(Kagan is likely to be a conservative adversary? The ABC host appeared to be continuing the liberal talking point that the mind of Obama's nominee is somehow unknowable.)
Stephanopoulos eagerly quoted, "So, he went on to say, 'I'm happy to see that the latest nominee is not a federal judge and not a judge at all.' Of course, Kagan has gotten some criticism from some senators because she's not a judge."
Supreme Court judges, liberal and conservative, are often very polite and kind to their newest members. Yet, Stephanopoulos took this and paraphrased, "But there you have got Justice Scalia saying, 'Well, that could be a good thing.'"
During the segment, Stephanopoulos interviewed former justice Sandra Day O'Connor. She appeared to take Obama to task for lecturing the Supreme Court during the last State of the Union: "You have to sit there. You can clap when the President enters. You can clap when the President leaves. And in between, you keep your hands in your lap and keep your face composed. And so, it's a strange situation. And given an option, I would prefer not to be there."
The former Democratic operative turned journalist quickly shot back: Well, you'd have an option [of going], don't you?"
Back on May 10, Stephanopoulos threw softballs to a former top Obama aide about Kagan, gushing, "What's the single thing that impresses President Obama most about Kagan?"
A transcript of the May 27 segment, which aired at 7:16am:
GEORGE STEPHANOPOULOS: Now, to my exclusive interview with former Supreme Court Justice Sandra Day O'Connor. She was in New York yesterday, to promote her passion: Teaching civics to students with high tech computer games. We are going to have much more on that later in the show. But we took the chance to hear what the court's first female justice thinks about Elena Kagan, President Obama's latest high pick for the high court. Also the hot controversy over immigration in O'Connor's home state of Arizona. But, I began by asking justice O'Connor if she has any advice for Kagan.
SANDRA DAY O'CONNOR: None. She doesn't need advice. But, just, she'll have to go through the process of a Senate Judiciary Committee hearings. And I don't care who you are. It's a difficult, unpleasant experience for the nominee.
STEPHANOPOULOS: In her confirmation hearings, O'Connor, who had been a judge, lawyer and legislator, faced tough questions on issues like abortion. Elena Kagan's critics point to her slim paper trail and no experience as a judge. Does it matter if someone hasn't been a judge before they go to the Supreme Court?
O'CONNOR: I don't think it does. We've had- at least one-third of the justices over time were never a judge. I think it's fine. Just fine.
STEPHANOPOULOS: And what you've seen of Elena Kagan. I know you know her a little bit. Do you think she will be confirmed?
O'CONNOR: I would think so. She seems to be qualified academically.
STEPHANOPOULOS: One question a justice Kagan would almost certainly face if confirmed, that controversial new immigration law in O'Connor's home state, Arizona. It has sparked protests. Supporters say it helps fight illegal immigration. Opponents call it unconstitutional racial profiling. Although O'Connor was wary about weighing in, it's clear she has real concerns.
O'CONNOR: : It's been enacted. And I think what we have to look at now is what does Arizona do now? How do we put a good step forward to show that Arizona is not, as a whole, a biased state? And that we appreciate and respect the Hispanic population in our state very much. They've been part of us long before we became a state. And I think as a state, we respect and admire very much our Hispanic population.
STEPHANOPOULOS: Do you think the law is constitutional?
O'CONNOR: I'm not going to weigh in on that. I'm sure sections of it will be tested.
STEPHANOPOULOS: Then, there's that controversy pitting the President against the Supreme Court at the State of the Union, when President Obama chastised a court ruling, prompting audible grumbling from Justice Alito and a rebuke from Chief Justice Roberts.
JOHN ROBERTS: The image of having the members of one branch of government, standing up, literally surrounding the Supreme Court, cheering and hollering, while the court, according to the requirements of protocol, has to sit there, expressionless, I think is very troubling.
STEPHANOPOULOS: A feeling O'Connor appeared to share.
O'CONNOR: You have to sit there. You can clap when the President enters. You can clap when the President leaves. And in between, you keep your hands in your lap and keep your face composed. And so, it's a strange situation. And given an option, I would prefer not to be there.
STEPHANOPOULOS: Well, you'd have an option, don't you?
O'CONNOR: If all your colleagues think the court should go, then you're probably going to go. If the court- if the members of the court, as a group, sort of decided, we really think we might as well not go, then I think most would avoid it.
STEPHANOPOULOS: Robin, it seems like a real critical mass is developing against these justices going there and sitting like potted plants during the State of the Union.
ROBIN ROBERTS: It is very uncomfortable. But, Kagan got an unlikely little boost from-
STEPHANOPOULOS: Not only Justice O'Connor, who says she thinks will be confirmed and says not being a judge doesn't matter, Justice Scalia, who is likely to be a conservative adversary if Kagan gets confirmed, pointed out that everybody on the bench now is a judge. So, he went on to say, "I'm happy to see that the latest nominee is not a federal judge and not a judge at all." Of course, Kagan has gotten some criticism from some senators because she's not a judge.
ROBERTS: Yes, she has.
STEPHANOPOULOS: But there you have got Justice Scalia saying, "Well, that could be a good thing."
ROBERTS: Yeah, and, of course, in the past there have been others who have been justices who were not a judge.
STEPHANOPOULOS: Former Chief Justice Rehnquist.
