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The Situation Room

Inside Elena Kagan's Experience; Senators Judge High Court Choice

Aired May 10, 2010 - 17:00   ET

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

WOLF BLITZER, ANCHOR: Rick, thank you. The case for and against the president's new Supreme Court nominee, the Solicitor General, Elena Kagan. What, if anything, could hurt her chances of confirmation? This hour, Kagan's record, her personal history and reaction from the senators who will be judging her.

Also a new proposal to send off environmental disaster, fend it off, with garage. Following the new idea, trying to plug that gushing oil spill in the gulf after a giant dome failed to do the trick.

And stock prices skyrocket days after a sudden nosedive. Wall Street trader celebrating Europe's trillion dollar rescue plan, but will the enthusiasm last?

I'm Wolf Blitzer. You're in THE SITUATION ROOM.

President Obama today introduced his new Supreme Court nominee, Elena Kagan as a trailblazing leader. He spoke a lot about her biography including her work as solicitor general and as the first woman dean of Harvard Law School. As you'd expect, no talk of her ideology, but the president made a point of describing his choice to replace the moderate Justice John Paul Stevens as fair-minded and a consensus- builder.

(BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: Because she believes, as I do, that exposure to a broad array of perspectives is the foundation not just for a sound legal education but a very successful life in the law. And this appreciation for diverse views may also come in handy as a diehard Mets' fan serving alongside her new colleague, Yankees' fan Justice Sotamayor who I believe has order a pinstriped robe for the occasion.

(END VIDEO CLIP)

BLITZER: Kagan went on to talk about there's something she shares with the president and Justice Stevens, a passion for the law.

(BEGIN VIDEO CLIP)

ELENA KAGAN, SUPREME COURT NOMINEE: I've had the simple joy of teaching, of trying to communicate to students why I so love the law not just because it's challenging and endlessly interesting, although it certainly is that, but because law matters, because it keeps us safe, because it protects our most fundamental rights and freedoms, and because it is the foundation of our democracy.

(END VIDEO CLIP)

BLITZER: Will Elena Kagan be everything President Obama hopes she'll be? A piece of his legacy certainly is at stake as Kagan faces hearings on her confirmation to become the third woman on the U.S. Supreme Court, the current Supreme Court. The fourth female justice in history.

Our Senior Congressional correspondent, Dana Bash is standing by. She's got reaction from the senators deciding her fate. Let's go to CNN's Mary Snow for more on Kagan's background.

All right, Mary. What are you finding?

MARY SNOW, CNN CORRESPONDENT: Well, Wolf, take a look at her personal history. Elena Kagan is a native New Yorker and among those who know her, there were early signs she was destined for something big.

(BEGIN VIDEOTAPE)

SNOW (voice-over): Even in her senior year of high school, Elena Kagan posed in a judge's robe with a gavel. Ellen took that picture isn't surprised her former New York City classmate was tapped to become a member of the highest court in the United States. Next to Kagan's yearbook photo, a quote from former Supreme Court Justice Felix Frankfurter reading, government in itself is an art, of one of the subtlest of arts.

ELLEN PURTELL, FORMER KAGAN CLASSMATE: There are always those people that want to be the class president or be the student organization president and make the place better for everybody. And she was one of those people.

SNOW: More than three decades later, Kagan's two brothers, who are both New York City high school teachers were at the White House for her Supreme Court nomination.

KAGAN: If this day has just a touch of sadness in it for me, it is because my parents aren't here to share it.

SNOW: Kagan's father was lawyer. Her mother a schoolteacher. A long time friend who went to law school with her credits Kagan's parents was giving her a sense of purpose. He says from a young age, she's had a judicial temperament.

JOHN BARRETT, KAGAN'S FRIEND: She's a listener, a reader and thinker. She is a person who engages and always had a broad spectrum of friends, of colleagues of interest, and has always been very popular and successful across a wide range.

SNOW: And because Kagan has never been a judge, it's unclear where she stands on major issues. Her undergraduate days at Princeton where she was a newspaper editor are being scrutinized. Professor Sean Wilentz was Kagan's thesis adviser at Princeton. He's been fielding questions about her these thesis. It examines socialism in New York City from the 1900s to 1933.

PROFESSOR SEAN WILENTZ, PRINCETON UNIVERSITY: It can fuse something and people were not strong to realize this because you study something does not mean that you endorse that thing. You're trying to figure out a large historical process.

SNOW: At Harvard Law School, where she was dean before becoming Solicitor General under the Obama administration, both students and faculty cheered the news of her nomination. They describe her as someone who built bridges during her time there, but she also took a stand. She did not allow military recruiters on campus because of the military's don't ask, don't tell policy.

BARRETT: Elena, I think, cares deeply about non-discrimination and she cares deeply about national service.

SNOW: So far, friends and colleagues describe her as open-minded and fair and a good potential fit for the bench.

(END VIDEOTAPE)

SNOW: And, Wolf, if Kagan is confirmed, it means that all three female Supreme Court justices are from New York - Wolf.

BLITZER: Thanks very much. Mary Snow is in New York watching the story.

As Solicitor General, Elena Kagan is the top lawyer for the Obama administration. How hard will she have to defend - how hard will it be for to defend herself when she faces the Senate confirmation hearings?

Let's go to Capitol Hill. Our Senior Congressional correspondent, Dana Bash is getting some early reaction from Democrats and Republicans. Dana, what are you finding out?

DANA BASH, CNN SENIOR CONGRESSION CORRESPONDENT: Well, Wolf, it was just last year that Elena Kagan was actually approved for that position as solicitor general. She was approved 61-31. Seven Republicans voted for her, but in talking to senators today, many of them told us that they can't be counted on for that again.

Because voting for somebody who is a political appointee for the president is very different from a lifetime appointment to the Supreme Court especially for somebody with no judicial experience.

(BEGIN VIDEOTAPE)

BASH (voice-over): The most common concern from senators who will decide Elena Kagan's fate, the unknown.

SENATOR JON KYL, (R) JUDICIARY COMMITTEE: The lack of experience is a problem. It's also helpful to her confirmation, because there's not a long paper trail of things she's written than might be controversial.

BASH: Ironically one of Kagan's few academic articles was in 1995 about the Supreme Court confirmation process, which she mocked as a charade, because nominees on the left and right refused to answer substantive questions.

When the Senate seizes to engage nominees in meaningful discussions of legal issues, wrote Kagan, the confirmation process takes on an air of promiscuity and farce. Republicans now say, they plan to hold Kagan to her own standard.

SENATOR JEFF SESSIONS, (R) JUDICIARY COMMITTEE: She was very aggressive in saying that judges should speak out on specific cases and issues.

BASH: But they may not have much luck. Kagan already backed away from her argument during her hearings last year for solicitor general.

KAGAN: I'm not sure that sitting here today I would agree with that statement.

BASH (on camera): Her paper trail may be short, but Elena Kagan did take a position while dean at Harvard Law that Republicans are zeroing in on. She tried to block military recruiters from campus because of the Pentagon's don't ask, don't tell policy towards gays, which she called a moral injustice of the first order.

BASH (voice-over): GOP Senator Jon Kyl accused her of this.

KYL: Advancing a gay rights agenda over the Congress' law. So that raises the question whether her own personal beliefs there would interfere with the decision that she might make.

BASH: And the top Republican on the Senate Judiciary Committee calls Kagan's position out of touch with reality.

SESSIONS: I think she made a big mistake. Does that disqualify? I don't know. We'll see. But it's a significant issue.

BASH: But the Democratic chairman down played the controversy.

SENATOR PATRICK LEAHY, (D) JUDICIARY CHAIRMAN: She did -- come on and say, suspect there were plenty of recruiting officers close by the campus.

(END VIDEOTAPE)

BASH: That Senator Leahy said that Kagan is being nominated for the Supreme Court. Not for secretary of defense and he insisted that she will be impartial towards the military or anybody else.

And, Wolf, despite Republicans' concerns, the number two Republican, the one in charge of counting votes, Jon Kyl, he told me today that he does not think that there will be a Republican filibuster to try to block Kagan's nomination. He said that's unlikely, because she is "nominally qualified."

BLITZER: Filibuster, she'll need 51 votes in order to be confirmed. We know there are, what, 59 Democrats, if you count the two independents. Dana, lots more coming up on Elena Kagan.

David Axelrod, the president's senior adviser will be joining us as well.

Now that the first plans for containing that growing oil slick in the Gulf of Mexico has all but failed, what's it going to take to stop the rig from gushing? We'll have the latest plan of attack. Stand by.

And the Afghan president, Hamid Karzai heads to Washington for a meeting with President Obama this week. Some say the relationship between the two countries is strained, others say it's stronger than ever.

She's a legendary journalist. Now Barbara Walters is preparing for heart surgery. We're going to tell you why.

(COMMERCIAL BREAK)

BLITZER: Right to Jack for the "Cafferty File." Jack --

JACK CAFFERTY: Wolf, in Boston, they threw the tea into the harbor. This time around, they're throwing incumbents into the street. It's a wonderful thing. Utah has become the first state to oust an incumbent this year. Three-term Republican Senator Bob Bennett lost to more Conservative candidates in the second round of battling at the state party convention.

It is the first time since 1940 that an incumbent senator in Utah has failed to get his party's nomination. Bennett was a powerful, likable senator, but it wasn't enough this time around. If anything, Republicans in Utah seem to be turned off by his seniority. And vented himself acknowledged what he called the toxic political atmosphere.

The country is in an anti-incumbent rage. It's about time and Bennett's loss might be an ominous warning sign for other incumbents. We can only hope, right? National polls show deep-seated unrest and discontent with Washington and other incumbents around the country are starting to feel the heat as well.

In Iowa, long time Republican Senator Charles Grassley's in trouble. He still barely ahead, but has dropped 20 points in a hypothetical matchup against his Democratic opponent. In Pennsylvania, Republican turned Democrat turned turncoat Arlen Specter, the state's longest serving senator, may finally be shown the door as well. His lead over his primary challenger is evaporating

The Pennsylvania district held by the late Democratic Congressman John Murtha is in jeopardy of going to a Republican for the first time in 35 years. It's all good. Ironically, like the first one, this revolution also began in Massachusetts with the election of Republican to fill the senate seat of the late Ted Kennedy. Just shocking. But good.

Here's the question -- what message does Utah Senator Bob Bennett's loss send to other incumbents? Go to cnn.com/caffertyfile, post a comment on my blog. I say we ought to vote every incumbent out of office five years. Maybe this time they'll do it.

BLITZER: I think that was one of the first questions you raised in "The Cafferty File." And we're getting ready in August for our fifth anniversary. Jack, you might be right.

CAFFERTY: Are we going to have a cake or anything?

BLITZER: Maybe not a cake, but maybe cupcakes.

CAFFERTY: Come on. Cupcakes.

BLITZER: Jack, see you. Thank you.

Elena Kagan will make history in a number of ways if and when she becomes a United States Supreme Court justice. If the president's new nominee is confirmed, there will then be three Jewish justices and six Catholics on the court, and for the first time ever, there would not be any Protestants on the nation's highest court.

Let's discuss this and more with our Senior Political analyst, Gloria Bourger and David Gergen. David's a Harvard where Kagan got her law degree, later served as the Dean of the Harvard Law School.

And David, I know you know her, for many years. On this issue of religion, is it a big or little deal there won't be any Protestants on the court if she's confirmed?

DAVID GERGEN, CNN SENIOR POLITICAL ANALYST: Well, 30 years ago it would have been a big deal, Wolf. As you know, historically the court has been a Protestant readout and over time there was a Jewish seat, like Louis Brandeis and others, and Catholic seat and the likes.

That was at a time when your religion identified you. And I think it's a milestone in the country's history that religion has now been trumped in our day by gender. It's been much more important, I think, to most people that Elena Kagan will be the third woman on the court. Far more important than what her religion is.

BLITZER: It will be a very diverse court, as we point out, David, because there not only be Yale Law School graduates, but there will be Harvard Law School graduates as well. All justices either went to Harvard or Yale Law School.

GERGEN: I think that's also a remarkable thing and I'm not sure that's wise, by the way. Six of them went to the Harvard Law School, including Elena Kagan. Three went to Yale. One, Ruth Bader Ginsburg, stayed at Harvard, then went on to Columbia to complete her legal education. But that does not mean, Wolf, that there will be nine Ivy League law school graduates on the court, and from that point of view, I don't think that's enough diversity. I think many would like to see broader reach. Very good law schools. I'm proud both of them, even so, I think that's less diversity than we like over time.

BLITZER: Spoken by someone who went to -- I believe Duke Law School, is that right?

GERGEN: No, I went to Harvard.

BLITZER: Went to Duke undergraduate.

GERGEN: No, I went to Yale undergraduate.

BLITZER: You did. Never mind.

GERGEN: So my loyalty --

BLITZER: Not exactly someone from the heartland.

GERGEN: No. But that's why I think -- I don't think these Ivy schools have a monopoly in wisdom. There are a lot of other good schools around the country.

BLITZER: Gloria, let me read to you something she wrote way back when on the confirmation mess, because these words will no doubt come back to haunt her during her confirmation hearings right now. She was saying that the Supreme Court confirmation process should be like Robert Bork's were, remember how feisty and how much he was willing to express his own personal views.

Subsequent hearings, she later wrote, are presented to the public a vapid and hollow charade, in which repetition of platitudes has replaced discussion of view points and personal anecdotes of supplanted legal analysis. Those words were come back to haunt her.

GLORIA BORGER, SENIOR POLITICAL ANALYST: They will. Those of us who have covered the Supreme Court hearings have sympathy for what she wrote. As you know, after the Borque hearing, the nominees have basically said, I agree with legal precedent and refuse to answer many substantive questions.

So now that she has written this and I will tell you, Wolf, that in the rest of the piece she said that these kinds of hearings just reinforce the kind cynicism we have in this country about the confirmation process. But already Republicans are talking about what they call the Kagan standard, which Dana Bash mentioned earlier.

It's very clear from talking to these Republicans and looking at their press releases today, they are going to hold her to that standard, and try and push her. But already, during her confirmation process, as solicitor general, we've seen she's kind of backed off this and said that was when I was younger. When I was a staffer on the Judiciary Committee.

Remember, Joe Biden put her on the Judiciary Committee to help with the Ginsburg confirmation process, and I was a little bit frustrated then.

BLITZER: You were over at the White House today.

BORGER: I was.

BLITZER: Is there any area that their nervous about that could come up? BORGER: Well, you know, it's very clear that you're going to be talking about the Harvard issue and the question of taking those military recruiters off of the Harvard campus, which she was then forced to put back after a legal decision, and I think that's something Republicans are going to pursue.

They're also clearly going to pursue this. When I asked David Axelrod, a Senior Adviser to the president today, about this so-called Kagan standard, he said, funny, but Conservatives weren't complaining about this, weren't articulating the Kagan standard when we had Justices Alito up for confirmation and Roberts up for confirmation. So clearly, they are starting to back away from that.

BLITZER: He's going to be here in the "Situation Room," David Axelrod. Quickly, David, the whole issue of not allowing the U.S. military to recruit on campus. You've been there at Harvard for a long time. Is the Supreme Court unanimously saying she was wrong?

GERGEN: Well, Wolf, first of all, an excellent dean here at the law school. So Charles, a solicitor general under President Reagan, a strong conservative mind harks written very glowingly about her time, and broadening the spectrum on the Harvard light and took a left- leaning law school and did strengthen the faculty including strong conservative hire.

So she was widely acclaimed by faculty and students alike. On this issue, it's hard to convey to people how toxic on many college campuses the military standard of don't ask, don't tell is. Once we get rid of that, then the military's going to be welcomed, I think, on these campuses.

Until then, this issue is, is much more of a stumbling block on inviting in military r recruiters. She stood up for principle but had to compromise in some ways to prevent the university from losing tons of money. That's when Larry Sommers was president.

BLITZER: David Gergen, thanks very much. Gloria Borger, thanks to you as well.

On Wall Street, traders put last week's flash crash behind them. Stock prices soaring at the closing bell. We're taking a closer look at what's driving the rally and whether the problem behind last week's nosedive has now been solved.

And why this is proving to be one of the deadliest days in Iraq in a long time.

(COMMERCIAL BREAK)

BLITZER: Lisa Silvester is monitoring some of the other top stories in "The Situation Room" right now. Lisa, what's going on?

LISA SYLVESTER: Hi, there, Wolf. Despite ups and downs, the U.S./Afghan relationship is as strong as it's been. So says U.S. ambassador to Afghanistan, Carl Ikenbery, ahead of Afghan's President Hamid Karzai's arrival in Washington for a four-day visit. He'll meet with President Obama this week in the midst of what has been a tense relationship between the two countries.

Defeated British Prime Minister Gordon Brown could soon be stepping down from office. Mr. Brown wants his Labour party to form an alliance with the Liberal Democrats. He says if this happens, he'll step aside. The move could clear the way for a deal that would keep his party in power despite last week's election where no one party came away with the majority.

At least 72 people are dead and hundreds wounded after a series of coordinated attacks across Iraq. The attacks were launched in six provinces as well as cities including Baghdad, Mosul and Fallujah. Today is one of Iraq's deadliest days in months, and so far no claim of responsibility, but al Qaeda is suspected - Wolf.

BLITZER: Thanks very much, Lisa. We're going to get back to you.

A giant dome failed to stop the oil that's spewing in the Gulf of Mexico. Will a smaller dome do any better?

And some are calling it, wild street. We're referring to Wall Street. The Dow soaring just days after a sudden and steep plunge, and we'll remember Lena Horne. The singer, the actress and the civil rights activist.

(COMMERCIAL BREAK)

BLITZER: You're in the THE SITUATION ROOM -- happening now - it's an American right to remain silent, but in the wake of the failed bombing in New York's Times Square, should those same Miranda rights apply to terror suspects?

As that massive oil slick grows in the Gulf of Mexico with no apparent end in sight, is the Obama administration standing by its commitment to expanding offshore oil drilling? I'll ask one of the president's top advisers, David Axelrod.>

I'm Wolf Blitzer. You're in "The Situation Room."

Wall Street traders ending on a high. The Dow Jones Industrial with 400 points at the closing bell. Quite a turnaround from two days ago when the Dow nosedived. Today investors cheered Europe's approval of a nearly $1 trillion economic rescue plan.

Let's bring in our Chief Economic correspondent, Ali Velshi who's got more on this story for us. This new European rescue plan I assume is what drove up Wall Street today?

ALI VELSHI, CHIEF ECONOMIC CORRESPONDENT: Yes. Other than the glitch on Thursday in the market, that's what's been driving the market down for a while. The fact that it's not just Greece, but it will spread to Portugal and Ireland, and Spain, in Italy, that's what has been pressuring the market. So this bail out, if you want to call it, for lack of a better term, has really spurred markets. I'll tell you, Wolf, unlike the U.S. bailout in September and October of 2008, this one is much bigger, because the European Union is a bigger economy than the United States, and we were bailing out banks and financial institutions. This arrangement is bailing out countries.

WOLF BLITZER, CNN ANCHOR: It really recovered 400 points, almost half of what they lost over the past couple weeks. Are investigators any closer to learning what happened with that supposed technical glitch?

VELSHI: Yeah.

BLITZER: On Thursday when the market dropped nearly 1,000 points?

VELSHI: They are. In such a short period of time it dropped. They are a little closer. What it seems to be, detail we have now. They'll about hearing tomorrow. They're continuing to figure what happened. It doesn't look like it was human error or fat fingers as was rumored Thursday. It does appear what happened is that this crisis, the Greek debt crisis, started accelerating losses and the different exchanges dealt with these losses differently and what happened is when there weren't traders around to buy and sell stocks because the New York stock exchange slowed trading down, computerized trading systems really accelerated to selling and they misread how much people were prepared to bid for stocks. The computers were reading zero bids on stocks and sending the prices down. So it looks like this just may be a technology versus man issue. That's preliminary at the moment but that's what it looks like. You know, 15 years ago, Wolf, you wanted to bay stock of Proctor & Gamble you had to buy it through the New York stock exchange. Now you can buy them on half a dozen exchanges, most of which are run electronically and don't have sober second thoughts when things are going through a computer.

BLITZER: During those 20 or 40 minutes or whatever when the stock market was going crazy, some stocks going for $30 went down to 3 cents or 4 cents.

VELSHI: Accenture went to a penny. The reason why this is taking so long to figure out, which is worrisome, by the way, they're going through thousands and thousands of trades to figure out who triggered what. What it was a handful of stocks? It was about 200 stocks. Why a limited number, why not other things? It seems the computerized system accelerated the rush. Whereas, humans trading, they would have said hold on. Something's wrong. That stock shouldn't be a cent. It was $40 three minutes ago. That looks like where they're focusing their attention.

BLITZER: Thank you, Ali. Good explanation.

Let's get to the massive oil spill now in the Gulf of Mexico. The race is on to come up way plan b or a plan c after a giant dome simply failed to cap the leak. One unusual option on the table, shooting garage into a gaping hole in the well to try to plug it up, but before they resort to what's being called the junk shot, BP energy executives plan to try something else. Let's go to CNN's David Mattingly covering the story from Louisiana. What else is going on over there? Because it does not look good, David.

DAVID MATTINGLY, CNN CORRESPONDENT: Wolf, this latest attempt to stem the flow of oil at the bottom of the Gulf of Mexico comes in the form of a device called a top hat. This top hat according to BP officials is actually a smaller containment dome, a fraction of the size of the one we were, they were attempting to use earlier. That dome was rendered useless when it filled up with crystals formed by gas and water. This dome, they say, because of its smaller size and they're going to deploy it in a different way, should be able to avoid those crystals and should be able to get in place where it could siphon off a large fraction of that oil that's now leaking into the gulf.

Now, while they're working on that, that should be in place by the end of this week. While that is going on, they're also working on that thing you were talking about called the junk shot. That's exactly what it sounds like. They're going to be injecting liquids and solid material into the piping system they have down there to essentially clog it up, to shut off the flow of oil completely. So once they are able to do that, and they expect to have that into place to try it in about ten days to two weeks, if that is successful, they will have stopped the flow of oil into the Gulf of Mexico. But this latest setback is costing us about a week, and every day so far we're seeing another estimated 5,000 barrels of oil going into the gulf. Wolf?

BLITZER: Is there concern that the spill may be shifting?

MATTINGLY: There is concern that it is shifting to the west, riding some of those winds in a westerly direction past the mouth of the gulf of -- past the mouth of the Mississippi River. And. If that happens, it is going to start hitting more barrier islands, it's going to be getting into some more fishing areas, ruining the chances of a good fishing season for even more fisherman and possibly ruining fishing seasons to come. This is a disaster that's already hitting the shores of Louisiana. As it moves west it has the opportunity to make this even worse. Wolf?

BLITZER: That four-story cap or dome they hoped would stop it, is that just going to sit at the bottom of the Gulf of Mexico right now? Or will they raise it, do something with it?

MATTINGLY: They don't have any plans to raise it right now. Right now it's useless to them. They set it aside. They're going to try something new. No point in wasting time trying to bring it up right now. Nothing discussed what's going to happen to it in the future, but they built that for a very specific job and it didn't work. It's just going to sit there while they attempt something else.

BLITZER: David Mattingly in Venice, Louisiana, for us. Good luck to all the folks who are working this disaster for us.

President Obama got a special briefing at the white house situation room today on this oil spill. He met with several cabinet members, senior officials including the homeland security Janet Napolitano and interior secretary Ken Salazar. They released this from their situation room.

Some incumbents more anxious than ever after Republican Senator Bob Bennett was prevented by his own party from seeking a fourth term. Donna Brazile and Ed Gillespie are here. Our strategy session is coming up. And Barbara Walters reveals her plans for surgery. Why she's heading to the operating table.

And detained in Iran since last summer. Now those jailed American hikers reportedly have at least something, a little something, to be happy about.

(COMMERCIAL BREAK)

BLITZER: Let's get back to Lisa. She's monitoring some of the other top stories in THE SITUATION ROOM right now. What do you have Lisa?

LISA SYLVESTER, CNN CORRESPONDENT: Hi, Wolf. There's a new reason for fliers in and out of Europe to fear more chaos. Just after the volcanic ash crisis, cabinet crew members at British Airways are threatening to strike for 20 days this month and next. Their loss in a bitter dispute with the airline over pay and working conditions. British Air turned down a new offer by the cabin crews' union this weekend.

A new report from Iran today the three American hikers arrested in July will be visited by their families in a Tehran prison. The Iranian state television channel press TV didn't say how it got the information about the visits, but the American's families have been told before they would be granted visas to visit only later to find out they did not have permission.

And journalist Barbara Walters will undergo heart surgery this week. The co-host of the hit ABC talk show "The View" announced on the show this morning she needs to have a faulty valve replaced. She's been aware of the condition for a while, she says. The 80-year-old Walters expects to be away from the show for one to three months. Wolf, we wish her all the best.

BLITZER: We certainly do. Get well soon, Barbara, because we'll miss you. But good luck with the surgery. Thanks very much, Lisa, for that.

He's being called the first incumbent to fall victim to a growing anti-Washington sentiment. Now that Utah Republican Bob Bennett has been eliminated from the race for a fourth term in the Senate, should other Republicans and Democrats be worried?

And it's a basic right, the right to remain silent. In the aftermath of that thwarted Times Square attack, should Miranda rights for terrorist suspects be changed? That story coming up as well.

(COMMERCIAL BREAK)

BLITZER: Get to our strategy session right now. Joining us, our CNN political contributor, the Democratic strategist Donna Brazile and the Republican strategist Ed Gillespie. He's also former counselor to President George W. Bush. Robert Bennett, the longtime senator from Utah, arguably one of the most conservative senators in the Senate, not conservative, apparently enough for a lot of Republicans out in Utah. He's out. What happened? ED GILLESPIE, REPUBLICAN STRATEGIST: I think there's a number of factors there, Wolf. Senator Bennett is somebody respected on both sides of the aisle. A very good man.

BLITZER: You know him personally?

GILLESPIE: I do, and like him, but the primary voters especially caucus goers and Utah is unique in terms of he can't go on to compete in a primary. He lost in the caucus, a rare state where you can't still go on to compete, and the fact is that I think Senator Bennett was harmed as much, not so much by conservative voting record. He vowed to serve only two terms, a voluntary two-term limit. He was going for his fourth term. I think that caught up with him.

BLITZER: Was that a big thing or the T.A.R.P.?

GILLESPIE: The T.A.R.P. was a big factor as well. The key about Utah, we have vigorous primaries in the Republican Party going on right now as there are in the Democratic primary party. The question is what happens in the general? The fact is, in Utah, in 2010, our nominee and we still have a primary going on now between two contestants on the Republican side, whomever emerges there, odds on favorite to be --

BLITZER: What lessons should Democrats, especially Washington types, incumbents, learn from the Robert Bennett experience in Utah?

DONNA BRAZILE, DEMOCRATIC STRATEGIST: Don't take your base for granted. Clearly, with the caucus process you have to go out there and find the most energized, the most active of voters to support you. The fact that Senator Bennett could not get a majority of the votes in that caucus shows you that he was out of touch. He is one of the most conservative senators, ranked 23rd out of 30 by the National Journal. He's nor conservative than Orrin Hatch. I don't think it's about his voting record. I think it's more about the fact that these activists want someone now that is not from Washington, D.C. representing them.

BLITZER: Especially someone who, in fact, from time to time is willing to show an indication to work with the other party, and Robert Bennett certainly has been willing to work with some of the Democratic colleagues. Here's some interesting poll numbers. Put your hat on as a former Republican Party chairman, Ed. In Florida right now, Charlie Crist, who's now running as an independent in a three-man race. We assume it's going to be a three man race. This Mason Dixon poll, which you're familiar with. Florida likely voters, Crist with 38%. Marco Rubio, 3 %. Kendrick Meek, the likely Democrat, 19%. Charlie Crist ahead. Is he going to win in a three-man contest?

GILLESPIE: I would be shocked if Charlie Crist wins the general election come November, Wolf. The fact is, third party candidates or independent candidates tend to be strongest at the beginning. Over time, people make a determination.

BLITZER: Lieberman won.

GILLESPIE: He did, but I'd be surprised if Florida goes with Charlie Crist at end of the day. This contest is coming down to Congressman Kendrick Meek and Marco Rubio, the former Florida house speaker. At the end the day, Rubio wins the race because of the environment right now being very strong and positive for Republicans and I suspect you'll see the numbers change over the course of the next six months.

BLITZER: The likely Democratic candidate, Kendrick Meek, only 19%. That's not encouraging from your perspective.

BRAZILE: Wolf, what are we talking about most days? We talk about Charlie Crist. We've been talking Republicans the last three months, because they were in a very contested primary. Right now Charlie Crist is getting a lot of support from Democrats. Kendrick Meek is not known by the majority of Florida Democrats. Once the Democratic primary is over, we have a primary on the Democratic side, I believe that Kendrick Meek will be well positioned to win this race. The reason why, voters want to go forward, not back. Rubio represents the past. He doesn't represent the future.

BLITZER: Quickly, you've been involved in getting Supreme Court nominees, Republican Supreme Court nominees through the confirmation process. You see any serious problems that Elena Kagan can anticipate?

GILLESPIE: I think she's has a lot of questions to answer, Wolf. There's a pretty thin rule in terms of trying to discern, because she doesn't have previous rulings. She's not served on the bench and so there's not much to look through there. The brief, she filed in Harvard to get the recruiters off campus. That's obviously going to be the source anode focus of a lot of questions, but there area other questions as well. Determinations she made as solicitor general, some of her academic writings. It's too early to tell. These things go through a lot of twists and turns.

BLITZER: Three for President Bush.

GILLESPIE: Exactly right.

BLITZER: Eventually her nomination withdrawn, if you remember.

BRAZILE: Remember the top notch lawyer that's smart, she is very well prepared to be the third female Supreme Court, and I'm excited about this nomination.

BLITZER: I know you are. I can tell.

BRAZILE: I can dance, but I'll hold that until she confirmed.

BLITZER: You promise?

BRAZILE: I can dance.

BLITZER: You'll be dancing here.

BRAZILE: Kagan is very smart, well respected by both sides of the aisle. I look forward to this.

GILLESPIE: Suspect that Kagan will be doing tap dancing in the hearings herself.

BLITZER: You're basing a piece of advice for her, try to avoid any sensitive subjects without giving your personal opinions?

GILLESPIE: Her own advice, ask tough questions and try to get people to give candid answers. See if she abides by it.

BRAZILE: My advice is to go and meet with the 100 senators, get to know them well and be prepared for a tough hearing. She will get through ir.

BLITZER: We'll have wall to wall coverage. No doubt.

BRAZILE: Absolutely.

BLITZER: Thanks very much.

Jack Cafferty is standing by with your e-mail and also at that massive oil spill expands across the gulf coast, does the Obama administration remain committed to offshore oil drilling? I'll ask one of the president's top advisers, David Axelrod.

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BLITZER: Jack joining us once again with the Cafferty file. Jack?

JACK CAFFERTY, CNN CORRESPONDENT: The question this hour is what message does Utah Senator Bob Bennett's loss send to other incumbents?

George writes from Illinois, "The upcoming elections will be like cleaning out your garage. You get rid of the obvious junk, and then you get rid of half the junk that you have doubts about. And then what's left you but back in the garage and throw that out next time and regret that you didn't get rid of it all the first time around. In the end, you feel better."

Larry in Ohio writes, "The message is if you don't listen to the public, the public will pink slip you and get someone in office who will, and party no longer matters."

Steve says, "It would seem the polarization will get worse. Everything I've read about Bennett indicated he's willing to work for the good of his state through many different administrations. When compromise and bipartisanship become a no-no to the fringes, and I mean either side, then there is big trouble brewing."

Gary in Washington, "Democrat or Republican, it doesn't seem to matter. Finally, finally, it seems the American public is, if nothing more than just opening a sleepy-eye to swat at an annoying fly disturbing its deep slumber finally acknowledging the people we send to Washington are there doing what we want them to do for us and for our country, instead of for themselves, their pacts and those with the biggest checkbooks."

Albert writes, "We're talking about Utah here, Jack. Let's not read anything into this more than white radical reactionary religious right wingers having a fit over a black person being president."

Andrea writes from Arizona, "The message it sends is that Americans want term limits for Congress. Two terms ought to be all that's allowed. It gets them back in the private sector to see what we all are dealing with. Who is going to write that law? It doesn't matter what party you're with, they're there too long and we're not better for it."

And Arlene in Illinois writes, "The trouble with incumbents is they think their job is like the Supreme Court, a lifetime appointment. Well guess again, brother or sister, I guess."

If you want to read more on this, go to my blog CNN.com/Caffertyfile. Wolf?

BLITZER: Will do, Jack. Thank you.

The legendary entertainer Lena Horne has died at the age of 92. The actress, singer and dancer transformed Hollywood for African Americans back in 1942 when she signed a long term contract with a major film studio, MGM. She described what that experience was like.

LENA HORNE: I think the black boy that cleaned the shoes and me were the only two black people there, except for maids that were working for the stars, you know. And it was very lonely. And I wasn't very happy. But I'm grateful, because they gave me the name.

BLITZER: But it was singing that fueled Horne's Grammy and Tony- winning career when she could no longer get many major movie roles. We remember her with a look back at one of her most popular songs, "Stormy Weather."

Lena Horne was 92 years old. What an amazing, amazing talent.

Just ahead, she's President Obama's choice to be the next Supreme Court justice. Also, we're showing you what she would be like in a Supreme Court setting, in her own words.

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BLITZER: All right. There's some significant tornado warnings just coming in. Let's check in with Chad Myers to see what's going on. What's going on, Chad?

CHAD MYERS, AMS METEOROLOGIST: Wolf for big towns now, Oklahoma City, we had a tornado on the ground just west of Yukon, Oklahoma. That's west of Oklahoma City proper. And these storms are moving into Oklahoma City. So all of Canadian county, Oklahoma county, maybe even up toward Guthrie and Edmond, you need to be taking cover now inside the home, into the smallest room that you have. Also, sirens going off in Wichita, Kansas. Tornado confirmed on the ground southwest of your city, been on the ground a long time and headed into Wichita proper. There have at least four significant tornado warnings, which means storms that are putting down tornados on the ground right now throughout Kansas and Oklahoma and Tulsa, Oklahoma City, you are in for it for the rest of the night. We'll keep you advised. BLITZER: We'll watch with you, Chad. Thanks very much.