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MR. DAVID GREGORY: This Sunday: a critical moment in the future and direction of the Supreme Court. What role will she play? The president's nominee Elena Kagan has started to make the rounds on Capitol Hill. This morning, only on MEET THE PRESS, two of the key players who will decide whether Kagan becomes the next justice, Democratic member of the Judiciary Committee Senator Chuck Schumer of New York; and the Republican leader, Senator Mitch McConnell of Kentucky.
Then, our political roundtable weighs in on the eve of a huge political week in this midterm year. Key Senate primary battles in Pennsylvania, Kentucky and Arkansas; and a special election to fill John Murtha's seat in Pennsylvania. What is behind the anti-incumbent wave?
Finally, a look back in our MEET THE PRESS MINUTE. Thirty-nine years ago, where the debate stood about nominating a woman to sit on the high court.
Announcer: From NBC News in Washington, MEET THE PRESS with David Gregory.
MR. GREGORY: Good morning. Twenty-six days after the BP oil rig explosion in the Gulf, another attempt to stop the massive oil leak failed yesterday as BP tried a procedure to siphon oil to a ship. But the pipe connection didn't work. This as federal officials sought assurances from BP that it will live up to its promise to cover individual compensation claims. With us to discuss this and a host of other issues Washington is now confronting, New York Senator Chuck Schumer.
Welcome back to MEET THE PRESS.
SEN. CHUCK SCHUMER (D-NY): Glad to be back once again.
MR. GREGORY: The president spoke about BP, he spoke about the oil spill on Friday, and he got mad.
SEN. SCHUMER: He did.
MR. GREGORY: This is what he had to say.
PRES. BARACK OBAMA: I know BP has committed to pay for the response effort, and we will hold them to their obligation. I have to say, though, I did not appreciate what I considered to be a ridiculous spectacle during the congressional hearings into this matter. You had executives with BP and Transocean and Halliburton falling over each other to point the finger of blame at somebody else. The American people could not have been impressed with that display, and I certainly wasn't.
MR. GREGORY: He got angry. So now what should the government be doing, Senator?
SEN. SCHUMER: Well, a couple of things. First, you have to make sure BP pays for the whole thing. It's their fault, the taxpayers should not have to be behind this.
MR. GREGORY: Should there be any cap on the damages they pay?
SEN. SCHUMER: I don't believe there should be. I would...
MR. GREGORY: Because right now it's $75 million.
SEN. SCHUMER: There's an effort in Congress to remove that cap, and I think it'll pass.
MR. GREGORY: What else would the government do? Is it a question of more regulation?
SEN. SCHUMER: I think it is. Somebody has to look over the oil companies' shoulders. And the president, to his credit, said that the federal watchdog wasn't a good enough watchdog. Obviously, something failed dramatically here. There ought to be a fail-safe mechanism and then there ought to be a backup fail-safe mechanism because if you, if you don't have it, look at the damage. And it can last for years and years and years, and it also changes all the politics. You look at a climate change bill, it's going to be harder to get one done given the oil spill, given that drilling off the coast was part of the compromise.
MR. GREGORY: And--right. And the president was for that compromise, now that's been tabled. But look at our NBC News/Wall Street Journal poll, what it found about offshore drilling. It is still very popular. Sixty percent say they support it. And yet, the politics are bad on this now.
SEN. SCHUMER: Well, you have to come up with assurances of people that this wouldn't happen again. Now, you know, just before this happened people would come in who were for offshore drilling and say nothing bad has happened in the Gulf, at least, for 30 or 40 years. Can't say that anymore, and it changes the balance. And my guess is gradually those poll numbers will reflect that. Americans want to be independent to foreign oil. That's right. It's killing us both economically, foreign policywise, and everything else to take people--countries like Iran and Venezuela that hate us and make them rich. So everyone is now looking anew at domestic sources of energy production. Clean energy would be the priority, but people are looking at others--nuclear, offshore, things like that. And that's going to continue. But people want to make sure that if we're going to do it, it's going to be a lot better and a lot safer than what happened in the Gulf.
MR. GREGORY: Let me turn to the nomination of Elena Kagan to be the next Supreme Court justice. Here she is back in 1993 in the committee room. She worked, of course, for Senator Biden, who was chairman at the time. There she is. And she had--she saw it up close, and she had some pretty direct things to say about it. This was an article she penned for the University of Chicago Law Review, during which she said, in recent hearings--"If recent hearings lacked acrimony, they also lacked seriousness and substance. ... When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public." You've met with her. With that in mind, do you think she is prepared to reveal more than she might otherwise about her legal views and philosophy?
SEN. SCHUMER: Yeah. I think that's the right thing to do. I said that when there were Republican nominees from George Bush, and I believe it with Democratic nominees. These hearings should not be a farce and should not be, "What's your favorite movie or restaurant?" They should talk about judicial ideology and philosophy. Obviously, you can't pin--try to pin someone down on what might be an upcoming case. But knowing how they think, how they reason, what's their view of settled law, these are all very legitimate questions, and the hearings would be much less if they weren't asked.
MR. GREGORY: What do you specifically want to know?
SEN. SCHUMER: Well, the first thing I want to know is just how she balances things. What I really like about Elena Kagan is she's a practical person. You know, we have eight justices who were judges above all. Sometimes when you have people way up there in that rarified ivory tower, they forget the practical consequences of their decisions on businesses, on local governments, on people. To have someone practical, someone who ran a big legal business, Harvard Law School--which she ran by all reports very well, $160 million budget, 500 people.
MR. GREGORY: That's pretty rarified air, though, Harvard Law School.
SEN. SCHUMER: Yeah, but...
MR. GREGORY: You say that the judges are living in rarified air.
SEN. SCHUMER: Yeah, but, you know, it's a lot of practical concerns. One of the things she had to do, which she may have to do on the court, is bring the conservative and liberal factions together. And both sides said she did a very good job.
MR. GREGORY: But do...
SEN. SCHUMER: So I want to see how--and I hope, and I--it's my hope and belief, this practical person will help bring the court down to earth a little bit.
MR. GREGORY: Well, so talk about that. What, what does she mean for the overall direction of the court?
SEN. SCHUMER: Well...
MR. GREGORY: Is she a liberal or is she a moderate?
SEN. SCHUMER: I--look, I think she's--she tends to be a moderate when you look at her writings. But I think that's less important. When the president called me and asked me what was the number one criteria for a nominee--this was before he chose Kagan--I said I think it should be somebody who will be in the majority of five rather than the minority of four; someone who'll have the--not only the intellect--and everyone says she's brilliant--but the force of personality, the practicality to try and create coalitions. I think a lot of us, at least on the Democratic side, were shocked by the Citizens United case, for instance. And...
MR. GREGORY: Just remind people, this was about political contributions.
SEN. SCHUMER: This is the case that said unlimited corporate money could flow into our politics undisclosed in any way, and it's really--I mean, the First Amendment's important, but so is the sanctity of our political process, so that the average person has a say. And I was shocked at this. Maybe a Kagan on the court could have persuaded a Justice Kennedy that the practical--you know, the abstract notion of First Amendment triumphs everything has a balance, and the balance is the practical effects of that. And my hope would be she would do it, and that's what I'm looking for.
MR. GREGORY: But...
SEN. SCHUMER: I'd like to see someone who would be effective at that.
MR. GREGORY: As you know, there are liberals who are concerned about her view of executive power, that she might be closer to the Bush administration, frankly, on what the executive can do with regard to a war on terror.
SEN. SCHUMER: Mm-hmm.
MR. GREGORY: And she might actually hold up some views that the Obama administration has put forward with regard to a robust executive power with regard to the war on terror. Is that a concern?
SEN. SCHUMER: It's certainly a concern. It will be an area of questioning. But, again, I think that Elena Kagan, as both brilliant and practical--those are the two watchwords that I would ascribe to her in looking at her record, as I have a little bit, meeting her this week--will sort of come to a balance. I, I like balance. I don't like judges too far right, but I don't like them too far left. They tend to want to impose their own views and ideology.
MR. GREGORY: The Republicans have said she's a blank slate, she doesn't have judicial experience. Take that on.
SEN. SCHUMER: She doesn't have judicial experience, but she has a lot of experience, a lot of practical experience. She's hardly a blank slate. You'll look at all of her writings, she wrote many articles as a professor. What she did when she was working in the Clinton White House, that's all going to be available--Freedom of Information--to the Kennedy Library--or the Clinton Library has been put forward. There'll be plenty of information about her. And this idea that she has to be a judge and has judicial writing, some of our greatest justices had no judicial--Justice Marshall, Justice Frankfurter, Justice Jackson. Rehnquist, who many conservatives would consider a great justice, had about as much judicial experience as Kagan has.
MR. GREGORY: Couple of issues in our couple of minutes left. Terrorism and homeland security funding has become a hot button issue...
SEN. SCHUMER: Yes, it has.
MR. GREGORY: ...for you and for New Yorkers. Here is the New York Post after the administration said it would cut back some of that funding. "Obama to New York: Drop Dead.
"That was the message Team Obama sent - loud and clear - yesterday in slashing anti-terror funding for the city." You put out a pretty blistering statement as well.
SEN. SCHUMER: I did.
MR. GREGORY: And we'll put that up on the screen. "For the administration to announce these cuts two weeks after the attempted Times Square bombing shows they just don't get it and are not doing right by New York City on anti-terrorism funding." You say it was cut by 27 percent. Secretary Napolitano of Homeland Security says, "Hey, wait a minute. New York has unused anti-terror funding available to it now." And you got additional stimulus money to help in this regard. What's at issue here?
SEN. SCHUMER: OK, what, what's at issue is two things. First, it's changed. We've learned since Christmas, with the Christmas bomber, Abdulmutallab, and, of course, with the attempted--thank God it missed--horrible attempt in Times Square, that, A, New York is really the target. It's not one of 50 targets; we're the number one target. And second, that there's a group, Pakistan Taliban, that has the capability of trying to do something. They came all too close. And so the funding should change. Should New York get only 12 percent of the port anti-terrorism security funding? You know, Secretary Napolitano points out that not all the money is spent. That's how Washington works. Bottom line is, a lot of the money hasn't been spent because FEMA, an agency under the jurisdiction of the Homeland Security, hasn't spent it.
MR. GREGORY: But, Senator, a lot of people don't like how Washington works. If you haven't spent all the money why do you need more money now?
SEN. SCHUMER: No. OK. Well, we have spent it, it just hasn't been spent out.
MR. GREGORY: OK.
SEN. SCHUMER: In other words, when you do a three-year contract to put in radiation detectors, she's saying "Well, years two and three haven't been spent yet." That's true. But they've been accounted for. And when FEMA, a federal agency, is holding it up, you can't blame--that's true. People don't like the way Washington works and that's an example. Look, here's what I think, David. The president gets it. He came to New York, he showed responsibility. What happened here is sort of bureaucrats and bean counters at OMB and maybe Homeland Security were doing business as usual, following through on a formula that had been put in place before December. We have a new round of anti-terror funding, the largest pot called UASI. I've asked the administration, I've spoken to the highest levels, to move New York's percentage up from 18 to 25, which is what it was in 2005. We do that, we can make up for these cuts, and I think the mayor, myself, Peter King would be happy.
MR. GREGORY: The attorney general, Eric Holder, was here last Sunday. He refused to say whether Khalid Sheikh Mohammed will be tried in New York or not. You have said this is, this is not a closed question.
SEN. SCHUMER: It is not a closed question. I, I think the chances of him been tried--of him being tried in New York are close to zero.
MR. GREGORY: Does he go to a military tribunal, case closed?
SEN. SCHUMER: Well, that'll be a question that they have to decide. The issue here is...
MR. GREGORY: What do you think, though?
SEN. SCHUMER: Well, here's what I think. I think--look, I'm tough on terrorism. I wrote the federal death penalty law that would give the death penalty to terrorists. What's the quickest and best way to do that? And I think we ought to defer to the experts on that.
MR. GREGORY: All right. Final point here is politics. Look what our poll found about who the voters' preference are for this year election, in terms of Republican or Democratic-controlled Congress. Even split, 44/44.
SEN. SCHUMER: Right.
MR. GREGORY: The Republicans have come way back here. How about job approval for Congress? Not so good. Seventy-two percent disapprove in our poll. Should Democrats be concerned about this going into November?
SEN. SCHUMER: Of course we should, and that's why we have to focus, number one, on the issue that Americans care most about--jobs and the economy. And we are doing that. The stimulus, which was unpopular at first, now, if you look at the polls, is getting more popular. It's having its effect. Financial reform, good strong financial reform will have its effect. And let me tell you this, the American are generally optimistic. The reason the numbers are so low is because, for the first time, I think, in this recession, unlike the other nine post-World War II recessions, Americans said, "We're never going to get out of this." If by Labor Day they start seeing light at the end of the tunnel, not that we're there yet, but, "Ah, I can see where we're going to get there and get out of this and be back to the good old optimistic, prosperous America," we're going to do a lot better than people think. And that's what the numbers seem to indicate economically are going to happen. Job growth and everything else is up.
MR. GREGORY: Senator Specter, win or lose in the primary?
SEN. SCHUMER: I bet he wins by a little.
MR. GREGORY: Senator Schumer, thank you as always.
SEN. SCHUMER: Nice to talk to you.
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