During live CBS News coverage on Monday of President Obama's nomination of Solicitor General Elena Kagan to the Supreme Court, Face the Nation host Bob Schieffer argued that the Senate confirmation process would be "nasty....Not because of Elena Kagan....she is eminently qualified" but because Republicans are "very wary of what the right part of their party is thinking about them."
As evidence of his theory, Schieffer pointed to the primary defeat of Republican Utah Senator Bob Bennett on Saturday: "it is a very toxic election year. You saw over the weekend that Bob Bennett, the very conservative Republican senator from Utah lost the Republican nomination out in his home state because people there, including a lot of tea party people, thought he was not conservative enough." He concluded: "I think in the end, she will probably be confirmed, but I think it's going to be a very tough vote for a lot of Republicans and I think it's going to take some time before they get to that final vote."
In response to Schieffer's assertion, CBS Evening News anchor Katie Couric, who broke into CBS daytime programing at 10AM ET with a special report on the nomination, lamented: "Nothing is easy or simple in Washington these days, Bob."
Schieffer gave nearly identical analysis at the top of the CBS Early Show in the 7AM ET hour when co-host Harry Smith wondered: "What kind of fight do you think will ensue over the next couple of months?" Schieffer replied: "A really bitter and vicious one....she is eminently qualified. But we're in an election year, an especially toxic election year." Schieffer cited the Bennet defeat and observed: "In a way, a vote against her would be kind of tea party insurance to let people know that they're moving to the right. The Republican Party is moving very far to the right."
On both the Early Show and during the 10AM special report, CBS News legal analyst Jan Crawford was also a featured guest and touted her personal connection to Kagan, as a student of the former University of Chicago law professor. Crawford told Couric that Kagan:
...was incredibly dynamic. She was one of the most well-liked professors, very challenging, but in the classroom, she was very engaging with the students....those qualities that the White House believes she will take on to that Supreme Court and be a very effective justice, her ability to engage with people, those people skills will make her, they think, a consensus builder.
Couric observed: "You know, oftentimes in these confirmation hearings, people are described, or nominees are described as either strict constructionists or judicial activists. Certainly, she seems to fall into the latter category." Crawford dismissed the "activist" label for Kagan: "Elena Kagan is a moderate liberal. And so to call her an activist, I think, would be really a stretch for some, of even the Republicans. She's got a lot of conservative support....I don't think you're going to be hearing many people tag her as an activist."
On the Early Show, Smith noted to Crawford how "it seemed she [Kagan] was almost as valued for her EQ as her IQ, her ability to get along with other people." Crawford agreed: "Well, she actually has both....she's very engaging, very challenging, she's quite dynamic in her personality. And you see that when she's arguing cases before the Supreme Court. The justices really like her."
Here is a transcript of Couric's Exchange with Schieffer and Crawford in the 10AM special report:
KATIE COURIC: So a beaming Elena Kagan getting a standing ovation in the East Room of the White House. Whether her confirmation hearing will be as smooth remains to be seen, but she has now been nominated to replace Justice John Paul Stevens on the U.S. Supreme Court. Solicitor general, former dean of Harvard Law School, and of course, a former professor at the University of Chicago as well, a professor who taught our chief legal correspondent, Jan Crawford. Jan, tell us what your impressions were as a student of Elena Kagan's.
JAN CRAWFORD: Well, she was just starting out, Katie, as a young professor and she was incredibly dynamic. She was one of the most well-liked professors, very challenging, but in the classroom, she was very engaging with the students. And we see some of those same qualities now when she's arguing cases before the Supreme Court. She keeps it light, but she's serious. She's engaging with the justices. And as we heard President Obama say just now, it is, I think, those qualities that the White House believes she will take on to that Supreme Court and be a very effective justice, her ability to engage with people, those people skills will make her, they think, a consensus builder.
COURIC: And Jan, as we heard the President say, he praised her understanding of the law as it will affect the lives of ordinary people. You know, oftentimes in these confirmation hearings, people are described, or nominees are described as either strict constructionists or judicial activists. Certainly, she seems to fall into the latter category.
CRAWFORD: Well, you hear conservatives talk about strict constructionists and that's what a conservative justice would be, someone who looks really closely at only the words of the Constitution. It's conservatives who actually refer to liberals as activists because they think they go too far in reading the Constitution. Now, Elena Kagan is a moderate liberal. And so to call her an activist, I think, would be really a stretch for some, of even the Republicans. She's got a lot of conservative support. Conservatives will testify, some of her colleagues, at her confirmation hearings, so I don't think you're going to be hearing many people tag her as an activist.
COURIC: How big a role, Jan, do you think gender played in this? I know Sandra Day O'Connor has spoken about the need for another woman on the high court and the National Association of Women Judges sent the President a letter urging him to, in fact, nominate another woman. Do you think this was a key factor?
CRAWFORD: I don't think it was the key factor, but I think it was certainly one that went into the overall mix. I think the main factor was her youth. At 50, she'll be on that court for a really long time. And her ability, like I said, to build those coalitions. It's a group of nine people, sometimes back in the old days, people called the court, you know, nine scorpions in a bottle, it's a pretty hard place to navigate. They're not lacking in ego up there. But certainly, it was a plus that she's a woman and as you said, Justice O'Connor has always said there should be not – you know, just one or two or even three women on the court, maybe someday we'll have even four or five.
COURIC: Alright, Jan Crawford. Jan, thanks so much. Let's go to Bob Schieffer, who is our expert in all things political. Bob, do you think a rocky confirmation process is before Elena Kagan? We've already seen some conservatives come out swinging about the fact that she didn't allow military recruiters onto the campus at Harvard because of her opposition to 'Don't Ask, Don't Tell.' What do you think is likely to happen?
BOB SCHIEFFER: A very contentious, and probably at times, nasty confirmation hearing. Not because of Elena Kagan and who she is. I think as you saw there, she is quite compelling and certainly, she is eminently qualified. This is an election year, Katie, and it is a very toxic election year. You saw over the weekend that Bob Bennett, the very conservative Republican senator from Utah lost the Republican nomination out in his home state because people there, including a lot of tea party people, thought he was not conservative enough. I think you're going to see it very difficult for Republicans to vote for her, not because of her, but because she's simply been nominated by Barack Obama. And they are going to be very, very wary of what the right part of their party is thinking about them this time. I think in the end, she will probably be confirmed, but I think it's going to be a very tough vote for a lot of Republicans and I think it's going to take some time before they get to that final vote.
COURIC: Nothing is easy or simple in Washington these days, Bob.
SCHIEFFER: Nope. Nope.
COURIC: Alright.
SCHIEFFER: You're right.
COURIC: Bob Schieffer. Bob, thanks so much for your insight as always.
Here is a transcript of Smith's exchange with Schieffer and Crawford on the Early Show:
JAN CRAWFORD: Hello.
BOB SCHIEFFER: Good morning.
SMITH: Jan, let me start with you. Why Elena Kagan?
CRAWFORD: Well, at the end of the day, she gave the White House everything that they wanted. She's progressive, even though some people say she may be moderate, but she is a progressive, she will be a leader on that court, she can build coalitions, bring consensus together, and she's 50 years old. So that, combined with the fact that she's not going to be a huge fight, is what tipped the balance to her at the end of the day.
SMITH: It's so interesting, no real paper trail, no judicial record to speak of. I – as I was culling through her information, it seemed she was almost as valued for her EQ as her IQ, her ability to get along with other people.
CRAWFORD: Well, she actually has both. I mean, I've known her for a long time. She was a professor of mine at the University of Chicago law school and she's very engaging, very challenging, she's quite dynamic in her personality. And you see that when she's arguing cases before the Supreme Court. The justices really like her. You should see Justice Scalia, obviously a conservative, and Kagan going back and forth. So the White House sees that as a real plus. And they expect her to be a very effective jurist on that court.
SMITH: Isn't it ironic, thought, here's the President of the United States, during his State of the Union address, specifically chastises the court for its decision on campaign finance reform, and allowing corporations to put as much money in campaigns as possible – as they want, and the person who argued against that was Elena Kagan.
CRAWFORD: Right, I mean she defended that law and you're going to hear that over and over and over in these hearing, that she defended that law. She was on the side of every day Americans. The problem for her, though, and why this doesn't quite fit, is that she's not really an every day American. She's upper west side New York, Princeton, Harvard, Oxford, so, you know, she is part of that elite academic world. Then Republicans this morning already are hammering her as a true, you know, Washington insider.
SMITH: Bob Schieffer, as this bubbles up today and people really start to chime in, people talk about her being confirmable and she was just confirmed as solicitor general, 61-31. What kind of fight do you think will ensue over the next couple of months?
SCHIEFFER: A really bitter and vicious one. I would start by saying, Harry, I think she is eminently qualified. But we're in an election year, an especially toxic election year. Just this weekend, you saw the very conservative Bob Bennett, the senator from Utah, lose the Republican nomination because members of the – to the right of the party, a lot of tea party people, thought that he was not conservative enough. I think you will see some Republican senators, moderates, giving very careful consideration to their vote on Elena Kagan. In a way, a vote against her would be kind of tea party insurance to let people know that they're moving to the right. The Republican Party is moving very far to the right. So I think this is going to be – she may be confirmed in the end, I think she probably will, but this is going to be a very, very difficult election year argument on Capitol Hill.
SMITH: Because there was another candidate who was viewed as being more centrist, as being confirmable in the long run if, for instance, there is a loss of Democratic votes in the Senate in the future. The President clearly decided 'I – this is the card – my best card to play at this time.' You think it's going to be rancorous, though?
SCHIEFFER: I think it will. I mean, you're talking about Merrick Garland. I think most people thought that he would have been – he's the appeals court judge – thought that he would be the most easily confirmed. The President chose not to go that way. I think the second most easily confirmed was probably Kagan, but that doesn't mean it's not going to be a really drawn out and a tough fight. Republicans are going to give very careful consideration to whether they vote for her or not. Just because – not because of her, but because of the situation in this election year.
SMITH: And as young as she is and being around for a long time. Bob Schieffer, thank you very much. Jan Crawford, appreciate your expertise, thank you.
CRAWFORD: Thanks.
