Capitol Hill today: the Elena Kagan confirmation hearings to the Supreme Court; but right now, let's get straight back to the hearing on the left of your screen.

General David Petraeus, nominated to be the new commander of the U.S. forces in Afghanistan. Senator John McCain the ranking Republican on the committee giving his opening statement.

SEN. JOHN MCCAIN (R), ARIZONA: I believe you're one of our finest ever military leaders. I hope that does not provoke the same reaction as it did then. But seriously we're all grateful for your willingness to answer the call of service again in yet another critical mission. You're an American hero and I am confident that you will be quickly and overwhelmingly confirmed.

Before I go further, let me say a word of praise for another American hero, General Stanley McChrystal. He's a man of unrivalled integrity and what is most impressive about his long record of military excellence is how much of it remains cloaked in silence.

You understand fully how General McChrystal systematically dismantled al Qaeda in Iraq and how he began to turn around our failing war in Afghanistan. These achievements and others like them are the true measure of Stanley McChrystal and they will earn him an honored place in our history.

The events that led to this hearing are unexpected and unfortunate but they don't mean we are failing in Afghanistan. I agree with the President that success in Afghanistan is a quote "a vital national interest". And I support his decision to adopt a counterinsurgency strategy backed by more troops and civilian resources. This is the only viable path to true success, which I would define as an Afghanistan that is increasingly capable of governing itself, securing its people, sustaining its own development and never again serving as a base for attacks against America and our allies. In short, the same results we are slowly seeing emerge today in Iraq.

Before heading out to Iraq three years ago, General Petraeus, you told this committee, that the mission was quote, "hard but not hopeless". I would characterize our mission in Afghanistan the same way. Nevertheless, many of the same people who were defeatist about Iraq are now saying similar things about Afghanistan.

But Afghanistan is not a lost cause. Afghans do not want the Taliban back. They are good fighters, and they want a government that works for them and works well. And for those who think the Karzai government is not an adequate partner, I would remind them that in 2007 the Maliki government in Iraq was not only corrupt, it was collapsed and complicit in sectarian violence.

A weak and compromised local partner is to be expected in counterinsurgency. That's why there's an insurgency. The challenge is to support and push our partners to perform better. That's what we're doing in Iraq and that's what we can do in Afghanistan if -- if we make it clear that as long as success is possible, we will stay in Afghanistan to achieve it as we did with Iraq. Not that we will start to withdraw no matter what in July of 2011.

I appreciate the President's statement last week that July 2011 is simply a date to quote "begin a transition phase to greater Afghan responsibility", and for those who doubt the President's desire and commitment to succeed in Afghanistan, his nomination of General Petraeus to run this war should cause them to think twice.

Still, what we need to hear from the President, what our friends and enemies in Afghanistan and the region need to hear is that the withdrawal of U.S. forces from Afghanistan will be determined solely by conditions on the ground.

Let me explain why I believe the July 2011 date is so harmful. What we're trying to do in Afghanistan as in any counterinsurgency is to win the loyalty of the population. To convince people who may dislike the insurgency but who may also distrust their government that they should line up with us against the Taliban and al Qaeda.

We're asking them to take a huge risk and they will be far less willing to run it if they think we will begin leaving in a year. One U.S. Marine put it this way about the Afghans she encounters. Quote, "That's why they won't work with us", she said, quote, "They say you'll leave in 2011 and the Taliban will chop their heads off."

The same goes for the Afghan government. We're told that setting a date to begin withdrawing would be an incentive for the Karzai administration to make better decisions and to make them more quickly. I would argue it's having the opposite effect. It's causing Afghan leaders to hedge their bets on us. This is not only making the war harder it's making the war longer. If the President would say that success in Afghanistan is our only withdrawal plan, whether we reach it before July 2011 or afterwards, he would make the war more winnable and hasten the day when our troops can come home with honor which is what we all want.

In addition to being harmful, the July 2011 withdrawal date increasingly looks unrealistic. That date was based on assumptions made back in December about how much progress we could achieve in Afghanistan and how quickly we could achieve it, but war never works out the way we assume as today's hearing reminds us all too well.

Secretary Gates said last week, quote "I believe we are making some progress but it is slower and harder than we anticipated." I agree. Marjah is largely cleared of the Taliban but the holding and building is not going as well as planned.

Our operation in Kandahar is getting off to a slower and more difficult start than expected. The Dutch and Canadian governments plan to withdraw soon, and it looks increasingly unlikely that NATO will make its pledge of 10,000 troops.

CROWLEY: This is Republican Senator John McCain making the point that Republicans have made for some time now, and that is, when the President set a deadline for the beginning of withdrawal of U.S. troops from Afghanistan, that deadline being July of next year, he immediately encouraged those who just want to wait out the U.S.

They certainly want to talk to General Petraeus about that.

But right now, we want to take you back to the Supreme Court hearings because Republican Jeff Sessions, on the Judicial Committee is talking to Elena Kagan about military recruitment on the Harvard campus.

The context of this is that Kagan was once the Dean of the Harvard Law School and at that time there was back and forth about whether military recruiters would be allowed on campus. That's what this is about.

SEN. JEFF SESSIONS (R), JUDICIARY COMMITTEE, RANKING MEMBER: They say that President Summers agreed to reverse the policy. The dean remains opposed.

ELENA KAGAN, SUPREME COURT NOMINEE: Senator Sessions, Larry Summers and I always worked cooperatively on this policy. I didn't ever do anything that he didn't know about and he never did anything that I didn't approve of.

With respect to the decision that -- that you're talking about, this was a joint decision that Larry and I made that because DOD thought that what we were doing was inappropriate, we should, in fact, reverse what we had done.

That period lasted for a period of a few months in my six-year deanship and -- and long before the Supreme Court issued its ruling in the Fair versus Rumsfeld case, we were doing exactly what DOD asked us to do.

SESSIONS: So it's your testimony that the decision you made immediately after the third circuit opinion, you concluded was inappropriate, you and President Summers and you reversed that policy later?

KAGAN: Senator Sessions, what I did after the third circuit decision was to say, look, the only appellate court to have considered this question has struck down the statute. We always thought that our policy was in compliance with the statute.

The appropriate thing for me to do, really, the obligation I owed to my school and its longstanding policy was to go back to our old accommodation policy which allowed the military full access but through the veterans' organization. When DOD came to us and said that it thought that that was insufficient, that it wanted to essentially ignore the third circuit decision because it was taking it up to the Supreme Court. When they came back to us, we went through a discussion of a couple of months and made a decision to do exactly what DOD wanted.

SESSIONS: Well, you did what DOD wanted when they told the president and the council for the university they were going to lose some $300 million if Dean Kagan's policy was not reversed. Isn't that a fact?

KAGAN: Senator Sessions, we did what DOD asked for because we have always tried to be in compliance with the Solomon amendment, thought that we were. When DOD -- DOD had long held that we were. When DOD came back to us and said, no, notwithstanding the third circuit decision, we maintain our insistence that you are out of compliance with the Solomon amendment, we said, ok.

SESSIONS: In fact, you were punishing the military. The protest that you had, that you spoke to on campus was at the very time in the next building or one or two buildings nearby. The military were meeting there. Some of the military veterans when they met with you the first time expressed concern about an increasingly hostile atmosphere on the campus against the military. Didn't they express that to you?

KAGAN: Senator Sessions, I think as I said to Senator Leahy that I tried in every way I could throughout this process to make clear to all our students, not just to the veterans, but to all of our students, how much I valued their service and what an incredible contribution I thought they made to the school.

SESSIONS: I don't deny that you value the military, I really don't, but I do believe that the actions you took helped create a climate that was not healthy toward the military on campus.

But let me ask you this. You keep referring in your e-mails and all to the military policy. Isn't it a fact that the policy was not the military policy but a law passed by the Congress of the United States? Those soldiers may have come back from Iraq or Afghanistan. They were appearing to recruit on your campus were simply following the policy of the United States Congress effectuated by law, not their idea, and that you were taking steps to treat them in a second class way, not give them the same equal access because you deeply opposed that policy? Why wouldn't you complain to Congress and not to the dutiful men and women who put their lives on the line for America every day?