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Continuing Coverage: Kagan Confirmation Hearings; Petraeus Makes Opening Statements

Aired June 29, 2010 - 10:00   ET



ELENA KAGAN, SUPREME COURT JUSTICE NOMINEE: Senator Sessions, you are, of course, right, that the Solomon Amendment is law passed by Congress. And we never suggested that any members of the military, you know, should be criticized in any way for this. Quite to the contrary. I tried to make clear in everything I did how much I honored everybody who was associated with the military on the Harvard Law School campus.

All that I was trying to do was to ensure that Harvard Law School could also comply with its anti-discrimination policy, a policy that was meant to protect all of the students of our campus, including the gay and lesbian students who might very much want to serve in the military, who might very much want to do that most honorable kind of service that a person can do for her country.

SESSIONS: Well, I would think that that's a legitimate concern, and people can disagree about that, and I respect your view on that. What I'm having difficulty with is why you would take the steps of treating the military in a second class way, to speak to rallies, to send out e-mails, to immediately, without legal basis, because the Solomon Amendment was never at any time, not enforced as a matter of law, why you would do all of those things simply to deny what Congress required, that they have equal access as anyone else.

KAGAN: Senator, the military at all times during my deanship had full and good access. Military recruiting did not go down. Indeed, in a couple of years, including the years that you are in particular referring to, it went up and it went up because we ensured that the students would know that the military recruiters were coming to our campus because I talked about how important military service was. Because our veterans organization and the veterans on campus did an absolutely terrific job, a terrific service to their fellow students in talking to them about the honor of military service.

SESSIONS: Well, I would just say that while my time is running down, I'm just a little taken aback by the tone of your remarks because it's unconnected to reality. I know what happened at Harvard. I know you were an outspoken leader against the military policy. I know you acted without legal authority to reverse Harvard's policy and deny those military equal access to campus until you were threatened by the United States government of loss of federal funds. This is what happened.

SEN. PATRICK LEAHY (D), VERMONT: The senator's time expired but you can't respond to that if you want.

SESSIONS: It did not hand in that way, and I think if you had any complaint, they should have been made to the United States Congress, not to those men and women who we send in harm's way to serve our nation.

LEAHY: Especially because of the number of people, including the dean of West Point who has praised you and said you are absolutely not anti-military, I will let you take time to respond to what Senator Sessions has just said.

KAGAN: Well, thank you, Senator Leahy. I respect and I do revere the military. My father was a veteran. One of the great privileges of my time at Harvard Law School was dealing with all these wonderful students that we had who served in the military and students who wanted to go to the military, and I always tried to make sure that I conveyed my honor for the military and I always tried to make sure that the military had excellent access to our students, and in the short period of time, Senator Sessions, that the military had that access through the veterans organization, military recruiting actually went up, but I also felt a need to defend our school's very longstanding anti-discrimination policy and to protect the men and women, the students, who were meant to be protected by that policy, the gay and lesbian students who wanted to serve in the military and do that most honorable kind of service, and those are the two things that I tried to do, and I think, again, the military always had good access at Harvard Law School.


JOHN KING, CNN CHIEF NATIONAL CORRESPONDENT: The first sign of significant controversy emerging at the confirmation hearings of Elena Kagan. Leading Republican on the committee, Jeff Sessions, boring in on a controversy over a policy when she was dean at the Harvard Law School.

The military for a short period of time not allowed to recruit directly on campus, forced to work through a veterans organization instead that because the campus had an anti-discrimination policy and the military, of course, had the don't ask, don't tell policy about homosexuals not serving opening.

Let's bring Jeff Toobin and Victoria Toensing into the conversation here. Jeff Sessions simply Jeff doesn't buy her answer when she says she did everything she could. She "respects and reveres the military," it's clear he doesn't buy it.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: It's true, and I suppose it's to Kagan's advantage that this is a complex story that changed over time. That there was a lawsuit filed. The people challenging the don't ask, don't tell law, the Solomon Amendment, which took away funds from schools that wouldn't let the military recruit, her side won in the Third Circuit Court of Appeals based in Philadelphia.

Later, that decision was overturned by the United States Supreme Court, and the Harvard policy followed in some respects the course of that litigation. So it changed. In any event, it's kind of complicated, and it's hard for me to imagine that many people would be exercised about that.

VICTORIA TOENSING, FORMER JUSTICE DEPARTMENT ATTORNEY: It's a simple legal point though that Jeff Sessions was trying to make and that is that ruling was in the Third Circuit and Harvard, by the way, is not in the Third Circuit. So that ruling didn't affect you at all. You shouldn't have changed your policy and that's what he's zeroing in.

TOOBIN: I think that's a fair point, whether following circuit policy or national policy is a big issue to voters, I doubt but that's -


TOENSING: Because if the circuit rules on something, it's really only, technically, affects that geographic area.

TOOBIN: Massachusetts is in a different circuit.

TOENSING: And Massachusetts wasn't in there and she went, yes, victory.

KING: And so let me try this one, Gloria. If it is complicated in the law.


KING: That means in politics, you can be Jeff Sessions and say, look, you made decisions that I can call anti-military.

BORGER: Right.

KING: If you are Elena Kagan, you can say "no, I tried to do the best I could in an difficult environment and I always tried to find a way for the military to have access," perhaps not in the way that you would like.

BORGER: Right. You mean to tell me that the politics tries to reduce complicated issues to simple issues? Yes. The answer to that is yes. You know, he was very strong saying "I'm taken aback by the tone of your remarks" and he called them "unconnected to reality." His point is, basically, she's anti-military. Her point was military recruitment actually went up when the recruiters were not allowed on campus.

KING: And as we continue to track both the legal debate on a military issue, let's go across the capital to the Senate Armed Services Committee, another critical confirmation hearing. General David Petraeus giving his opening statement.

GEN. DAVID PETRAEUS, CENTCOM COMMANDER: -- challenging. Indeed helping to train and equip host nation forces in the midst of an insurgency is akin to building an advanced aircraft while it is in flight, while it is being designed and while it is being shot at. There is nothing easy about it.

But our efforts in this important area have been overhauled in the past year, and those efforts are now broadly on track for the first time to achieve overall approved growth goals and to improve Afghan security force quality as well. Indeed, Afghan security force development has been advanced considerably by partnering efforts that were expanded under General McChrystal's command by the establishment of the NATO training mission Afghanistan and by the appointment of Lt. Gen. Bill Caldwell to command that organization.

Despite the progress in recent months in Afghan security force development, there is considerable work, nonetheless to be done to reduce attrition further and to develop effective leaders, especially with respect to the Afghan National Police.

Further progress will take even greater partnering, additional training improvements, fuller manning of the training and mentoring missions and expanded professional education opportunities and initiatives are being pursued in each of these areas.

Recent salary and benefits initiatives are helping to improve recruiting and retention of Afghan security forces. Training capacity has been increased significantly, and the density of trainers to trainees went from one trainer per 79 trainees to one trainer per 30 trainees, and the unprecedented intensity of our team work with the Afghan forces is also beginning to show results.

Today, Afghan military headquarters typically are collocated with ISAF Unit headquarters, sometimes even sharing the same operating centers, and nearly 85 percent of the Afghan National Army is now fully partnered with ISAF forces for operations in the field. In short, ISAF and Afghan forces train together, plan operations together and fight together.

Furthermore, I should note that Afghan forces are now in the lead in Kabul and in a number of other areas. In such cases, Afghan units are now the supported forces operating with significant assistance from ISAF to be sure but already shouldering the responsibilities of leadership.

An excellent example of this was the recovery operation for the Pamir Airways crash, north of Kabul last month. Afghan border police found the site, recovery plans were planned, coordinated and executed jointly by the Afghan Ministry of Defense and Ministry of Interior at the Afghan National Military Coordination Center.

The recovery operation at an elevation of more than 12,500 feet was executed by Afghan helicopter crews and Afghan commandos. Even the media and information issues were handled by Afghan personnel. That case is to be sure not the norm throughout Afghanistan. Nonetheless, the ISAF are very much in the fight and sacrificing for their country and nothing reflects this more than the fact that their losses are typically several times ours.

There is no question that levels of violence in Afghanistan have increased significantly over the last several years. Moreover the Taliban and its affiliates had until this year steadily have been expanding the areas they control and influence. This year, however, ISAF has achieved progress in several locations.

The initial main effort has been in the Central Helmand River Valley, an Afghan-U.S. and U.K. forces have expanded security there. Though predictably, the enemy has fought back as we have taken away his sanctuaries in the districts of (INAUDIBLE) and elsewhere. Nothing has been easy in those operations. But six months ago, we could not have walked through the market in Marjah, as I was able to do with the district governor there two months ago.

We are now increasing our focus on Kandahar province, an area of considerably importance to the Taliban. We're working hard to ensure that our operations there are based on a strong integrated civil military and Afghan international approach to security governance and development. So called shaping operations including a high tempo of targeted special forces operations have been ongoing for some months.

President Karzai and his ministers have also conducted (INAUDIBLE) councils and a number of other political initiatives focused on increasing the sense of inclusivity and transparency in the province, elements that the way ahead that are essential and have been stressed by President Karzai.

In the months ahead, we will see an additional U.S. brigade from the great 101st Airborne Division, deploy into the districts around Kandahar City where it will operate together with an additional Afghan Army brigade. We'll see the introduction of additional Afghan police and U.S. military police to secure the city itself. Along with other U.S. forces and civilians who will work together with the impressive Canadian-led provincial reconstruction team that has been operating in the city.

The combination of all these initiatives is intended to slowly but surely establish the foundation of security that can allow the development of viable, local political structures, enable the improvement of basic services and help Afghan leaders and local governments achieve legitimacy and greater support by the Kandaharis.

While relentless pursuit of the Taliban will be critical in Kandahar and elsewhere, we know from Iraq and other counter insurgency experiences that we cannot kill or capture our way out of an industrial strength insurgency like that in Afghanistan.

Clearly as many insurgents and citizens as possible need to be convinced to become part of the solution rather than a continuing part of the problem. The National Consultant of Peace (INAUDIBLE) conducted in Kabul several weeks ago was an important initiative in this arena, and the reintegration policy that President Karzai signed today and I talked to him about it on the way here this morning will be critical to the effort to convince reconcilable elements of the insurgency to lay down their weapons and support the new Afghanistan.

We look forward to working with our Afghan and diplomatic partners in implementing this newly-signed policy. Recent months in Afghanistan have, as you noted, Mr. Chairman, seen tough fighting and tough casualties. This was expected. Indeed, as I noted in testimony last year and again earlier this year, the going inevitably gets tougher before it gets easier when a counterinsurgency operation tries to reverse insurgent momentum.

My sense is that the tough fighting will continue. Indeed, it may get more intense in the next few months. As we take away the enemy's safe havens and reduce the enemy's freedom of action, the insurgents will fight back. In the face of the tough fighting, however, we must remember that progress is possible in Afghanistan because we have already seen a fair amount of it in a variety of different forms beyond the recent security gains.

For example, nearly seven million Afghan children are now in school as opposed to less than one million a decade ago under Taliban control. Immunization rates for children have gone up substantially and are now in the 70 to 90 percent range nationwide. Cell phones are ubiquitous in a country that had virtually none during the Taliban days, though the Taliban does try to shut down some of those towers at night and does it as well.

Kabul is a bustling, busy city as Herat, Mazar-I-Sharif and Jalalabad. Roads and bridges and other infrastructures have been repaired or built. Commerce is returning to those parts of Helmand where ISAF and Afghan forces are present. Even in places where governance remains weak, innovative efforts like the Afghan government's national solidarity program, supported by American and international civilians as well as by our troopers have helped enable local Shira (ph) councils to choose their own development priorities and receive modest cash grants to pursue them.

Enabling further such progress though and successfully implementing the president's policy will require that our forces and our work in Afghanistan is fully resourced. It is essential for the conduct of this mission, for example, that the supplemental funding measure now before Congress be passed.

This committee and the Senate have passed it, and it was heartening to hear Speaker Pelosi's call last week for the House to do the same expeditiously. Beyond that, as always, I also ask for your continued support for the commander's emergency response program. (INAUDIBLE) funded projects are often the most responsive and effective means to address a local community's needs.

Indeed, serf (ph) is often the only tool to address pressing requirements in areas where security is challenged. Our commanders value (INAUDIBLE) enormously and they appreciate your appropriating funds for it each year.

As I close, I'd like to once again want to note the extraordinary work being done by our troopers on the ground in Afghanistan, Iraq and elsewhere around the world. Our young men and women truly deserve the recognition they have earned as America's new greatest generation.

There is no question that they compromise the finest, most combat hardened military in our nation's history. There is also no question that they and their families have made enormous sacrifices since 9/11 in particular. Many of them have deployed on multiple tours to perform difficult missions under challenging circumstances against tough even barbaric enemies.

We cannot, in my view, ever thank our soldiers, sailors, airmen, marines and coast guardsmen enough that what Americans have done to support those in uniform and our deployed civilians has been truly wonderful. Indeed, nothing has meant more to our troopers and their families than the appreciation of those here at home.

As you noted, Mr. Chairman, my wife, Holly, is here with me today. She is a symbol of the strength and dedication of families around the globe who wait at home for their loved ones while they're engaged in critical work in Afghanistan, Iraq and elsewhere. She has hung tough while I have been deployed for over 5 1/2 years since 9/11. So have untold other spouses, children and loved ones as their troopers have deployed and continued to raise their right hands time and time again.

Clearly, our families are the unsung heroes of the long campaigns on which we have embarked over the past decade. One of America's greatest presidents, Teddy Roosevelt once observed that far and away the best prize that life has to offer is the chance to work hard at work worth doing. There are currently nearly 140,000 coalition troopers and over 235,000 Afghan security force members engaged in hard work very much worth doing in Afghanistan.

If I am confirmed by the Senate, it will be a great privilege to soldier with them in that hard work that is so worth doing in that country. Thank you very much.

CROWLEY: That is General David Petraeus. These are his confirmation hearings to become the commander of U.S. and NATO forces in Afghanistan. Very little question that that confirmation is going to happen but not without a thorough airing of what is going on in Afghanistan.

You heard General Petraeus there making the case that there have been huge successes but also making the case that things are only going to get tougher through the summer and on in as they make their way - the U.S. military, Afghan forces, huge defense from General Petraeus, but as they make their way into Kandahar, which is really a strong hold for the Taliban. So many people are saying as Kandahar goes, so goes Afghanistan.

So we are not just watching General Petraeus' confirmation hearings, we're watching the confirmation hearings of Elena Kagan to be the next justice on the Supreme Court.

We will be back after a quick break to talk about both.


KING: Two big hearings we're tracking today.

General Petraeus in facing his confirmation hearing to become the new U.S. and allied commander in Afghanistan, and Elena Kagan, on the left of your screen there, she is the president's nominee for the Supreme Court vacancy created by the retirement of Justice John Paul Stevens.

Welcome back to our continuing coverage. Today, the juggle, a very consequential day here in Washington. With us in the room, Candy Crowley joining me as we co-anchor our way through this bit of a jungle today.

Jeff Toobin, Victoria Toensing, Gloria Borger, Donna Brazile, and Ed Rollins. Let's focus on the Kagan hearings. So far, we have had some contention but we have also had lo and behold, something that seems quite obvious to all us but she has told the committee, yes, I'm a democrat which is a fact of life but she says it will not affect her judgment. That she will be neutral on the bench. No surprise but an important statement she needed to get out of the way, I guess.

ED ROLLINS, REPUBLICAN STRATEGIST: Yes. I don't think it hurts here anyway. I think at the end of the day, I would argue, and I'm not a Democrat, and I'm not going to give their strategy. But I would argue that she needs to be more forceful. She is going to get confirmed here and she ought to basically be a little bit more aggressive in who she is and what she is.

DONNA BRAZILE, CNN CONTRIBUTOR: I think her role today is to show that she will adhere to the law and she is not going to, you know, shake things up but to answer the Senate questions and then let this process wind its way down.

KING: Let me get to the legal minds in the room. For her to say in discussing the controversy about the military recruiters when they were banned or at least forced to go through different rules on the Harvard campus, she said quite clearly, "yes, I oppose the don't ask, don't tell policy. I find it morally - these are my words, not hers - morally offensive.

Any danger in that in stating here views. Clearly, she's on the record on this issue but is she prepared to perhaps be a Supreme Court justice, any dangers in that?

TOENSING: She could open it up through to the whole gay issue. I mean, there's an important case coming from California, that Proposition 8 will wind its way to the Supreme Court on gay marriage. Where there was a proposition and the people of California voted against it. So that's pretty, you know, collateral to the direct issue of what could come up, like housing on military bases.

TOOBIN: Well, her position is identical to that of the president of the United States and we now know, the chairman of the Joint Chiefs of Staff. So it's not exactly a wild out-there position. I think, frankly, it's good that she has something to talk about where she has taken a stand.

One of the main criticisms of her is that we don't know where she stands on much of anything. This is a subject in which the public is divided, but it's many people are on her side, and, you know, I think Jeff Sessions did a very good job of questioning her on it and people can make up their minds.

KING: Let's let our audience listen to some of that because we were listening to General David Petraeus involved in that hearing where some of this exchange took place. Let's have a listen.


SESSIONS: Do you agree with the characterization that you are legal progressive?

KAGAN: Senator Sessions, I honestly don't know what that label means. I've worked in two Democratic administrations, as Senator Graham suggested yesterday, and I think he's right, that you can tell something about me and my political views from that but as I suggested to you, my political views are one thing.


KING: Her political views are one thing, Candy Crowley, how she would judge is entirely different.


CROWLEY: It worked for Sandra Day O'Connor, (INAUDIBLE) so it certainly is something - listen, they don't go to the court as blank slates. They all grew up in, you know, households that had political opinions. Many of them, you know, we always look at what campaigns they gave to. It's not a big surprise that judges have political opinions. The question is, can you set that aside and move forward?

BORGER: In fact, it's not only conservatives that are worried about her. It's liberals that are worried about her because she hasn't been a judge, and they're worried about her on the issues of executive power. She doesn't have much of a record on the issue of abortion, for example.

And so, you know, you get that on both sides but one other thing Lindsay Graham said, yesterday, which was very telling is what did I expect from President Obama? I kind of what I expected, that elections have consequences, and Barack Obama's a Democrat, so, lo and behold, guess what? He appointed Elena Kagan.

KING: So, Donna, when you are in touch with all your Democratic friends, what questions do they have? Because to Gloria's point, I think when she's discussing who she is and how she thinks, I do think it's the Democrats who are leaning forward, more wanting to listen, because the Republicans know this is Obama appointee. And they're not going to like a lot about it. What are the Democrats worried about?

BRAZILE: Well, they - first of all, many of us know Elena Kagan and know about her values. We know that she is smart and that she will do a great job on the Supreme Court and upholding the constitution and the legal values that we all cherish but more to the point, John, people are concerned about her position on abortion and affirmative action, all of those hot button social issues, but, more importantly, you know, when Senator graham praised her for the position she's taken on executive orders and executive powers, many liberals say, no, that's not what we're interested in, but by and large, people believe that she is comfortably in the main stream of American judicial philosophy and that she's not going to tilt the court one way or the other but she will be a counterweight to some of those extremists from the right.

TOENSING: I find it amazing that some people say "well, we're going to put her on the court because she has such a good legal mind and will be a counter to Scalia and will be able to bring those conservatives over to her way of thinking. And that just isn't going to happen.

TOOBIN: I don't think anyone - no one suggested that.

TOENSING: No one saying that but I mean no one could be closer than Justice Scalia and Justice Ginsburg, but, never, should they meet on convincing the other of their point of view.

CROWLEY: Let me put a timeline here because we do want to go into the rooms, very often when we're watching these things, we get a different feel than what is actually happening inside the room.

That's why we have our senior congressional correspondent Dana Bash who has been there listening to all of that. It seemed to us here, Dana, that in fact, Sessions was pretty sharp, that there was some tension there at least on his side.

DANA BASH, CNN SENIOR CONGRESSIONAL CORRESPONDENT: A lot of tension. There's no question about it. And what he was really drilling down on, and I think some of you all talked about it, was the fact that he believes at the end of the day that what she did at Harvard was effectively ignore the law. That when the Third Circuit said that the law said they needed to deal with recruiting on campus, that she didn't do it, and that was I think the larger point that he was making in addition to the political point that she doesn't respect the military which you saw her, he tried to shoot down by talking about the fact that her father served in the military.

But I think -- the sound bite that you played a while ago, which I don't think we had on live because we were dealing with the other hearing, I think, was probably one of the most interesting things that she said with regard to answering the fundamental question, which is whether or not the fact that she is a Democrat and perhaps a liberal Democrat, whether that will hurt her or whether that will carry through on the Supreme Court, and she had that line ready. She had it prepared, and she said that it is nothing to do with her judicial philosophy. So, that was a fascinating exchange there.

And one other thing, and I don't think we aired, either, that Jeff Sessions read a quote from somebody who was a good friend of hers and somebody who knows this process very well. And his name is Ron Klain (ph). He's currently the chief of staff to Joe Biden, saying that believes she a judicial progressive, a judicial liberal. And so there was a back and forth about that with Jeff Sessions - again, in his very tough questioning trying to press her, are you a judicial liberal? She wouldn't go there, but it was one of those moments where she was trying to delicately dance between the fact that she did work for Democrats and is a Democrat, but she promises to be open minded and judicially fair when she gets to the bench.

CANDY CROWLEY, CNN SENIOR POLITICAL CORRESPONDENT: Dana, one of the things I think that we know or that I've heard over time from some Republicans is they believe -- some of them, that all things being considered, that if the nominee is qualified, the president ought to get their choices. There are Republicans who just believe that as a matter of principal. Have you heard any of that from this committee? Anyone signaling, yes, I'm going to ask you tough questions but in the end, this is the president's choice, and if I find you qualified, bingo, you're on?

BASH: Not yet. The person I'm going to listening for with regard to that is Lindsey Graham, and the reason is because the South Carolina Repubican was only Republican on this committee behind me who voted for the president's first nominee, Sonia Sotomayor. There were nine Republicans all together when there was a final Senate vote, but the only Republican on this committee.

Other Republicans on this committee have taken that approach in the past, namely, Orrin Hatch. That has very much been his philosophy and approach in the past, but last time for Sonia Sotomayor, he voted no, and he was giving no signals he's going to vote for Elena Kagan, even though he has been more open minded, if you will, to Democratic nominees in the past.

KING: Dana, say with us. I want everyone in the room to listen to this.

While I believe we have -- again, we're not expecting much in terms of candor here. The nominees are always quite careful, but Elena Kagan did discuss her views on the military policy of "don't ask, don't tell." Homosexuals cannot serve openly in the military. She is on the record on this issue not only as the dean of Harvard Law School but back to some of her days in the Clinton White House. So, I want to play that snippet just to see just how specific she is willing to be.


SEN. JEFF SESSIONS (R-AL), JUDICIARY COMMITTEE, RANKING MEMBER: Isn't it true, isn't it a fact that Harvard had full and equal access to the recruiting office, the office of career services, when you became dean? And isn't it true well, when you became dean?

ELENA KAGAN, SUPREME COURT NOMINEE: Senator Sessions, the military had full access to our students at all times, both before I became dean and during that time.

SESSIONS: That's not the question. I know that --

UNIDENTIFIED MALE: Let her answer the question.

SESSIONS: All right. You know -- go ahead. KAGAN: So, the history of this is Harvard did have this anti- discrimination principle. And for many, many year, my predecessor, who is Bob Clark, had set up a system to ensure military access but also to allow Harvard to comply with its anti-discrimination policy, which prohibited the office of career services from providing assistance to employers that could not sign the anti-discrimination pledge.

And the accommodation that Bob worked out was that the Veterans Organization would instead sponsor the military recruiters, so the only thing that was at issue was essentially the sponsoring organization.


KING: Dana, we will get to the legal conversation in the room. But at the beginning of that, there was a little tension between the chairman, Patrick Leahy and the ranking Republican, Jeff Sessions where Chairman Leahy, you could see his hand reach out and say, let her answer the question. What is the mood among the members on this important Day 2?

BASH: He said, let her answer the question and then Senator Sessions said okay, and then Elena Kagain started to answer, and then he jumped right back in.

You know, I actually think it's quite typical so far on how senators on either side of the aisle treat each other, especially the top Republican and the top Democrat. There have been a lot of compliments as well.

One thing I want to mention that I found interesting on the issue of "don't ask don't tell" is that Jeff Sessions just after that sound bite you played asked point-blank whether or not she supports or opposes the "don't ask, don't tell" policy. And she says, "I do oppose it now and I did oppose it then."

Now, she didn't have much of a choice because she made that abundantly clear back when she was a dean of Harvard Law School. She wrote that pretty clearly in a memo back in 2003. She said, "I consider it a profound wrong." She repeated it again here.

Now, I thought it was an interesting thing, and I wonder what the lawyers there think for someone who was up for the Supreme Court to be that definitive once again about a matter of policy that will be once again and is currently before the United States Congress.

KING: Our senior congressional correspondent Dana Bash in the room. Jeff Toobin wants to jump in.

We need to take a quick break. But we will let the lawyers explain their views on that when we come back and then the political types agree with the lawyers. Remember, we're tracking two very big, important confirmation hearings today. Elena Kagan's confirmation to the Supreme court and General David Petraeus's confirmation to be the U.S. commander in Afghanistan.

Our special coverage will continue in just a moment.


CROWLEY: Welcome back to CNN's special coverage of a busy day up on Capitol Hill where there are confirmation hearings going on simultaneously. To the right of your screen, those are the Petraeus hearings to be the commander over in Afghanistan over NATO and U.S. forces.

And on the left of your screen, that's Elena Kagan, who has been nominated to become Supreme Court justice. If all ends the way everyone expects it to, both of them will get the confirmation nod.

We want to take you back to the Kagan hearings simply because Senator Hatch, a longtime member of the Judiciary Committee is now getting his turn at questioning Elena Kagan.


SEN. ORRIN HATCH (R-UT), JUDICIARY COMMITTEE: -- Citizens United case was wrongly decided. Is that true?

KAGAN: Senator Hatch, I argued the case, of course. I walked up to the podium and I argued strenuously that the bill was constitutional. At least for me when I prepare a case for argument, the first person I convince is myself.

Sometimes I'm the last person I convince, but the fist person I convince is myself. And so, you know, I did believe that we had a strong case to make. I tried to make it to the best of my ability.

HATCH: OK. The statute being challenged in this case prohibited different types of for-profit corporations, nonprofit corporations and labor unions from using their regular budget to fund speech by candidates on election issues within 30 to 60 days of a primary or a general election.

They could form separate organizations called PACs, political action committees, to do so, but they did not have the freedom to use their own money directly to speak about candidates or issues as they saw fit. Now, I know there is a lot of loose rhetoric about the decision in this case allowing unlimited, quote, "spending on elections," unquote.

I assume that is to conjure up images of campaign contributions or collusion. But just to clarify the facts, the statute and the Citizens United case involved what are called "independent expenditures" or money spent by corporations, nonprofit groups or unions completely on their own to express their political opinions. This case had nothing to do with contributions to campaigns or spending that is coordinated or connected in any way with candidates or campaigns.

Isn't that true?

KAGAN: You're right, Senator Hatch, that this was an independent expenditure case rather than a contributions case.

HATCH: Right. When President Obama announced your nomination, he said you believed that, quote, "in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens," unquote. Virtually all of the rhetoric surrounding this case is focused on large for-profit corporations, but the law in question and, of course, this case affected much more than that. As you know, in that case, a nonprofit organize sued to defend its freedom of speech rights.

Do you agree that many people join or contribute to nonprofit advocacy organizations because they support the positions and message of those groups and because those groups magnify the voice of their members and their contributors?

KAGAN: I do agree that civic organizations are very important in our society, Senator.

HATCH: These are not just civic organizations. I'm talking about unions and businesses and nonprofits and profits and partnerships and S corporations and a lot of others.

KAGAN: Yes, you're right that the statute that the government defended in the Citizens United case was a statute that applied to many different kinds of corporations.

HATCH: That's right.

KAGAN: One of the things that the government suggested to the court in the course of its arguments was that one possibly appropriate way to think about the case might be to treat those different situations differently. But the statute itself applied to many different kinds of organizations.

HATCH: OK. Now, President Obama called the Citizens United decision, quote, "a victory for powerful interests that marshal their power every day in Washington to drown out the voices of every day Americans," unquote. Now, as I said, the statute applied to for- profit corporations, nonprofit corporations and labor unions.

Do you believe that, let's just take unions, do you believe that they are, quote, "powerful interests that drown out the voices of every day Americans"?

KAGAN: Senator Hatch, what the -- what the government tried to argue in that case was that Congress had compiled a very extensive record about the effects of these independent expenditures by corporations generally and by unions generally on the political process. And that what the Congress had found was that these corporations and unions had a kind of access to congressmen, had a kind of influence over congressmen that changed outcomes, that was a corrupting influence on Congress. And that was what the many, many, many thousand-page record that was created before Congress enacted the McCain-Feingold bill revealed, and that's what we tried to argue to the court.

HATCH: I understand the argument, but the statute banning political speech that was challenged in Citizens United also applied to small S chapter corporations that might have only one shareholder. There are more than 4.5 million S corporations or S chapter corporations in America. We have 56,000 in my home state of Utah alone. These are small companies who want the legal protections that incorporating provides. These are family farmers, ranchers, mom-and- pop stores and other small businesses.

Before the Citizens United decision, these small family businesses could be barred from using their regular budget for, say, a radio program or even a pamphlet opposing their congressman for his vote on a bill if it was that close to an election.

Do you believe the Constitution gives the federal government this much power?

KAGAN: Senator Hatch, Congress determines that corporations and trade unions generally had this kind of corrupting impact on...

HATCH: I'm talking about all of these 4.5 million S - small corporations as well.

KAGAN: Senator Hatch, of course, in the solicitor general's office, we defend statutes and Congress determined...

HATCH: No, no. I understand that.


HATCH: Let me ask my questions the way I want to.


HATCH: I will. I'm going to be fair. I intend to be, and you know that after 34 years.


Go ahead, I -- did you have something else you want to add?

KAGAN: No, go ahead.

HATCH: We have to have a little back-and-forth every once in a while or this place would be boring as hell, I tell you.


KAGAN: And its gets the spotlight off me, you know, so I'm -- I'm all for it. Go right ahead.

HATCH: I can see that. And by the way, I've been informed that hell is not boring, so you can imagine what I mean by that.

KAGAN: Just hot.

HATCH: OK. I have the current volume -- the current volume of the Code of Federal Regulations. This is governing federal campaign finance. It's 568 pages long, this -- this code. This does not include another 1,278 pages of explanations and justifications for these regulations, nor does it include another 1,771 Federal Election Commission advisory opinions, even more enforcement rulings, and still more federal statutes.

Now, let me ask you this: Do you believe that the Constitution allows the federal government to require groups such as nonprofit corporations and small S chapter corporations to comb through all of this? This is just part of it. There are thousands of other pages of regulations -- likely hire an election law attorney and jump through all the hoops of forming a political action committee, with all of its costs and limitations, simply to express an opinion in a pamphlet or in a radio or a movie, or just to criticize their elected officials. Do you really believe the Constitution allows that type of requirement?

KAGAN: Well, Senator Hatch -- I want to say Senator Hatch, you should be talking to Senator Feingold, but I won't do that.

Senator Hatch, Congress -- Congress made a determination here, and the determination was that corporations and unions generally had this kind of corrupting influence on Congress when they engaged in...


HATCH: Would you acknowledge that there are all these other smaller groups and all these other groups that have -- should have a right to speak as well?

KAGAN: The solicitor general's office, of course, defends statutes as they're written, and Congress made the determination broadly that corporations and trade unions had this corrupting influence on Congress and -- and in the solicitor general's office, we in the solicitor general's office, as other solicitor generals' offices have done, vigorously defended that statute as it was written...

HATCH: I understand.

KAGAN: ... on the basis of the record that was made in Congress, this, I think it was an 100,000-page record about the corrupting influence of independent expenditures made by corporations and unions. Now, the court rejected that position. The court rejected that position in part because of what you started with. You said political speech is a paramount First Amendment value, which is no doubt the case. And the court applied a "compelling interest" standard and the court rejected the position.

But -- but the position that we took was to defend the statute which applied broadly.

HATCH: No, I agree -- I have no problem with that because that was your job. But I'm getting into some of the comments by some of our colleagues, by the president and others, about how wrong this case was when I don't think it was wrong at all. Your 1996 law review article about private speech and public purpose emphasized the need to examine the motive behind speech restrictions.

Since you've already written about this, I would like to know whether you personally agree with the Supreme Court in the Citizens United decision that, quote, "speech restrictions --

KING: You are listening to veteran Republican Senator Orrin Hatch of Utah question Elena Kagan. She, of course, the president's nominee for the Supreme Court there.

They are having a conversation about one specific case, Citizens United. It's a campaign finance case. It's pretty complicated. Down here, it's about campaign finance, but up here it's about her views on the First Amendment and free speech, what kind of a view she would take on those issues if she is confirmed to the highest court in the land.

Donna Brazile, they are having a conversation that is very important to everyone in Washington because the Citizens United case does deal with money and politics. But it's actually a much more important and a broader decision about First Amendment rights and free speech in the country right now. Where is Senator Hatch going with this? Why is it so important to him

DONNA BRAZILE, CNN POLITICAL CONTRIBUTOR: I think is goes to the philosophical -- the current philosophical bent of the Supreme Court. The majority, whereas many in the progressive community believes that the Supreme Court is given a lot of influence and backing a lot of corporations over the interest of, say, ordinary people.

So, this is another case where many progressives believe that the Roberts court is just really pushing the envelope in giving more power to those who already have power in this society. And the Democrats, of course, are trying to curtail this law to ensure that those who use unlimited money will be able to disclose that in campaigns.

KING: I can see around this table the exact same reaction that is happening inside the room in the sense that -- I'm not smart enough to question the court's wisdom here, but when you say the court gives unlimited power to corporations, the other side says labor unions get those very same rights. Another group that also -- both business and labor --

GLORIA BORGER, CNN SENIOR POLITICAL ANALYST: And teeny, teeny little nonprofits, the S corporations that Senator Hatch was talking about. KING: So, why, Victoria, why is this so important to the senator -- Not just about the decision and Congress, will they rewrite a new law? but about her as a justice on the court for 20 or 30 years or more?

VICTORIA TOENSING, FORMER JUSTICE DEPT. ATTORNEY: Because he's not criticizing her for arguing the case. That was her job as solicitor general. You're supposed to uphold the congressional statutes. But what he saying is, what is your philosophy, because she has other writings saying she has not a problem with some kind of speech being stifled. Hate speech, for example.

And so the First Amendment people up there, which Senator Hatch is one of the strongest, says this is -- I want to know your judicial philosophy about this. Do you really believe that Congress has the ability to stop speech within 30 to 60 days of an election. Speech about the politics and the issues?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: What makes it particularly interesting is that this is the case that Elena Kagan argued herself to the Supreme Court. In fact, it was the first case she argued. And the first question was, do you agree with the position that you argued? And she basically said, yes, because, again, as solicitor general, she was responsible for defending statutes even if as a congressperson, she wouldn't have voted for them. But she argued the case, so she very much invested in it, associated with it. So, it really is fair game to test her feelings on that.

TOENSING: And I was there for that argument, and she actually told the Court that she thought it was okay to ban pamphlets, and Thomas Payne comes to immediately to mind, and there was a gasp.

BORGER: You know, when President Obama nominated her, this was the case he clearly referred to, because this is a case that gets Democrats very upset, even though it also allows unions to spend as much money as they like as corporations.

ED ROLLINS, CNN CONTRIBUTOR: This is not going back in the bottle for a long period of time. We just finished a presidential campaign which broke all federal election laws and all limits. More money was spent the last time. And this president basically decided, I'm not going to live in any way, shape or form -- I'm not going to take the federal money. So, the old post-Watergate stuff is now gone, and I think most people -- many people in the political world don't think there should be any limits. If you raise the money, you get to spend the money.

TOOBIN: And also, there is just a basic constitutional issue that I think a lot of ordinary people have trouble with. Two ideas at the heart of Citizens United case, which is speech and money are the same thing. And corporations are just like people.

BORGER: Are they individuals?

TOOBIN: Those are profound constitutional controversies, and Elena Kagan, if she gets confirmed, is going to have to see whether they remain the case.

CROWLEY: And if I'm not mistaken, is this not the case after it was decided, the president took on the Supreme Court during the State of the Union, and it was a huge moment --

TOOBIN: It was where Justice Alito said -- mouthed the words "not true."

BORGER: Well, he was. He was off the mark.


CROWLEY: Lots of legal things, but also a huge political overlay, obviously, as to who gets to contribute and who doesn't.

Again, we are covering the Kagan hearings. We are also covering the confirmation hearings of General David Petraeus. We are watching them both. We want you to stick with us. We're going to take a quick break.


KING: The Capitol Hill building there in Washington, D.C. A hot summer day inside the building and on the grounds, two important confirmation hearings. General David Petraeus, up to be the new NATO and U.S. commander in Afghanistan. His hearing before the Senate Armed Services Committee. And Elena Kagan, the solicitor general of the United States, the top attorney for the Obama administration at the moment, handed cases before the Supreme Court. But the president want the her to take a spot on the Supreme Court.

Those hearings continuing. Orrin Hatch, Republican of Utah, is questioning Elena Kagan. Back to the hearings in a minute. But let's talk politics for a minute.

Candy Crowley, my partner anchoring today, but also our chief political correspondent. I'm very interested in Orrin Hatch, who used to be among the kinder, gentler Republicans at these hearings. More open to saying, look, the Democrat won the election, the Democrat gets his pick.

But his colleague, Bob Bennett, just defeated in Utah. There is a conservative tide in the politics at the moment. Senator Hatch is up in the 2012 elections cycle. He is a step or three to the right of where we might have found him six years ago.

CROWLEY: Yes, because as Dana said a little while ago, Senator Hatch was one of those who believed if you're qualified, you get on the Court. I don't care if I don't believe in your judicial leanings, but if you're qualified, you go.

That went away with Sotomayor. We'll see if it goes away -- he sounded pretty tough in this particular one. And again, it is difficult to take politics out of the judiciary, to take the politics out of education. There is no way to do that in this town anymore. And Senator Hatch has to watch himself. It's not as though Robert Bennett, who didn't even get to the primary in his state of Utah -- it's not as if he's some raving liberal here. What did he do? He worked with the Democrats. So, you can't appear to be up there side be with Senator Leahy at any given point, particularly not in an election year. Particularly not if in a couple of years, you get to go ahead and run for reelection.

ROLLINS: To that point, the old Orrin Hatch, who was very close to Senator Kennedy and cosponsored great deals of legislation, would be murdered by the Tea Party if he did those types of thing. Obviously, he has to look to the future or retire. And I don't think he has any intention of retiring.

TOOBIN: You can see this in Supreme Court votes. In the '80s and '90s, Ginsburg, Breyer, Kennedy, Scalia were all confirmed with more than 90 votes. Those days are over. Elena Kagan will be lucky to match Sonia Sotomayor --

BORGER: And then came Bork. Then came Robert Bork.