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President Obama Names Supreme Court Nominee

Aired May 10, 2010 - 19:00   ET


JOHN KING, HOST: Thanks, Wolf. A busy hour ahead including a candid conversation with the defense secretary about wasteful spending, gays in the military, and this question --


KING: How many Faisal Shahzad's might there be in the United States?


KING: But we begin with another question -- just who is Elena Kagan? It is an important question in any event. She's the president's choice for a vacancy on the Supreme Court. And on issues ranging from abortion and gay rights to gun control and terrorism, the court faces big decisions that could affect the country and you in profound ways.

But it is an even bigger question because Elena Kagan is a bit of a mystery to both the right and the left. And that uncertainty adds tension to a confirmation process that nowadays is dramatic enough to begin with. A little biography: The first woman to serve as dean of the Harvard Law School and as solicitor general, the lawyer who argues big cases for the White House before the Supreme Court, 50 years old, which would make her the youngest justice.

If confirmed the court for the first time would have three women among its nine members. Not since William Rehnquist in 1972 has someone with zero experience as a judge been confirmed to the nation's highest court. Some critics see too big of an experience gap. The president sees something different.


BARACK OBAMA (D-IL), PRESIDENT OF THE UNITED STATES: Elena is respected and admired not just for her intellect and record of achievement but also for her temperament, her openness to a broad array of viewpoints, her habit, to borrow a phrase from Justice Stevens, of understanding before disagreeing, her fair mindedness and skill as a consensus builder.


KING: As an academic Kagan once ridiculed the Supreme Court confirmation process as too cautious and said nominees should be too open. But her, remarks today were the definition of playing it safe. (BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: The court is an extraordinary institution in the work it does and in the work it can do for the American people by advancing the tenets of our Constitution, by upholding the rule of law and by enabling all Americans regardless of their background or their beliefs to get a fair hearing and an equal chance at justice.


KING: So who is she? How will the White House counter conservative questions and criticisms and what stakes do you have in this? Here to help sort it all out are two men with deep experience in the law and the politics of the law. Charles Ogletree is a constitutional scholar at the Harvard Law School where a young Barack Obama was his student and Kagan for 10 years was his colleague and his boss.

And John Podesta not only calls Elena Kagan friend, he's a law professor, former Clinton White House chief of staff who advises the Obama White House now from his perch as head of the Center for American Progress here in Washington. Let me begin and hopefully we get a brief answer at the beginning and Professor Ogletree, I'll start with you in Boston. Who is Elena Kagan on the spectrum of the law? Is she a liberal? Is she a centrist? Is she a conservative?

PROF. CHARLES OGLETREE, HARVARD LAW SCHOOL: She's a centrist. She's smart. She's independent. She'll be a great asset to the court. She loves sports. She loves dining out and she's going to be a real addition to the court. She'll be a real sparkplug for the court right now as the youngest and the most innovative member of the court, she's going to be quite remarkable.

KING: And we'll get to some of the specifics in a minute. But John, you know her well. Is she an intellectual firebrand? Many have said you're losing Justice Stevens. Who will go in there and debate Alito and Scalia and hold the left or the center left?

JOHN PODESTA, PRES. & CEO, CENTER FOR AMERICAN PROGRESS: Well she's got intellectual firepower, John. I think that's what Professor Ogletree was trying to suggest. You know she's tough, she's tenacious. But you know she's got what I describe as a responsibility streak. She expects people to play by the rules and I think that she'll be really a strong voice on the court and one that can find consensus and try to find that fifth vote sometimes.

KING: All right let's go through some of the issues. Republicans right out of the bat say one of the main avenues of inquiry they want to propose looking at is what happened on this whole incident of the military recruiters on the Harvard campus. She opposes "don't ask, don't tell". She's been very clear about that.

And when she was at the school -- we'll put up some details here because this can be confusing -- she reinstated a policy banning military recruitment because the military discriminated against gay Americans. She did permit the military to recruit through a student group. She did not let them have their central office that they once had on campus.

The government threatened to withhold federal aid and Kagan did relent permitting recruitment at the law school. Professor, you were there. I want you to listen first to Jeff Sessions. He's the top Republican on the Judiciary Committee. And he believes this is a significant avenue of inquiry.


SEN. JEFF SESSIONS (R), JUDICIARY COMMITTEE: I just thought it was out of touch with reality really. I mean if she opposed the policy, let her advocate against it urge it to be changed but not deny the people who are defending this country who are at that very moment dying abroad for our freedom, to deny them the right to come on campus.


KING: The criticism is that she was somehow not only against the policy but anti-military.

OGLETREE: Well, I think this is fair game for the Senate hearings. I think she'll have a good answer. Because the reality is that she was against discrimination against her students. We had students at Harvard -- and I was on the committee that proposed this policy. Students were discriminated against because of their sexual orientation. We thought that was unfair.

And the dean supported that idea of not allowing someone to discriminate against people who were patriots, who wanted to serve for their country, who were willing to die for their country, but they couldn't be part of the military because of their sexual orientation. That was unfortunate. And she had to take that tough issue because there are students on both sides. She supported student's right to join the military, who weren't gay or lesbian, but she also was against any discrimination policy and this was one.

KING: Let me ask you another question. The Associated Press center reported today at the Clinton Library, Elena Kagan worked in the Clinton administration, and they found a document she wrote back in 1997 urging then-President Bill Clinton to support compromise legislation on late-term abortions. It would have banned some late- term abortions. Do you know her views on abortion?

PODESTA: Well I think that again, she was trying to influence what President Clinton was doing. They were his policies that were being pushed forward and obviously that legislation was coming forward from the Hill. There was a lot of discussion and debate about that, but I would say that, you know, I believe that her view, she'll have to explore this in hearings as Professor Ogletree was suggesting --

KING: But do you know her views?

PODESTA: I don't know her views as we stand here today, but I would suspect that you know that will be a topic that comes up in these hearings. KING: Another thing almost certain to come up, Professor Ogletree is her record as the dean at Harvard Law School. And there was an article published today -- it was an academic study done by law professors at several different universities. It was republished today on the Web site Salon and it talks about her decisions as the dean and it says this.

"Kagan had hired 32 tenured and tenured track academic faculty members. Of these 32 tenured and tenure-track academic hires only one was a minority. Of these 32 only seven were women. All this in the 21st century"

As an African American professor on the campus, did you have trouble with her hiring decisions, sir? Do you think she was not diverse enough in those decisions?

OGLETREE: Well Elena actually did a great job as the dean of the law school. We just were able to get Annette Gordon Reed (ph), who many of you know, just won a Pulitzer Prize for her book on the (INAUDIBLE), Sally Hemmings and Thomas Jefferson. She accepted the position. Elena recruited her years ago. As well there have been other people given offers who didn't come because they liked where they were at, at their home institution.

I think this is not a real sense of her record. She clerked for Thurgood Marshall. She holds the chair (INAUDIBLE) Houston chair of the first African-American to go to Harvard Law School (INAUDIBLE) "Law Review". She's reached out. There are more black students, brown students, Asian American students at Harvard than ever in the history of the law school during her years as deanship.

She's been very supportive of the work that I've been doing on behalf of the Houston (ph) Institute. And I think she has a lot to offer to the court and she will be a great, fair, smart, deliberative justice and I think she'll make a great contribution.

KING: Let's get one more in before we take a break and continue the conversation. One of the big things that came up in the Sotomayor nomination was what many critics called the empathy standard, the president saying that when a judge goes on the court you are to interpret the law but also keep out an eye out for the little guy who might not be considered by the law. One key Republican today said that should not be the standard.


SEN. JON KYL (R), JUDICIARY COMMITTEE: There's a lot of talk these days by the president about getting a justice who will rule for the little guy against the big guy. Well, that's not the right way to look at a case. As Justice Roberts said, if the law's on the side of the big guy, then the big guy wins.


KING: And another key Republican -- that's Jon Kyl -- he's on the committee. He's also the number two in the Republican leadership. Another Republican on the Judiciary Committee, John Cornyn said even if you accept that standard that a justice should look out for the little guy, then Elena Kagan doesn't meet it. He said this.

"She's a surprising choice from a president who has emphasized the importance of understanding how the world works and how ordinary people live. Ms. Kagan has spent her entire professional career in Harvard Square, Hyde Park and the D.C. beltway. These are not places where one learns how ordinary people live." Essentially one of the Republican lines of attack, John Podesta, seems to be that she's an elitist.

PODESTA: Well it's interesting that they're out attacking her today rather than letting her kind of answer questions, speak for herself, look at a tremendous career of public service that she's had. But I think if you come back and look at what she's actually done, what -- and I know her particularly from the policy perspective when she worked in the Clinton White House.

She fought to protect kids from having tobacco companies advertise to get them addicted to tobacco. She fought to expand the Patient's Bill of Rights. She fought to expand adoption rights for people in this country. So I think she understands the lives of ordinary people. I think she's dedicated a public career to trying to improve their lives and I think that will hold her in good stead when she comes before those hearings.

KING: All right, we've just gone through some of the conservative criticisms of Elena Kagan on the day she was nominated for the nation's highest court. When we come back there are also some worries on the left. We'll explore them in just a minute.


KING: We're back discussing the president's new nominee for the Supreme Court; Professor Charles Ogletree with the Harvard Law School is with us and John Podesta, the former Clinton White House chief of staff. Professor Ogletree to you first -- why is the left nervous about your friend Elena Kagan? And as we get to the conversation, I want to take you back in time today and then the Sotomayor confirmation. Here is what People for The American Way, a leaning liberal group here in town; Michael Keegan is president said this today when Elena Kagan was nominated.

"I look forward to the confirmation process and learning more about the judicial philosophy she'll bring to the high court." Now, let's flash you back in time. That's a pretty measured statement there. When the president nominated Sonia Sotomayor last March here's what Michael Keegan said. "President Obama has made a superb choice. We urge senators to confirm Judge Sotomayor with all deliberate speed." So on the left there is a question about this woman, some suspicions that perhaps she could be to Barack Obama what David Souter was to George H.W. Bush.

OGLETREE: John, a lot of responses. First, when you quote with all deliberate speed. You know that's the book I wrote. And all deliberate speed means slow. I don't think that's what he meant when he said that comment. The reality --

KING: You'll have to send him a book.

OGLETREE: -- people don't know -- exactly. Elena Kagan is not liberal. And she doesn't have a track record. Sotomayor had been a judge for decades, for two decades. She had been a practicing prosecutor. Her record was public. And Elena Kagan has been a scholar, she's been a teacher, she's been the dean of a law school. So she hasn't had that sort of public record.

So they will -- to know her is to love her. And I think people need to get a chance to know her. And I assure you that once they get a chance -- let me just say one other thing. That the Congress -- that the senators who say that she's elite -- elitist, Elena Kagan's father represented tenants in New York, her mother was a public school teacher. She grew up trying to be the girl who could do what guys could do, be a lawyer, be a tough person, make a difference. And I think that elitist label just won't play. She's going to be a hard charging, very deferential, very experienced member of the court when she's confirmed.

KING: As you know, John, and you were trying to help this White House reaching out to some of these groups from your perch outside the White House, a lot of liberals are nervous. They see a thin paper trail and they say why. Some people think actually her paper trail is so thin deliberately, that she had ambition to serve on the court, and so unlike many other prominent academics she hasn't written that many papers because she didn't want anything that would catch her.

PODESTA: Well I think -- I think that's kind of a silly charge really. I think that if you look again --

KING: What did they ask --


KING: When your liberal friends call you and say, why should we trust here? What are they asking about?

PODESTA: Again, I think if you look at her overall record of public service and we've talked about it, not just in the White House, but as dean of the Harvard Law School, if you look at what she's done, what she's put her passion into, it's been in the cause of making this country a better place, a more progressive place, a place where everybody --

KING: But can people asking these questions know that record and they're still asking these questions. Why are they worried?

PODESTA: Well you know I think they're worried for exactly the reasons that Professor Ogletree suggested, which is that they don't know her I think as well as the two of us. But I think if you look at the broad spectrum of people who have actually worked with her and who have seen her tenacity, her brilliance, her toughness, and the fact that she's passionate about trying to improve the lot and the lives of people in this country, they'll come to support her and I think that she'll get a strong vote in the Senate.

KING: One of the big issues of concern from the left is her views on executive power, especially because it was Justice Stevens who challenged and defied and reversed some Bush administration policies in writing his decisions about treatment of terrorism detainees and the like. And they see that in Elena Kagan first as the Obama solicitor general, she has argued some cases that they view as defending some of those policies to a degree.

They also see a 2001 "Harvard Law Review" article she did write where she talked about the president's domestic and administrative powers. Now she does not assert in that article that the president has power over the other branches of government, but she does make an argument for a strong presidency. Professor Ogletree, is she -- is it fair to say that she would be to the right or more in favor of executive power than the justice she would replace?

OGLETREE: I think it's not fair to say anything. We just don't know. As the government's lawyer, she argued what she was supposed to argue as solicitor general. We just don't know and we can't -- (INAUDIBLE) I can tell you this, John, I didn't want to give up the secret, but when she was 5 years old, she did say -- she did say she wanted to be president or was that Barack Obama?

KING: Maybe it was both.

OGLETREE: You know things will come out, but I think the reality -- right -- but I think the reality is that we don't know. And I think that we can't read the tea leaves to know what she will do. She will be smart. She will be ready to go. And there are no liberals on the Supreme Court. The ages of Thurgood Marshall and Bill Brennan are over, probably over forever and I don't that you're going to see a liberal in the Supreme Court. She'll be a centrist. She'll be someone who can hopefully influences a fifth vote, but she's not going to be out to the left and different from anyone on the court that's on the court right now.

KING: Let me ask you, John, in closing, when you look at the terrain and you know the committee and you know the history, what is your -- what would you tell the president of the United States and your friend Elena Kagan, here's the thing you need to worry about most?

PODESTA: Well you know I think she's got to get up there, answer these questions, do it in a way --


KING: As the person who argued that nominees should be more open, should be more candid --

PODESTA: Well --

KING: Should she prove that you can be more candid to a degree?

PODESTA: I would like to see her answer the questions in a way that people can really understand her judicial philosophy. That will be a judgment call on her -- in her case. But I think there is a point in which you're prejudging cases. I saw one senator come out today and say that he wanted to know her views on the constitutionality of the just passed health care law. Well that's a case that may come right before the court.

So I think there is a boundary in which you -- that you can't cross, but I hope that she's expansive in talking about her judicial philosophy, why she -- and I believe if she does that she'll be confirmed. And I think she will be confirmed with a very solid vote. She got Republican support as solicitor general, done an excellent job there. And I think Republicans will support her for this post as well.

KING: John Podesta, Professor Ogletree, thank you both for your time today. We'll bring you back in the weeks and months ahead as this one goes through the confirmation process.

We have a lot more to come here on the show -- let me clear my throat -- wander over here. We'll give you a little bit of a preview. When we come back, we'll go "Wall-to-Wall". The defense secretary says he needs to cut billions in Pentagon waste. We'll take you around the world to show you just what he might try to cut.

And then we'll go "One-on-One" with Defense Secretary Bob Gates (INAUDIBLE) little slow tonight. Bob Gates will tell us number one, his views, and these are fascinating, on the domestic terror threat post the Times Square attempted bombing. And he'll say he will not be forced into a stupid way to repeal the "don't ask, don't tell" policy. And today's most famous person you don't know, she's an associate counsel at the White House. She will Elena Kagan's "sherpa", meaning her guide to the treacherous confirmation terrain on Capitol Hill.


KING: Just want to bring you these pictures just in to CNN of a tornado -- Norman, Oklahoma, south of Oklahoma City -- look at those fascinating pictures. The twister snaking through the sky -- luckily as we speak to you now there are no reports yet of injuries, but the severe weather system is working its way across the southwest plains and we will continue the track it. Looking at dramatic pictures of a tornado -- again this is Norman, Oklahoma, a little bit south of Oklahoma City. We'll continue to track this throughout the hour.

You see there some destruction caused by -- but again as of now we are told no major injuries as a result of that twister. We will stay on top of this throughout -- throughout the hour and of course throughout the night here on CNN.

But now we want to go "Wall-to-Wall" on a challenge the defense secretary laid out this past weekend. He's telling his own bureaucracy, you cannot expect more money from Congress. At a time of high deficits, he says Congress is going to start clenching its fist when it comes to military spending. So Robert Gates, the defense secretary, says he will look across the military spending all around the world. He says his initial target is to try to find 10 to $15 billion in spending on commands the military no longer needs, weapons systems that no longer needs, bureaucracy, redundancy, pork, he says he must find it so that he can support the war fighters in Iraq and Afghanistan.


ROBERT GATES, DEFENSE SECRETARY: I think everything is on the table, frankly. I'm willing to look at everything that there is. That's the only way we can do it. In the past, particularly after 9/11, with the supplementals, the department never had a great deal of discipline in fiscal matters but discipline really went out the window with the supplementals. And so I think that there's been a lot of growth in this bureaucracy over the last 10 years that makes for what I would call a target-rich environment.


KING: So what does he mean by target-rich environment? Well the secretary did not name specific commands, but we're going to go around the world for you and take a look at some of the possibilities. Let me drop this down here and pass over to the "Magic Wall". Every red dot you see -- and this is just the United States right now -- you'll see more as we go around the world. But every one of these red dots and you see some down here in Latin American, Central America, South America -- that is a military installation somewhere in the world.

So what is -- what is possible cuts when you look for things to cut out? Here's one that comes up a lot -- again Secretary Gates did not name this, but if you talk to people about a command that could be eliminated, millions say the Joint Forces Command -- that's in Norfolk, Virginia -- has a lot of seminars, a lot of planning. A lot of people tell you this command here, you could shut it down, save the money, move it to the Pentagon or other commands around the world. That's just one.

Now let's go over and take a peek at Europe. If you look at Europe overall, the Cold War ended how long ago, 20-years plus, there are still 40 generals, admirals and civilian equivalents high ranking people at some of these institutions and installations across Europe. Many believe you could cut many of those and save millions if not billions in the process by downsizing. You wouldn't know this, but the U.S. Africa Command just recently formed is headquartered at the moment in Stuttgart, Germany.

That is also one that comes up as a potential cut even though the threat of terrorism especially in North Africa is quite large, but many say does this belong there. One of the problems is no African country has agreed to host it, yet so it sits in Germany. Here's one that comes up even more often. Zoom in to now Naples. This is the U.S. Naval Command in Naples, Italy, the European Naval Command, many say it is now outdated because of the Cold War. You don't need that over there.

Just some of the installations, 40 generals and the equivalent -- let's come back to the wide view now and look at some of the other possibilities for the Pentagon -- here is one of the complaints that Secretary Gates raises, that there are too many contractors. He says you can eliminate a lot of spending by doing that. Pork projects forced on the Pentagon by Congress including in the current budget an attempt to buy more C-17 giant transport planes. But Secretary Gates says if they're in the budget, he wants the president to veto it.

A lot of redundant costs he says could be eliminated. Let's look at one other big challenge for the Pentagon and this is a tough one. Health care costs for the Pentagon have risen from 19 billion to $50 billion over the past decade. Now it is a very sensitive issue to ask the Congress to ask the troops to pay a little more or to ask the troops maybe to take a slightly smaller pay increase, but Secretary Gates says that is one thing that needs to be looked at. And here's why he says -- a family of four, the average family of four on the federal employee health care plan pays about $3,200 a year in out of pocket expenses.

A military family, just $1,200 and that has not been changed in 15 years. So that is one of the controversial areas Secretary Gates says the Pentagon needs to look at. As you look at this challenge and again I just want to bring this back so you can see this -- every one of these red dots, a U.S. military installation around the world. Secretary Gates saying he now puts his personal credibility on the line of finding 10, $15 billion, hopefully more, in wasteful spending and redundant spending by next year's budget, which means we'll know the answer in nine or 10 months as to whether he has succeeded.

When we come back we'll go "One-on-One" with Defense Secretary Gates. His views on domestic terrorism and you won't want to miss him when he says he will not be forced into a quote, "stupid way" to repeal the "don't ask, don't tell" policy prohibiting gays from serving openly in the military.


KING: Robert Gates is the defense secretary and a rare breed. He has now served eight presidents, Democrats and Republicans, beginning with an entry level job at the Central Intelligence Agency including tenures as the CIA director and now the Pentagon chief in both the Bush and Obama administrations. He's a son of Kansas and counts Dwight Eisenhower as a role model, powerful but not pretentious. Gates is a Republican but says he very much enjoys his work and his relationship with this Democratic president. We had an extended one on one conversation this weekend at the Eisenhower presidential library. Among the topics his early lessons from the attempted car bombing in Times Square.


KING: What does it tell you about the diversity of the threat, if you will, the diversity of the challenge?

ROBERT GATES, DEFENSE SECRETARY: I think what we've seen is there are two developments that I think are of concern. You're seeing individuals who have been radicalized and who hold American citizenship who have been willing to undertake these missions against us. And it's pretty clear that they -- that people like Awlaki and Yemen and others see any kind of an attack inside the United States, even if it's a small scale attack, compared, say, to the world trade center, the towers, who see that as a success for them. So that makes the challenge for the FBI and the intelligence agencies and the department of justice and local police that much tougher. Because you may not have a big complex plot involving a lot of people that might be easier to detect.

So I think that kind of threat where the threat is actually -- the threat of large scale harm is reduced, but the likelihood of some kind of an attack being successful is increased. And I think that's a concern. The other concern we have really affects what's going on in Afghanistan and Pakistan. And that is the creation of this syndicate of terrorist organizations that are working with each other. Al Qaeda, the Taliban in Pakistan, the Taliban in Afghanistan, the Haqqani network, there are five of six of these groups that are working together. A success for one is a success for all. They're looking at destabilizing the whole region and overthrowing not only the Afghan government, but the Pakistani government and so on. And so this problem has become more complex as these groups have gotten closer and cooperated operationally in a way that we hadn't really seen I think in a significant way before 2007, 2006.

KING: Has that changed your challenge and the challenges you present to your counterparts?

GATES: Where it actually has been helpful is that as Pakistan has seen these bombings on its own territory, it clearly has seen a greater incentive to go after these guys. And so the Pakistanis have sent a number of brigades to the western part of the country and frankly, 18 months ago, I wouldn't have believed that they would be active in South Waziristan and swat and these other places.

KING: What about in terms of the things you need to do up in that area? I know it's a sensitive subject. But there are Special Forces operations, the drone operations, do you need more of that?

GATES: I think we're doing what we need -- I would just say we're doing what we need to do.

KING: Grade the relationship now as opposed to, say if we're having this conversation a year ago, in a way that just the average American watching understands the tangible results they're getting.

GATES: Sure. On a scale of one to ten, I would have put the relationship at about a three two years ago. I think it's probably at a six or a seven now. I mean, there's been a significant improvement in the partnering and in the cooperation.

KING: How many Faisal Shahzads might there be in the United States? Any way to quantify that?

GATES: There's no way to know that. In the intelligence business we always used to divide everything we wanted to know into two categories, secrets and mysteries. Secrets were the things that were ultimately knowable. Mysteries were the dings you couldn't know. The number of those guys is unknowable.

KING: You gave great hope to a lot of people in the gay community in America when you embraced the president's promise of ending don't ask, don't tell. Now there's a bit of a backlash because of the letter you sent to Congress saying we need time, we need to survey our troops. You have to give us, until this survey is done, get feedback from the military, a lot of people thing you're trying to stall or push this off. Maybe you have some idea of delaying it till after the election. What do you say to those critics?

GATES: I know there are some that are suspicious that this is some kind of effort to slow roll this process. I've led several public institutions and I've led change in every one of them. There's a smart way to do change and there's a stupid way to do change. This one has to be done smart. And I think it's only fair as we get ready to make this change, that we give our force the opportunity to tell us how they feel about it, for us to find out their concerns, for us to identify the challenges we're going to face if Congress does change the law and how we will go about doing that and how we will mitigate negative consequences from what we hear from the force. I said this is not about whether, but about how, and that continues to be our position. Frankly, I believe to legislate before this review is done would send a very negative signal to men and women in uniform, that their views on this and how it should be done don't matter. And I think that's a very bad signal. I want to do this right. I want to do it in a way that makes as little impact on the readiness and capability of our forces as possible in the middle of two wars. So I really feel very strongly about this review process and about doing this change smart.

KING: Did the politics ever come up in the conversation with the president about this where he says, I got it, Bob, I understand, I completely respect the process you're going there and I suspect he thinks it's the right process, but he's getting hammered from the left on this. Has that ever come up at all?

GATES: No. And my position with everybody on this has been very clear from the very beginning, with the Congress, with the president and so on. I support this change, but it needs to be done in a way that has the least possible impact on our military.

KING: Another promise the president made that has been put on hold is closing Gitmo.

GATES: I think it is in the Congress' hands at this point. We have money a proposal in the budget that we've sent to the Congress to close Guantanamo and to fund the military part of another prison here in the U.S. and we're waiting for Congress at this point.

KING: Then if Congress doesn't give the money, then does Gitmo stay open indefinitely or is there some plan c?

GATES: I think we really haven't explored what the alternative would be if the Congress decided not to fund this.

(END VIDEOTAPE) KING: Secretary Gates there. As you know, we're determined to always bring you into the conversation. So this week's question, if members of Congress had a suggestion box, what programs would you tell them to cut? Record your opinion, post it at The winner gets a JK USA mug.

So what does slavery have to do with the president's new Supreme Court nominee? The answer is on our radar just ahead. Should Latinos look elsewhere if Democrats don't keep their promises? Don't miss the play by play of one senior Democrat's testy answer.


KING: In light of Elena Kagan's nomination to the U.S. Supreme Court, today's most important person you don't know is Susan Davies. Her official title is associate counsel to the president. But her unofficial title is what makes her so important today. She'll be Kagan's unofficial -- the administration doesn't like this term -- but Sherpa. Just like Sherpa's mountain guides help climbers up the treacherous slopes of Mt. Everest, Davies will take a lead role guiding Kagan through the treacherous process of Senate confirmation from the initial courtesy visits to the televised confirmation hearings to dealing with reporters, the paparazzi. You get the picture. When Davies talks, Kagan might want to listen. She worked for the Senate Judiciary Committee, the solicitor general's office, justices Kennedy and Breyer and President Clinton, just like a Sherpa, Davies succeeds if we never hear about her again and Kagan reaches the pinnacle of her career. Three people who know about Sherpas join me. Democratic strategist Maria Cardona, Republican strategist, Ed Rollins and our senior Congressional correspondent Dana Bash. So this person is what? Your eyes, your ears, your radar?

ED ROLLINS, REPUBLICAN STRATEGIST: She's the person that takes you around. She's the person that picks up what's going on on the hill. Obviously, Kagan can do this herself. She's done this before. She did it with the white house, solicitor general. She knows all these players up there. It's not like you got a perfect stranger. She's well known on the hill. You need someone to get the feedback.

KING: Get the feedback. All right. Let's stay on this subject but change topics a little bit. The Republican Party chairman Michael Steele found a reason to attack Elena Kagan earlier today. The press release hits a Kagan article back in 1993 supporting someone who said that the United States constitution as originally drafted and conceived was defective. Who said that, Justice Thurgood Marshall who was talking about slavery.

MARIA CARDONA, DEMOCRATIC STRATEGIST: You would think that the Democratic Party is paying Michael Steele. We thank him every time he opens his mouth.

ROLLINS: Aren't you?

CARDONA: We should be.

DANA BASH, CNN SENIOR CONGRESSIONAL CORRESPONDENT: I checked in with a couple of Republican sources who are actually trying to help devise strategy to deal with Kagan on Capitol Hill. I asked if that's bizarre. He said, no, that's ridiculous. And another said, I thought we were past assigning any level of consequence or seriousness to anything that comes out of the RNC. By the way, these are Republican sources on Capitol Hill.

KING: An issue with the Republican chairman and an issue in Pennsylvania's Senate primary. Democratic Congressman Joe Sestak rushed out a statement pointing out his opponent, Republican turned Democrat, Arlen Specter voted against Kagan when she was nominated for solicitor general. Sestak says, "I expect Senator Specter may backtrack from his earlier vote on Ms. Kagan this week in order to help himself in the upcoming primary election. But the people of Pennsylvania have no way of knowing where he will stand after May 18." Congressman Sestak taking advantage here. Can't blame him I guess.

BASH: Arlen Specter, it's an issue for him. He voted against Elena Kagan when he was a Republican -- not just a Republican, but the ranking Republican on the Senate judiciary committee. Ironically, he said he voted against her because she wasn't giving enough answers. Look, the bottom line is he is not only a Democrat but he's running for his political life as a Democrat in that primary. He won't have any choice politically but to vote for the president's nominee.

CARDONA: I agree. I'm positive that he will backtrack, but he'll say something to the effect of, I know more about her now. She's done a great job as solicitor general.

KING: I've been convinced, I've seen the light. Let me get one more in. There will be a Republican primary in Utah. The state's three-term senator though won't be on the ballot. He didn't make the cut at Utah's Republican convention. When he was here last week, Senator Robert Bennett seemed to have a sense this might be coming.

SEN. ROBERT BENNETT (R), UTAH: The anger is palpable. The anger is strong and that's why I'm in trouble. If I meet with the delegates, if I spend time with them going through the facts, I find I can turn them around.

KING: He found that didn't quite work out.

ROLLINS: No finer man has ever served in the United States Senate than Robert Bennett. He's a conservative. He's been there for 18 years. I've known him for a long, long time. He's a gentleman.

KING: So what's that mean to your party?

ROLLINS: Basically a very unique convention system out there. I think at the end of the day, he made a bad vote on T.A.R.P. but the warning I think where this thing's is going to play out is Republicans are now the opposition party. You walk away even on one major vote, including no matter how qualified Ms. Kagan may be, if any Republican goes on that side and starts voting, they may pay a price.

BASH: You feel that on Capitol Hill. Republicans are trying to be careful in their initial response to Kagan. But the conservative activists, they're not kidding when they say they'll be watching this vote.

CARDONA: I think it shows how much the conservatives are actually ruling the Republican Party which might be fine during the primary but I think it's going to put them in a very bad position from the general election because that's not where mainstream America is.

KING: All right. Ed and Maria will stay with us and you stay there because when we come back we'll take a closer look at the growing disparity between the Supreme Court and the rest of America. Later, our off-beat reporter Pete Dominick looks at the president's latest target.


KING: All right, you get the drill. Play by play, we have our two experts here, Ed Rollins, Maria Cardona. We're going to break down some tape. We've got some fancy graphics. This one is interesting. Let's begin with something the president said today in introducing his Supreme Court pick Elena Kagan.

PRES. BARACK OBAMA (D), UNITED STATES: I think she would relish the prospect of three women taking the seat on the nation's highest court for the first time in history. A court that would be more inclusive, more reflective, more representative of us as people than ever before.

KING: Let's put that to the test. More reflective, more representative of a people than ever before. Let's take a look at this first when it comes to gender. Now these statistics include having Elena Kagan on the court. The current population of the United States is 50.9 percent, so 51 percent female, 49 percent male. If you put Kagan on the court, you'll have 33 percent and 67 percent. So progress, not quite to America. What about race? Let's look at the race question here. The U.S. population is 75 percent white, 12 percent African American, 3.6 percent Asian, 12.5 percent Latino. Again with Kagan on the court, you get closer, white 78, black 11, Latino 11. Let's stop there for a second. So what does that mean to you? Is that what a president should be doing, trying to match the court up to the population at large?

CARDONA: I think it makes a big difference because the decisions that the Supreme Court presides over are decisions that are going to impact all of America in the full diversity. If you have a court reflective of America, it's going -- they're going to better able to understand and make sure that those impacts are good for the country.

KING: Here's one that jumps out at you. For the first time there will be no Protestants on the Supreme Court. Let's look at the court by religion. The U.S. population, 51 percent are Protestant. 24 percent Roman Catholic. You see Mormons, Christians, 1.7 Jewish, Buddhists, Muslims. The Supreme Court with Kagan is 67 percent catholic, 33 percent Jewish.

ROLLINS: As a Catholic with a Jewish wife, those statistics are pretty good to me. For a long time there was a catholic seat which is singular, there was a Jewish seat which is singular, until 29 years ago there was no women on the court. I think any of this -- I think diversity is important. I think at this point in time we don't have quotas. We have qualified people.

KING: This is my favorite. By education. 0.1 percent of the U.S. population went to Harvard. 0.05 percent went to Yale. On the Supreme Court, 67 percent Harvard, 33 percent Yale.

ROLLINS: Yale needs to try harder. And don't bother going to Stanford or Duke or other great law schools.

CARDONA: Duke needs to try harder.

ROLLINS: You know, I think this is a unique group of people today in the political system. I was on the judicial selective panel. I know how they go through the system. I think this is a very unique situation.

KING: Let's work this one. This is Jorge Ramos, works for Univision. He puts this question to a politician. You see Harry Reid there.

JORGE RAMOS: Voted for Democrats in the past. Now that many Latinos think that President Obama didn't keep his promise and they haven't seen Democrats in the Senate or in the other chamber supporting immigration reform, are you afraid that Latinos may be voting for more Republican candidate in the next election?

KING: Let's stop it there. Fair question?

CARDONA: It is a fair question. Jorge is a friend of mine.

KING: Fair question?

ROLLINS: Absolutely.

KING: Okay.

Here's the answer.

SEN. HARRY REID (D), MAJORITY LEADER: What you just said is so senseless. I don't know how --

KING: So senseless? So senseless?

CARDONA: Well, wrong choice of words. But I know what he's talking about. Because in light of the Arizona law, what I don't believe in -- and Harry Reid doesn't believe and the Democrats don't believe that, Latinos are going to be flocking to Republicans any time soon in these upcoming elections. There is no contest. They're not voting for a Republican candidate.

ROLLINS: A Republican primary June 8th. You'll see that in a commercial very quickly. If he doesn't do extremely well among Hispanic voters, he's done.

KING: Ed Rollins and Maria, we'll bring you back, thank you so much. Should the leader of the free world know how to use an iPod? Pete on the street has the answer.


KING: You know Pete on the street as a technology guy. He is on Facebook, radio, can you find him everywhere. But what about the president, Pete?

PETE DOMINICK, OFFBEAT REPORTER: He said that some of the gadgets, especially the video games, serve as a little bit more of a diversion, distraction. And he also admitted he doesn't know how to use them. I went out and asked people what they thought about that, John.


DOMINICK: Is that an iPhone?



DOMINICK: And you still get along? Is it a distraction?

UNIDENTIFIED FEMALE: Yeah, for sure. Definitely. I had a blackberry at work. I got rid of it for that reason.

UNIDENTIFIED FEMALE: Constantly looking down, you know, no eye contact.

DOMINICK: Do you play video games?

UNIDENTIFIED MALE: I don't very often. Every now and then.

DOMINICK: Mostly outside chopping wood?

UNIDENTIFIED MALE: Yes, exactly. I'm an urban woodsman.

UNIDENTIFIED FEMALE: I don't do video games.


DOMINICK: Two hours a day?

UNIDENTIFIED MALE: I don't like them.

DOMINICK: You don't like them?

UNIDENTIFIED MALE: I suppose the president wants to ban them.

UNIDENTIFIED FEMALE: Out to eat. They're 3 and 5.

DOMINICK: You have a 3 and 5-year-old. I have a 3 and 5-year- old. They don't know what electricity is. Do you think the president should know how to play videos games?

UNIDENTIFIED MALE: I think he knows it. UNIDENTIFIED MALE: He should know how to do everything.

UNIDENTIFIED FEMALE: I think he should know how's to use rock band.

DOMINICK: Rock band?

UNIDENTIFIED FEMALE: My nieces have that. It's awesome.

DOMINICK: Do you think the president should know how to use an iPad?

UNIDENTIFIED FEMALE: That's that new thing?

DOMINICK: You got one of them?

UNIDENTIFIED FEMALE: I haven't opened it yet.

DOMINICK: You just bought an iPad. Do you think you could teach him?

UNIDENTIFIED MALE: Yes, why not? Mr. President, I teach if you want. Okay?


DOMINICK: Sometimes the president plays parent and chief, too, John King.

KING: Pete, next time you're in town, I got the X Box, WII. My son has it all. You're welcome to play. That's all for us tonight. Thanks for watching. John Roberts filling in for Campbell Brown starts right now.