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Rick's List

Countdown to Kagan; Storm Alex Heads for the Oil Spill

Aired June 28, 2010 - 15:00   ET

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

RICK SANCHEZ, CNN HOST: The first thing I want to do is I want to get some pictures if we possibly can of what's going on right now in Washington. Give me that shot, Rog. This is the hearing that's taking place. Let me tell you what's most interesting about this hearing.

You have a nominee who essentially says -- and we're not looking at her here -- but she essentially says this whole process is a charade. All right? The process of nominating a nominee for the Supreme Court of the United States is a charade. That's what she's said in the past. So in about oh, a half hour or so, we're going to be hearing from her.

There she is now, Elena Kagan. We're going to hear from her directly. Will she show us what a non-charade is supposed to look like? Keep that in mind. It's an important question. Here's what else is coming up on The List.

(BEGIN VIDEO CLIP)

Here's what's making The List today. You're about to hear from Elena Kagan for the very first time on the record. And you'll be hearing from her opponents as well.

SEN. JEFF SESSIONS (R-AL): At Harvard, she barred the military from the recruiting offices, demeaned them.

Moratorium (unintelligible) will fall under my jurisdiction.

You didn't know that before?

I didn't either

SANCHEZ: Because President Obama said they can't drill, these guys can't work. That means they have to be paid for their loss, too. Anybody else? It's looking like this will be a hurricane. But how is it going to affect this?

Michael Vick, say it ain't so. Not again. Did he violate his probation? That's what the NFL wants to know.

UNIDENTIFED POLICE OFFICER: Back up, stay back!

SANCHEZ: And did the police in Canada overreact and violate protesters' right to assemble or not? We'll let you decide. The List you need to know about. Who's today's most intriguing? Who landed on the list you don't want to be on? Who's making news on Twitter? It's why I keep a list. Pioneering tomorrow's cutting-edge news right now.

(END VIDEO CLIP)

Boy, it's a list today, a hot list at that. Hello, again, everybody. I'm Rick Sanchez. This is going to be good. We're going to be hearing in just a little while from Elena Kagan herself. Who is that? That's Sheldon Whitehouse I believe is questioning her right now. He's a dem from Rhode Island.

By the way, look what I have here. This piece of paper that I have right here in front of me is the general guidelines from what Elena Kagan is going to say. Of course it's something to be just on a piece of paper in black and white ink. It's quite something else when she starts talking and she starts having to answer questions. So let's start with that.

We've got a lot planned for you. Topping the list right now, the testimony of Supreme Court Nominee Professor Elena Kagan. Now, if you think that the Constitution of the United States of America is crystal clear, my challenge to you is to right now go get it and read it. If you don't have time, just read the Second Amendment, for example, on the right to bear arms.

I'll read it for you, a well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. Well, the sentence structure is certainly suspect, at least that's what my Professor Irving is saying at the University of Minnesota would have told me.

It also makes much of what's written somewhat debatable. What I'm trying to say here is, you like it or not, our Constitution is, in many ways, ambiguous. The rights that it bestows often conflict with one another. And it doesn't and can't cover absolutely everything.

So today we have Elena Kagan, a step away from joining our highest panel of legal minds, the panel that we entrust to interpret the Constitution and to preserve our rights without any personal bias and without political agenda.

Then we have over the weekend and just a couple of hours ago, a gentleman by the name of Jeff Sessions, Alabama republican, he says she's not capable of doing that because he's saying that Kagan isn't a judge, she's a politician with an agenda.

(BEGIN VIDEO CLIP)

SESSIONS: President Obama's nominee has stated her -- started her political career in earnest as a staffer on the presidential campaign of Michael Dukakis. She took leave from teaching at law school to work for this committee under then chairman Joe Biden to help secure the nomination of Ruth Bader Ginsburg, a former counsel for the ACLU and now one of the most active members and justices on the Supreme Court.

Professor Kagan left teaching the law to spend five years at the center of politics working in the Clinton White House, doing as she described it mostly policy work. During her White House years, the nominee was the central figure in the Clinton-Gore effort to restrict gun rights. Ms. Kagan was also the point person for the Clinton Administration's effort to block congressional restrictions on partial birth abortions.

Indeed, documents show that she was perhaps the key person who convinced President Clinton to change his mind from supporting to opposing legislation that would have banned that procedure.

(END VIDEO CLIP)

SANCHEZ: There you have it, republican Sessions going on with a litany of all the things that are wrong with her as a Supreme Court Justice. Now, hold that thought because we are going to come back to that in just a minute. Keep in mind, as a member of the party out of power, it is Jeff Sessions' job to be in the opposition, say those things, point out what's wrong with her and he's doing his duty. And we're doing ours.

We found out all we can about Kagan. And that includes looking for people who can tell us things about her that many of us don't even know. People who know her, people who've worked with her, people who've studied with her, people who have grown up with her. Here's the first part of our coverage. This is my colleague, Jason Carroll

(BEGIN VIDEOTAPE)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: Our solicitor general and my friend, Elena Kagan.

JASON CARROLL, CNN NATIONAL CORRESPONDENT (voice over): The announcement not entirely unexpected. Elena Kagan had been on the short list for sometime. But it still came as somewhat of a shock to her friends like Kevin Lovecchio and Josh Gottheimer.

JOSH GOTTHEIMER, FRIEND OF ELENA KAGAN: I sort of had to listen a few times to make sure I heard it right.

KEVIN LOVECCHIO, ELENA KAGAN'S STUDENT: It was very surreal seeing her standing next to the president.

CARROLL: An exciting moment for CNN legal analyst Jeffrey Toobin as well. Do you remember what your thoughts were when you heard that the president had chosen her?

JEFFREY TOOBIN, CNN SENIOR ANALYST: Holy [expletive ]. I'm sorry. I can't say that. But then I thought, like, a peer of mine is going to be on the Supreme Court? It's like, and you covered the Michael Jackson case?

CARROLL: Toobin first met Kagan at Harvard Law School back in the '80s.

TOOBIN: My early impressions of Elena were even at Harvard Law School which is full of people who are smart and who think they're very smart, she was unusual intelligent, but also unusually well- adjusted.

CARROLL: Harvard would play an important role in Kagan's career. High points include law clerk for Justice Thurgood Marshall, Domestic Policy Director in the Clinton White House. The first woman dean of the Harvard Law School and Solicitor General in President Obama's administration. These two remember Kagan back when they were Harvard law students and she was the dean.

(on-camera): If someone were to ask you, what's she really like, what would you say?

LOVECCHIO: I would say she has an enormous appetite for information in all capacities.

CARROLL (voice over): Gottheimer also worked with Kagan when he was a speechwriter in the Clinton Administration.

GOTTHEIMER: She is incredibly bright and always well-prepared and you better know your stuff when you see her.

CARROLL: Kagan is not without critics who questions her lack of judicial experience. If confirmed, she would be the first appointee in nearly 40 years who has not been a judge.

SESSIONS: So she does have a lack in that area.

CARROLL: Senator Jeffrey Sessions is the ranking republican on the Judiciary Committee who plans to question Kagan on a number of topics during the hearing including gun control and abortion. But will she answer?

In 1995, Kagan criticized the process calling it a hallow charade, saying Senators should insist a nominee reveal their views on important legal issues.

(on camera) And I'm wondering if those words are going to come back to haunt her as she herself goes through the proceedings?

SESSIONS: I think so.

CARROLL: You think so?

SESSIONS: Well, I think they'll be raised.

CARROLL (voice over): Jeffrey Toobin has a sense of how the hearings starting today will go.

TOOBIN: Well, I think her critique of the hearings was dead on. I expect she will not follow her own advice and will instead follow the advice of the people in the White House, which is always, say as little as possible.

CARROLL: Jason Carroll, CNN, Washington.

(END VIDEOTAPE) SANCHEZ: Look, obviously we're going to be cutting into this thing as much as we possibly can. Looking for the saliate moments that we know you want to hear. Some of this is a bit boring to be honest with you. Some of it is just politicians who are going to use this as an opportunity to read their opening statements.

The good part is obviously when Elena Kagan starts to talk and also when she starts getting asked some very specific questions. So today what we have Elena Kagan -- I also want to bring you up to date on this. I told you we'd return to what Jeff Sessions says, right? He said that Kagan's a liberal. She has an activist agenda. She's an activist justice in waiting. That critique is to be expected from a republican, but I also want you to listen to this now, okay? This is a democrat, Herb Cole. He's from Wisconsin.

(BEGIN VIDEO CLIP)

SEN. HERB KOHL (D-WI): Your judicial philosophy is almost invisible to us. We don't have a right to know in advance how you will decide cases but we do have a right to understand your judicial philosophy and what you think about fundamental issues that will come before the court.

(END VIDEO CLIP)

SANCHEZ: As it turns out -- and not that they'll vote against her -- but a lot of democrats aren't so sure about Kagan either. We've talked about this before, and we're going to talk about it later today. Some of these democrats are saying, when are we going to get our Scalia, our unambiguous lefty who will get there and go toe to toe with the Antonin Scalia's and the Chief Justice John Roberts and the Samuel Alitos. That's what they're saying.

I mean that's the folks on the far left or the left. Maybe she's not liberal enough. Here's what we can expect Kagan to say. We've got part of her statement. Sounds like she's going to be somewhat measured. She says in here -- and if you've got the camera, come on over, Robert. This is part of what I highlighted. There's a lot more, obviously. "I've learned that we come to the closest to getting things right when we approach every person and every issue with an open mind.

I will make no pledges this week other than this one -- that if confirmed I will remember and abide by all of these lessons. I will listen hard to every party before the court and to each of my colleagues I will work hard and I will do my best to consider every case impartially, modestly, with commitment to principle and in accordance with the law."

There's just a glimpse of what she's going to be talking about. Who are we going to be talking to? Well, we're going to be dipping in and hearing from Franken. We're going to hear from Sessions. Obviously going to be hearing from Kagan.

Let me tell you who else we're going to be dipping into -- John King, Candy Crowley, Gloria Borger, Ed Rollins, Erick Erickson, Dana Bash, Victoria Tensing, Donna Brazile -- all of those as we assemble a panel to take you through this in ways that maybe you haven't been taken through before.

We expect it's going to be good and again, she should start talking, if everything stays on schedule, within the next 20 to 25 minutes, maybe half hour. Obviously it's not set in stone. But we're going to have it for you here with the best analysis from the best political team in the country.

Also this --

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Protesters are being held for up to eight hours without water. They're often being given minimal food over a ten-hour period. They're often being held six to eight per cell.

SANCHEZ: Police used more than smoke bombs. The question is did they come in too heavy-handed? That's the accusation. We're looking into it in Canada.

(END VIDEO CLIP)

SANCHEZ: Also, the storm in the Gulf looks like it's going to be become a hurricane. What you need to know, what impact it might have on the oil. Is it going to push it toward the shore? Oh, and by the way, there are reports now that there's more oil on the beaches of Mississippi. He's going to take you through this. Here's Chad Myers. Stay right there. Chad's got all of that coming up on your list. Your national conversation, "RICK'S LIST" will be right back.

(COMMERCIAL BREAK)

SANCHEZ: Who is that? Oh, frequent guest of this show, that's Ted Kaufman, democrat from Delaware. He's one of the guys who might be considered to be on the left. You know what, let's dip in to this real quick and hear what he's saying. We can always dip back out.

SEN. TED KAUFMAN (D-DE): Based on your experience working in all three branches of government and the skills you developed running a complex institution like the Harvard Law School. And, yes, the prospect that you're being the fourth woman to serve on the nation's highest court.

Some pundits and some senators have suggested your lack of judicial experience is somehow a liability. I could not disagree more. While prior judicial experience can be valuable, the court should have a broader range of perspectives than just from the appellate branch.

General Kagan, you bring valuable non-judicial experience and a freshness of perspective that is lacking on the current court. As has been said over and over again but I think it's bear worth repeating, in the history of the Supreme Court, more than one-third of the justices have had no prior judicial experience before being nominated, and a nominee's lack of judicial experience has certainly been no barrier to success. When Woodrow Wilson nominated Louis Brandise in 1916, many objected on the ground that he never served on the bench. Over his 23-year career, however.

SANCHEZ: So there you go. He sounds like a fan going right to the question of whether or not someone who hasn't served as a jurist, hasn't served as a judge should be nominated on the Supreme Court of the United States. He said, look, it's happened before. So we're going to take you through a big part of that conversation as we move forward.

And by the way, we've got brand-new information for you coming in right now. We've been following this story all day long. The word we're getting now, and let me just make sure I'm reading this correctly. It's coming to us from our sources.

The former vice president Dick Cheney has left George Washington university hospital. Former vice president Dick Cheney has left George Washington University Hospital. That's now official and reportable and we're happy to be able to report that. In fact, Dick Cheney is out of the hospital now. There was much speculation about that throughout the day.

Now, back to Chad Myers, let me bring you into this situation. Roger, if you could, people want to know what's going on with that storm that we've been following along the Yucatan. Apparently this thing went through Cancun but not as a major storm. What was it, a tropical depression?

CHAD MYERS, AMS METEOROLOGIST: It was a storm. It was in the 60 - 70 mph but it was more toward Belize. You'll see Belize on your itineraries from Royal Caribbean and where is that country, right? It's a tiny little thing attached to the Yucatan Peninsula.

SANCHEZ: So the really smart people who follow this, the scientists say this thing will probably become a hurricane in some form.

MYERS: Yes.

SANCHEZ: The question is, where will it go and what effect will it have on the oil? Take us through it.

MYERS: The farthest north it will probably approach the U.S. would be Corpus Christi. A more likely scenario would be Brownsville. Even more likely would be Monterey, Mexico, south of Brownsville by 50 or 60 miles. But does that affect the oil and the answer is absolutely yes.

How does it affect the oil even though it's so far away? Here's Cuba. Here's Belize. That country we just talked about. Here's all the way up to Cozumel and Cancun would be right here. Back down here and then back into the Bay of Campeche, very, very warm water.

When this gets back into it in full strength, this storm is going to literally explode into a hurricane. It tried to become a hurricane as it came onshore, and it was very, very close. And obviously we didn't get any significant wind results because we didn't have any really significant areas there with anemometers to show that.

But how does this affect the Gulf of Mexico? We would have loved for this storm to have made a big right-hand turn and not become a hurricane but something over south Florida, or even --

SANCHEZ: Maybe Tampa, yeah.

MYERS: Lovely, lovely, make it rain, make it 40 mph, that would have taken the oil and pushed it back out into the ocean, back into the Gulf and let it sit there for a while. Oil that sits there and gets older is less volatile. It's less deadly to the wildlife.

And so it would just kind of sit there and evaporate and then kind of go away a little bit. At least some of these organisms would eat it. That is not going to happen, Rick. So it's going to go to the left. It's going to go to the west.

What's this thing going to do all week long until Thursday. It's going to spin that way. And even though it might only be 25 miles per hour, the wind is going to be blowing back onshore from Mobile, through Gulfport back all the way into Grand Isle. So this blob of oil is now going to be new oil because it's not going to have time to sit out here and spin for a while.

Newer oil, more volatile oil, and it will be right on shore near Gulfport, the Chandelier Islands, all the way back toward Grand Isle, and not a great situation anyway.

SANCHEZ: Right.

MYERS: But at least --

SANCHEZ: It would have been worse if it had gone to Houston.

MYERS: It didn't do that.

SANCHEZ: Right.

MYERS: Right? I mean it didn't run right over the oil slick and take a storm surge and push it onshore.

SANCHEZ: Yes.

MYERS: Because at that point, they have to shut down all operations. They can't even pump anymore. They can't keep the cap on anymore and the oil would have just continued to -- at this distance, they shouldn't have to suspend any operations, even though the waves may get to be five or six feet up.

SANCHEZ: Quick question, the oil reef that's being reported on the shores of Mississippi's mainland today, more like mousse patties they call them -- I think they mean mousse like hair mousse not like, you know what I mean.

You're from Nebraska so you know exactly what cow patties means. That's not affected by this storm, right? MYERS: No.

SANCHEZ: Probably not.

MYERS: Not at all.

SANCHEZ: OK.

MYERS: Not at all. This still, thought will get closer and closer to shore in Thursday, Friday, Saturday's range. Not now.

SANCHEZ: All right, thanks Chad. Great explanation, as usual by the way. Here's what we're going to do. We're going to take a break right here. When we come back, we understand that Senator Franken is going to be asking questions. There's reason to believe this might be an interesting opening statement from Franken.

We'll take that for you in just a little bit right here. Stay here. The Senate Judiciary Committee continues with the nomination of Elena Kagan. You'll see it live on "RICK'S LIST."

(COMMERCIAL BREAK)

SANCHEZ: Welcome back. This is "RICK'S LIST." Looks like we're about to turn the corner with our coverage here. Let me give you the order. There's Al Franken. He's getting started now. I'm going to let you listen to what he's saying. It's all opening statements until we get to Elena Kagan.

Then she's going to give us hers. It's Franken, then John Kerry, Massachusetts, then Scott Brown, Massachusetts, and then Elena Kagan. So let's continue now. I want to take you back to this hearing. Let's listen to the man from the Land of 10,000 Lakes, Senator Al Franken.

SEN. AL FRANKEN (D-MN): Making sure that the justices of the Supreme Court are brilliant, humane and just individuals. But these hearings are also a learning experience for the people of Minnesota and for every American. Before I joined the United States Senate, I watched every televised confirmation hearing, not the whole thing, of course. But at least part. I think part of my job is to continue that learning experience for the American people.

Now, last year, I used my time during these hearings to highlight what I think is one of the most serious threats to our Constitution and to the rights it guarantees the American people -- the activism of the Roberts Court. I noted that for years, conservatives running for the Senate have made it almost an article of faith that they won't vote for activist judges who make law from the bench.

And when asked to name a model justice, they would often say Justice Thomas, who I noted has voted have voted to overturn more federal laws than Justice Stevens and Justice Briar combined. In recent campaign cycles, you'd also hear the name of Justice Roberts.

Well, I think we've established very convincingly -- we did during the Sotomayor hearing, that there is such a thing as judicial activism, there is such a thing as legislating from the bench, and it is practiced repeatedly by the Roberts Court, and it has cut in only one direction -- in favor of powerful corporate interests and against the rights of individual Americans.

In the next few days, I want to continue this conversation because I think things have only gotten worse. And so I want to say one thing to the people in Minnesota who are watching on TV or listening with few exceptions -- I'm echoing Senator Cardin here -- whether you're a worker, a pensioner, a small business owner, a woman, a voter or a person who drinks water, your rights are harder to defend today than they were five years ago.

My state has been victim to the third largest ponzi scheme in history. And yet in 2008 in a case called Stoneridge, the Roberts Court made it harder for investors to get their money back from people who defrauded them. The Twin Cities have more older workers per capita than almost any other city in the nation, and yet in 2009 in a case called Gross the Roberts court made it easier for corporations to fire older Americans and get away with it.

Minnesota has more wetlands than all but three states. And yet in a case called Raponos, the court cut countless streams and wetlands out of --

SANCHEZ: As he gets into the specifics of the state of Minnesota, I want to address this conversation that we keep hearing from both the left and the right. The word is activist, activist judges and the question is -- I think as Americans we all listen to this, and we're trying to figure out exactly what it is.

Is this a legitimate concern or a political buzz word? Is it a legitimate concern or simply an overused political buzz word? Jeffrey Toobin is one of our panelists standing by with John King, Candy Crowley, Gloria Borger, Ed Rollins, Dana Bash, Erick Erickson, Donna Brazil and Victoria Tensing. Jeffrey, start us off. What is it?

TOOBIN: Well activism takes place when a court overturns the will of the people, overturns the work of the elected representatives who have some accountability to the public. The curious thing is that there is liberal judicial activism which is a case like Roe v. Wade where the court says, look, Texas State Legislature, you might want to ban abortion but we say it's unconstitutional.

But there is conservative judicial activism as well and that's what we're seeing in the Roberts Court, whether it's striking down gun control laws or striking down the McCain-Feingold law, a law passed by Congress, signed by President Bush. Activism is something that politicians don't like in general because it is overturning their will. It's an anti-democratic process. It is necessary sometimes under the Constitution but it depends on whose ox is gored as to whether you think it's a good thing or not.

SANCHEZ: John King, I just want to ask you a quick question before you do anything else. John, are you there? John King?

JOHN KING, CNN HOST: I'm here, Rick.

SANCHEZ: I want to show you a picture, and I want you to tell me who that guy is. Go ahead, Roger. Do you have that shot?

Look at that guy down there on the right. Can you see him down there? He's -- that's Elena Kagan on the middle and the guy on the right, the one with chipmunk cheeks -- the one with the chipmunk cheeks --

KING: Yes, that would be -- that would be this guy Jeffrey Toobin. That would be -- that would be -- a guy named Jeffrey Toobin. It's probably the same Jeffrey Toobin that's right here in the room.

TOOBIN: You know what? I'd just like to say, I was named all hair in the '80s. So, I mean, I had the real '80s hair going on there. So, you know, it was a gift I had.

(CROSSTALK)

TOOBIN: Not a lot of hippies on the law review.

SANCHEZ: You know, it proves you, (INAUDIBLE) at least in this conversation anyway.

John King, pick up that conversation. Why do we keep hearing all of these guys say they're an activist and they're always pointing to the other side until one of their guys comes up and say, well, he's not an activist?

KING: Well, I first just want to say that was pre-Twitter. You can't twit-pick that, although you could do it now, Rick. You'd make a lot of friends, a lot of Jeff's friends would be grateful.

Look, this comes up both ways. There -- you hear the Democrats, those who are left of central, call them liberals, call them progressives, what you will, saying the Roberts court that has a five-vote conservative majority has been an activist court because it does things they don't like. You will hear conservatives now looking at Elena Kagan saying, you come from political campaign, you worked for Dukakis, for Gore, for Clinton, now for Obama, you're an activist liberal and you're going to get on the court and do things we don't like.

You now, you have a former prosecutor here who disagrees with Jeff a lot of things. There's probably a neutral definition of activism. Unfortunately, Supreme Court confirmations get so political, it's what the left doesn't like, what the right doesn't like. It's not really a classic law definition of what's an activist.

SANCHEZ: Well, let me ask you former prosecutor, Victoria Tinsey, do you think Samuel Alito -- do you think Samuel Alito is a righty activist, as the left says?

VICTORIA TOENSING, LEGAL EXPERT: A righty, as opposed to a lefty?

SANCHEZ: A right wing activist jurist, because that's what he's called.

TOENSING: Well, f course not. What Alito would say is, I just went back to the Constitution. I read the Second Amendment. And so therefore, basic to the rights of the American people in the United States is the right to bear a gun. And that's what the Constitution says and I go back to the striking down the McCain/Feingold bill.

That court, the justices who struck it down in the five-judge majority would say, hey, we just went back to the First Amendment. This was a First Amendment case. This wasn't anything about overruling a statute.

When Congress wrote the statute -- and this is what the court is supposed to do -- if Congress writes a statute, it takes away people's ability to speak out within 90 days of an election, that's a First Amendment case, say the conservative justices.

SANCHEZ: Donna Brazile, are you there?

DONNA BRAZILE, CNN POLITICAL CONTRIBUTOR: Yes, sir.

SANCHEZ: I am wondering what you have to say about Samuel Alito, Antonin Scalia, I keep hearing the folks on the left say, look, these guys have basically been taken the court from an activist standpoint way to the right. Victoria Toensing said, no, they're not. They're simply interpreting the law right down in the middle. You say what?

BRAZILE: I believe that they are given an unfair advantage to corporations and the powerful interest in this country. That's what I would say about them. But, look, President Obama said he was seeking someone, a nominee who's dedicated to the rule of law, who would also protect and adhere to the Constitution, but also someone who had some real-life experiences in empathy. And I think empathy is a good attribute, something -- I think it says that the nominee would bring to the court and to, I hope her rulings, some understanding of how the law impacts ordinary people.

GLORIA BORGER, CNN SR. POLITICAL ANALYST: Rick, you know, this is Gloria. I think we're trying to answer here, sort of basically an unanswerable question which, of course, the senators have been asking which is: is Elena Kagan somebody who's going to be driven more by politics than by the law?

SANCHEZ: Yes.

BORGER: You can ask that about Samuel Alito, you can ask that about Elena Kagan or Sonia Sotomayor or Justice Roberts.

SANCHEZ: Good point. It ends up confusing a lot of folks at home who are wondering, well, what is the rule.

By the way, John King, take us into this. We just saw a very interesting handshake going on there. Tell us the significance of that.

KING: And this is a fascinating handoff. The chairman, Patrick Leahy, is speaking. He is introducing the two senators from Massachusetts.

John Kerry, to the left of your screen. Remember him? He ran for president once.

To the right of your screen, Scott Brown, he is the new Republican senator for Massachusetts, who won in a huge upset in the special election for the seat of the late liberal icon Senator Edward M. Kennedy, who if he were still in the Senate would be in this room today.

Senator Leahy is introducing them because they as the Massachusetts senators are going to introduce Elena Kagan. This is a tradition in the Senate. You take your home state senators. She was born in Manhattan, but because she was last before coming back into government, the dean of Harvard Law School, she is claiming Massachusetts as her home.

As we watch Senator Brown introduced here, we know Senator Kerry is a yes vote, barring some wacky, unpredictable things, which is unlikely to happen. The interesting thing is: what will Senator Brown's tone be? Because remember, Rick, he was the tea party, the conservative hero when he took this seat held so long by Senator Kennedy. Here's Senator Kerry beginning the introduction.

SANCHEZ: Great perspective, thanks very much.

SEN. JOHN KERRY (D), MASSACHUSETTS: And to all my colleagues on the important judiciary committee at this important moment, members of the committee, Mr. Chairman -- 16 years ago, I had the privilege to introduce Stephen Breyer to this committee. And with the loss today of Senator Byrd, I'm particularly reminded of Senator Kennedy sitting beside me that day.

As you all know, better than anybody, Senator Kennedy served on this committee for 46 years. And I know the pride he would feel seeing Elena Kagan nominated for the Supreme Court of the United States. When Ted introduced then Judge Breyer, he quoted Oliver Wendell Holmes, that every calling is great when greatly pursued. Those words applied to Stephen Breyer. And I can share with you my complete and total confidence that they apply equally to solicitor general Elena Kagan.

Massachusetts is proud, Mr. Chairman, of Elena Kagan's accomplishments. And we believe that through these hearings, as each of you get to know her as we do, she will earn broad bipartisan support just as she did when she was nominated as solicitor general. By now, every one of us has heard many times repeated -- and you know well the high points of her record -- a trail blazing pace culminating in her selection as the first woman to serve as the dean of Harvard Law School and the first woman to serve as solicitor general.

If confirmed, she will make history once again in an America where women comprise more than half the population. She will join Justices Ginsburg and Sotomayor. And for the first time in our history, a full third of the United States Supreme Court will be women.

But there's much more that distinguishes Elena. Her life has really been characterized by her passion for public service and her awareness of what it means to be a good public citizen.

A close friend from her days clerking for Justice Marshall remembers Elena interviewing at a big law firm in New York, meeting with a young partner who, with no family to support, was pulling in close to $1 million a year. So Elena asked him, "What do you do with all that money?" And he replied, "I buy art." Elena just shook her head in the conviction that there really were better ways to expend her life's work.

And she continued to pursue efforts to more directly impact the lives of those around her. Her skills and intellect very quickly came to the attention of the Clinton White House which is when I first got to know her. I'd been asked by the chairman of the commerce committee, Senator Hollings, an old friend, to help break through a stalemate on a bipartisan tobacco bill. It was difficult issue for both caucuses. Elena became the administration's point person.

And when we started out, no one gave us any hope of being close to or getting close to passage. But Elena camped out in the vice president's office off the Senate floor, shuttling back and forth to the White House. She worked day and night equally with both sides of the aisle, working every angle, thinking through every single approach.

And on the eve of the commerce committee's mark-up, things appeared to be falling apart, something we're all too familiar with here. But Elena simply wasn't going to let that happen. That was an unacceptable outcome. She got together with the Republican senators and staff and she listened carefully. And she helped all of us to meet the last-minute objections.

It was classic Elena. She saw a path forward when most people saw nothing but deadlock. And it led to a 19-to-one vote to pass the bill out of committee -- a mark of bipartisanship, consensus-building that few believed was possible.

That's what I believe Elena Kagan will bring to the court. She was tough and tenacious in argument when necessary. But she also knew when it was necessary to strike a compromise. She had a knack for knowing how to win people over and ability to make people see the wisdom of an argument.

I remember lots of late nights and a very quiet Capitol building, walking off the Senate floor to meet with my staff, and Elena. And invariably, Elena would be the one to have a new idea, a fresh approach. It was a tutorial in consensus-building from someone for whom it was pure instinct and it won Elena the respect of Republicans and Democrats alike.

No doubt, her hands-on experience working the governance process is actually in this day and age and in this moment of the court probably an enormous asset. Frankly, I think it's a critical component of what makes her a terrific choice -- someone who really understands how laws are created and the real-world effects of their implementation. It's a reminder of why some of the greatest justices in our history were not judges before they sat on the court. And among those are names like Frankfurter and Brandeis.

I might add that she brought the same pragmatic knack for consensus-building to her stewardship at Harvard Law School. There, she found what was affectionately acknowledged -- I emphasize affectionately acknowledged -- as a dysfunctional and divided campus. And she transformed it again into a cohesive institution, winning praise from students and faculty across the ideological spectrum.

Elizabeth Warren, Elena's colleague at Harvard and chair of the congressional panel currently overseeing our economic relief effort, says simply, she changed morale around here.

Charles Fried, the former solicitor general under President Reagan and a renowned conservative constitutional expert says of her prospects as a justice on the Supreme Court, quote, "I think Elena would be terrific because, frankly, the court is stuck. The great thing about Elena is, there's a freshness about her that promises some possibility of getting away from the formulas that are wheeled out today on both sides. I have no reservations about her whatsoever.

John Manning, the first hire under Kagan's deanship, a conservative and an expert on textualism and separation of powers says, I think one of the things you see in Kagan as dean was that she tried to hire folks with different approaches to law and different ideological perspectives. She was equally as strong in her praise for Scalia as she was in her praise for Breyer. She celebrated both. It's a good predictor of how she'll be as a judge. She would be fair and impartial, the sort of judge who would carefully consider briefing an argument in every case, the sort of judge I would want if I didn't know what side of the case I was arguing.

And so, in closing, my colleagues, I'm glad that in these next days, you're going to get a chance to know Elena as so many of us have in Massachusetts, the way she thinks, her approach to the law, an extremely capable public servant well-grounded in the Constitution and -- I assure you -- deeply committed to the values that we all share as Americans.

SEN. PAT LEAHY (D-VT), CHAIRMAN, JUDICIARY COMMITTEE: Thank you.

KERRY: I always remember what Justice Potter Stewart said about what makes a first-rate judge. He said, "The mark of a good judge is a judge whose opinion you can read and have no idea if the judge was a man or a woman, Republican or Democrat, a Christian or Jew, you just know he or she was a good judge."

I believe that Elena Kagan will meet that standard. I have every confidence that she'll be an outstanding justice of the Supreme Court in every sense of the word.

So, thank you, Mr. Chairman, for the privilege of introducing this superb nominee.

LEAHY: Thank you very much.

Also, we have Senator Scott Brown. Senator Brown was elected this January to fill the seat of one of this body's beloved members, Senator Ted Kennedy, who was actually the longest serving of either party on the Senate Judiciary Committee in the history of the Senate.

Senator Brown serves on the committee of armed services, the committee on veterans affairs, and the homeland security and governmental affairs committee. Prior to his election to the U.S. Senate, Senator Brown served in the Massachusetts State Senate where he advocated for children's and victims' rights and worked to promote environmental and good government initiatives. He's a 30-year member of the Massachusetts Army National Guard. (INAUDIBLE) He was awarded the Army Commendation Medal for meritorious service and homeland security following the terrorist attacks of September 11th, 2001.

And I know from my conversation I had with you at the end of last week, that you had to move a number of things around to get here this afternoon. And I want you to know the committee appreciates that and please go ahead, Senator Brown.

SEN. SCOTT BROWN (R), MASSACHUSETTS: Well, thank you, Mr. Chairman. The thanks is to you for accommodating Senator Kerry and I in adjusting your schedules. It means a lot to sit next to Senator Kerry and make the presentation to you and to ranking member sessions and the members of the committee. I'm pleased to join you in upholding a longstanding tradition of introducing Elena Kagan of Massachusetts to the committee.

First, though, I'd like to express my heartfelt condolences to Senator Byrd and his family for the loss that they've suffered during this difficult time. And although I only served briefly with Senator Byrd, I was well aware of his deep and longstanding commitment to the Senate and what it stood for. And he represented the people of West Virginia with great class and dignity.

I also am saddened to hear the passing of Martin Ginsburg, the husband of Justice Ruth Bader Ginsburg and offer my condolences to Justice Ginsburg and her family.

And I wish to congratulate Ms. Kagan on her nomination. And it's an honor to introduce her today. I had the pleasure of meeting her last month and found her to be an impressive and pleasant individual. I indicated then and I look forward to attending this committee's hearings to learn more about her record, her philosophy and her qualifications.

As an attorney myself, I recognize an impressive legal resume when I see one, and there's no doubt that Ms. Kagan has gone far since graduating from Harvard Law School magna cum laude in 1986. And following her law school days in Cambridge, Ms. Kagan clerked for appellate court judge in U.S. Supreme Court, Justice Thurgood Marshall and then she entered the private legal practice at a prestigious Washington, D.C. law firm before joining the faculty of the University of Chicago school in which she earned tenure in 1995.

From '95 to '99, she served with the Clinton administration first as an associate White House counsel and then in position with the domestics policy counsel. In 1999, she returned to Massachusetts to join the faculty of Harvard Law School. You heard Senator Kerry mentioned some of her accolades there, where she would become later dean and Charles Hamilton Houston professor of law.

And while at Harvard, her article of presidential administration was named the year's top scholarly article by the American Bar Association section on administrative law and regulatory practice.

President Obama nominated Ms. Kagan to be solicitor general on January 5th, 2009. And I'm very proud that our nation's first female solicitor general has such deep roots in Massachusetts. And if confirmed, she would be the third woman on the Supreme Court and only the first in the history of our court. As solicitor general, she's frequently represents the United States before the Supreme Court. And she's argued several high-profile cases before the court and was recently victorious in the Holder versus Humanitarian Law Project case, which held Congress' prohibition of material support and resources to foreign terrorist organizations is constitutional.

She's undoubtedly a brilliant woman who's served her country in a variety of capacities and has made significant contributions to Massachusetts and I certainly thank her for that.

And this committee, as you know, Mr. Chairman and members of the committee, is about to embark on one of the most serious duties that the Senate is constitutionally tasked with, something that I'm honored to play a small part in -- you know, vetting the qualifications, temperament and philosophy of a lifetime appointment. Something that is very, very serious and very important.

And I look forward to Ms. Kagan's responses to the committee's questions and I know that I have some of my own and am quite sure my colleagues here today do as well. Our constitutional duty of advice and consent is imperative and should not be taken lightly. And I plan not to take it lightly as well.

In closing, I look forward to a thorough and fair examination of Ms. Kagan's record. And I want to thank you, Mr. Chairman, and ranking member sessions and members of the committee for adjusting your schedules to allow Senator Kerry and I to come before you. Thank you.

LEAHY: Thank you very much. And as I said, you're the ones who have adjusted yours, I think. I thank you both for being here and I appreciate that.

And then the staff will reset the table and if we could invite Ms. Kagan back to the table.

SANCHEZ: They're literally having to put the table back out and there she's going to go and sit down.

And then two completely different messages here -- Kerry is very personal, really took ownership of what he was saying. Brown, on the other hand, seemed detached, literally was reading her resume, just reading her resume and said he looked forward to asking her a lot of questions. Two totally different strategies used by these two men.

Kagan is now going to sit. She's going to talk about equality and about all the experience that she's gathered being a non-judge. Let's listen in.

LEAHY: There is only one person who can nominate someone to the Supreme Court. That person is going to affect 300 million Americans but only 100 of us get to vote. That process would begin now.

Solicitor General, please stand and raise your right hand.

Do you solemnly swear the testimony you're about to give in this matter shall be the truth, the nothing but the truth, so help you God?

ELENA KAGAN, SOLICITOR GENERAL OF THE UNITED STATES AND SUPREME COURT NOMINEE: I do.

LEAHY: Thank you. Please be seated.

Solicitor General Kagan, I know you have an opening statement, and I will -- now the floor is yours.

KAGAN: Thank you very much, Mr. Chairman, Senator Sessions and members of the committee.

I'd like to thank Senators Kerry and Brown for those generous introductions.

I also want to thank the president again for nominating me to this position. I'm honored and humbled by his confidence.

Let me also thank all the members of the committee as well as many other senators for meeting with me in these last several weeks.

I've discovered that they call these courtesy visits for a reason. Each of you has been unfailingly gracious and considerate.

I know that we gather here on a day of sorrow for all of you, for this body and for our nation with the passing of Senator Byrd. I did not know him personally, as all of you did. But I certainly knew of his great love for this institution, his faithful service to the people of his state, and his abiding reverence for our Constitution, a copy of which he carried with him every day, a moving reminder to each of us who serves in government of the ideals we must seek to fulfill. All of you and all of Senator Byrd's family and friends are in my thoughts and prayers at this time.

I would like to begin by thanking my family, friends and students who are here with me today. I thank them for all the support they've given me during this process and throughout my life. It's really wonderful to have so many of them behind me.

I said when the president nominated me, that the two people missing were my parents. And I feel that deeply again today. My father was as generous and public spirited a person as I've ever known. And my mother set the standard for determination, courage and commitment to learning.

My parents lived the American dream. They grew up in immigrant communities. My mother didn't speak a word of English until she went to school. But she became a legendary teacher, and my father a valued lawyer. And they taught me and my two brothers, both high school teachers, that this is the greatest of all countries because of the freedoms and opportunities it offers its people. I know that they would have felt that today, and I pray that they would have been proud of what they did in raising me and my brothers.

To be nominated to the Supreme Court is the honor of a lifetime. I'm only sorry that, if confirmed, I won't have the privilege of serving there with Justice John Paul Stevens. His integrity, humility, and independence, his deep devotion to the court and his profound commitment to rule of law -- all of these qualities are models for everyone who wears or hopes to wear a judge's robe. If given this honor, I hope I will approach each case with his trademark, care and consideration. That means listening to each party with a mind as open as his to learning and persuasion and striving as conscientiously as he has to render impartial justice.

I owe a debt of gratitude to two other living justices. Sandra Day O'Connor and Ruth Bader Ginsburg paved the way for me and so many other women in my generation. Their pioneering lives have created boundless possibilities for women in the law. I thank them for their inspiration and also for the personal kindnesses they have shown me.

And my heart goes out to Justice Ginsberg and her family today. Everyone who ever met Marty Ginsberg was enriched by his incredible warmth and humor and generosity, and I'm deeply saddened by his passing.

Mr. Chairman, the law school I had the good fortune to lead has a kind of motto spoken each year at graduation. We tell the new graduates that they are ready to enter a profession devoted to those wise restraints that make us free. That phrase has always captured for me the way law and the rule of law matters. What the rule of law does is nothing less than to secure for each of us what our Constitution calls the blessings of liberty, those rights and freedoms, that promise of equality that have defined this nation since its founding. And what the Supreme Court does is to safeguard the rule of law through a commitment to even-handedness, principle and restraint.

My first real exposure to the court came almost a quarter century ago when I began my clerkship with Justice Thurgood Marshall. Justice Marshall revered the court, and for a simple reason. In his life, in his great struggle for racial justice, the Supreme Court stood as the part of government that was most open to every American and that most often fulfilled our Constitution's promise of treating all persons with equal respect, equal care and equal attention.

The idea is engraved on the very face of the Supreme Court building, "Equal Justice Under Law." It means that everyone who comes before the court, regardless of wealth or power or station, receives the same process and the same protections. What this commands of judges is even-handedness and impartiality. What it promises is nothing less than a fair shake for every American.

I've seen that promise up close during my tenure as solicitor general. In that job, I serve as our government's chief lawyer before the Supreme Court, arguing cases on issues ranging from campaign finance to criminal law to national security. And I do mean argue.

In no other place I know is the strength of a person's position so tested and the quality of a person's analysis so deeply probed. No matter who the lawyer or who the client, the court relentlessly hones in the merits of every claim and its support in law and precedent. And because this is so, I always come away from my arguments at the court with a renewed appreciation of the commitment of each justice to reason and principle, a commitment that defines what it means to live in a nation under law.

For these reasons, the Supreme Court is a wondrous institution.

But the time I spent in the other branches of government remind me that it must also be a modest one, properly differential to the decisions of the American people and their elected -