CHRIS WALLACE, ANCHOR: Now, on to the other big stories we're following, Monday's Supreme Court hearings for Elena Kagan and the firing of the top U.S. commander in Afghanistan.
Joining us are two senators leading the debate on both issues, Democrat Dianne Feinstein and Republican Lindsey Graham.
And, Senators, welcome back to "Fox News Sunday."
SEN. LINDSEY GRAHAM, R-S.C.: Thank you for having me.
SEN. DIANNE FEINSTEIN, D-CALIF.: Thank you, Chris.
WALLACE: Let's start with Afghanistan. At the end of this tumultuous week, with McChrystal out and Petraeus in, Senator Feinstein, what do we need to do differently to win the war?
FEINSTEIN: Well, I don't pretend to be a general. I would say this. Forty percent of the territory is either Taliban-controlled or contested. In Kandahar, it's probably 50 percent of the area. The Taliban, in my view, is one part terrorist group, one part narco cartel today. Afghanistan is still producing 90 percent of the opium/heroin in the world. It is a big problem.
And I think that the surge really has to be brought to southern Afghanistan and that's where the battle is going to be against the Taliban. That's my view. You have a weak central government. It has to be buttressed. It has to become stable. It has to be willing to pick up.
The training of the military forces is on target and now I understand as of yesterday that the training of the military police will be on target. So those are two good signs and some difficulties.
WALLACE: Senator Graham, do you expect General Petraeus to make big changes once he takes over in Afghanistan from relaxing or expanding the rules of engagement to maybe bigger changes in strategy?
GRAHAM: Well, I think he'll look at the rules of engagement there as sort of a common view that the rules of engagement hamper military operations, that we're going too far the other way. But I'll leave that up to the general. He's certainly a master at that kind of stuff.
Counterinsurgency will continue. My big concern as we move forward -- is the civilian side going to change? We've got a dysfunctional relationship between the military-civilian components that's essential to winning a counterinsurgency.
The ambassador's a fine man, has a poor working relationship with President Karzai. That's true of Ambassador Holbrooke. Can they function together with General Petraeus? That's one thing I'd like to know. But the main problem I have going forward is that we've got to clarify this withdrawal date of July 2011. If it is a goal where we'll all try to start transferring power over to the Afghans, I'm OK with that. If it's a date where people are going to begin to leave no matter what, a predetermined withdrawal date, that, in my view, will doom this operation.
WALLACE: But let me -- there are a couple of points you made and let me -- let me drill back on them. On the question of replacing the civilian side -- we're talking about Ambassador Eikenberry and Special Envoy Richard Holbrooke...
WALLACE: ... do you expect the president to get rid of them? Was Petraeus given any assurances that he would get his own civilian team when he takes over?
GRAHAM: I don't know, but I know that the team they had were not working well -- the releasing of the memo from the embassy that, you know, the surge wouldn't work because Karzai is so corrupt.
This is a chance to start over completely, and the military- civilian relationship is important. I'll leave that up to the president, but I'm very concerned if nothing changes on the civilian side.
And let me just say again, as -- I'm not a general either, but I know this. If you're sitting down with a tribal leader and everybody in Afghanistan believes that we're going to begin to leave in July 2011 no matter what, it's going to be hard to win over people on the fence, and that's got to change or we're going to lose.
WALLACE: Now, let me just ask one more question and then I'll bring you into this, Senator Feinstein.
You say that you're going to leave that to the president. One thing you haven't left to the president is you say he should tell Vice President Biden to shut up in terms of saying that come July 2011 a lot of people are going to -- are going to be leaving the country.
GRAHAM: Well, I said it tongue in cheek. There's two things here. If it's the policy and he's echoing the policy, the policy needs to change. Is he saying what the policy is -- we're going to leave in large numbers July of 2011, you can bet on it? If that's the policy, that will doom this operation. If it's not the policy, he shouldn't be saying it.
My belief is that he thinks it's the policy. Rahm Emanuel said last week it's the policy. I really don't know. If General Petraeus is given the challenge of turning Afghanistan around, and the enemy believes we're going to leave next summer no matter what, or start to leave, it's going to be very hard for him or anyone else to win.
WALLACE: Senator Feinstein?
FEINSTEIN: Well, I have great respect for General Petraeus. I think he really should be a command presence of all of it. I think 10 years into it...
WALLACE: Over the civilians?
FEINSTEIN: Over the team. If the team isn't right, I think Petraeus' views should be taken into consideration and observed by the administration.
This is kind of, if you will, not a last ditch stand, but it is a major change in the middle of the surge, and I think you put the general in, he should make the call. If he can't work with the ambassador, the ambassador should be changed. If he can't work with Holbrooke, that should change.
I mean, I think we put all of our eggs in the Petraeus basket at this stage.
WALLACE: And let me just quickly follow up on that. If Petraeus comes to the president in the spring of 2011 and says, "You know, this July deadline -- I need six more months," should that...
FEINSTEIN: I would say give it to him, absolutely. Now, let's talk about the deadline. This is a transition point toward the beginning of a withdrawal or a draw down, as Petraeus said in his transcript before the armed services.
And I think he has flexibility, realistically. Ten years is a long time to fight a war, particularly with what happened before the 10 years. And so we need to understand that to get the military trained, get the government online, secure and stabilize and, I think, do away with the drugs to a great extent -- because the drugs are now fueling the Taliban.
WALLACE: All right.
You are also both members of the Senate Judiciary Committee which tomorrow begins confirmation hearings on Supreme Court nominee Elena Kagan.
Senator Graham, what is your single biggest concern about Kagan? What do you need to clear up before you can decide whether or not to vote for her?
GRAHAM: I can accept that she's liberal. She has a liberal activist background politically. She's embraced liberal causes. She has a liberal philosophy when it comes to the law. She's a very qualified person, academically well grounded.
Her hero in the law, the judge that she admires the most, is Judge Barak from Israel who personifies liberal activism, not just accepting of left-of-center, mainstream liberal judicial philosophy. I need to be sure that her activist background will not be taken to the court and that when she puts on the robe that she will try to enact through being a judge the liberal... (CROSSTALK)
WALLACE: But you know what she's going to say. She's going to say...
WALLACE: ... "We'll apply the law."
GRAHAM: Yeah, but I want to hear why she picked this guy in Israel to be her judicial hero, because he said some things way out of the American mainstream.
So she'll have to convince me that all of this liberalism that she's lived with all her life can be put in a proper place and when she gets to be a judge she'll be left of center but within the mainstream of judging.
WALLACE: Senator Feinstein, ironically, there are some liberal groups who are worried about Kagan and her record, and let's put some of it on the screen.
They note she supported a ban on partial birth abortions. She argued for strong executive powers. She says enemy combatants can be held indefinitely. Are you convinced that if confirmed she will vote with the liberal wing of the court?
FEINSTEIN: Well, I'm not going to get into whether she votes with the liberal wing of the court. I am going to get into that I believe she's in the mainstream of thinking, of legal thinking, in the United States.
I believe she is superbly qualified. I believe the drift net has been out to find some disqualifying factor and it hasn't been found.
Now, I admire Lindsey Graham. I think Lindsey Graham is a very good senator. That doesn't mean anything should be taken from it by my party. I wouldn't expect to be criticized because I admire Lindsey Graham. So I think because she...
WALLACE: I think there's a compliment in there somewhere, Senator.
GRAHAM: Yeah. Yeah.
FEINSTEIN: Yeah, right? So...
GRAHAM: (Inaudible) yourself (inaudible).
FEINSTEIN: Well, no.
GRAHAM: No, I'm joking.
FEINSTEIN: I wouldn't.
GRAHAM: I'm joking.
FEINSTEIN: I wouldn't. Thank you very much. I wouldn't.
GRAHAM: Thank you for admiring me.
FEINSTEIN: But I think this woman as solicitor general -- true, she's not an appellate court judge. Every other justice is an appellate court judge. This is refreshing to bring in someone I think with her background, which is the background of regular people, a young woman who has exceeded herself, magna cum laude, summa cum laude, associate domestic policy advisor in the White House, solicitor general of the United States.
This is a very impressive record, and that's what we judge people on, not that she said this one time or that one time.
WALLACE: Well, and let me ask you about another aspect of this, Senator Feinstein, because in 1995, as you well know, Kagan wrote a law review article in which she said this, "Subsequent hearings have presented to the public a vapid and hollow charade in which repetition of platitudes has replaced discussion of viewpoints."
Now, I know there's going to be a lot of joking on the committee -- "Well, you know, she said that when she wasn't a nominee," and stuff. Why not hold her to accounts and say -- and press her to be more forthcoming in her views?
FEINSTEIN: Oh, I believe this is going to come up at the hearing, and she is very likely to be pressed for her views.
WALLACE: But what when she says, "Well, I wrote that back in..."
FEINSTEIN: I -- it doesn't matter. We all read it. It was very precise. She expressed her very strong view that nominees should be more forthcoming, we should be more pressing in our questions, and I suspect...
WALLACE: So you're going to hold her to that?
FEINSTEIN: Oh, I suspect members will hold her to this.
WALLACE: Senator Graham?
GRAHAM: Well, I expect that she will have a reevaluation of that statement when she's on the hot seat. But I will...
WALLACE: A confirmation conversion.
GRAHAM: But let me tell you about the war. She said some things that are encouraging to me. She certainly has taken some positions that I expect a liberal judge to take. She's replacing Judge Stevens. I don't think there's going to be a great ideological change. But on the war front, she's said some things and done some things as solicitor general that give me some great comfort. You know, Dianne said some nice things about me. I appreciate it. But the one thing that I think we've made news here this morning -- she has suggested that Afghanistan -- this is our last best chance to get it right, and General Petraeus represents our best chance.
And both of us agree he ought to have his best chance, and that means he needs a team he can work with. And when it comes to deadlines, we need to take that off his back. So I stand with Dianne Feinstein to give this general the best chance he can to win, and that means change on the civilian side and taking the July date and changing it so he's not hampered.
When it comes to the Supreme Court, we're going to have a challenging hearing, and I think she'll do well, but she's going to have to earn her way onto the court.
WALLACE: Let's talk about that, because I think the conventional wisdom is that unless she really messes up in these hearings, she's going to get confirmed.
GRAHAM: Well, I was in the Gang of 14 -- extraordinary circumstances, the new test of whether a filibuster should be had. I haven't seen any extraordinary circumstances that would justify a filibuster yet.
But the one thing that bugs me about her is that when she embraces Judge Barak from Israel and the way he thinks and the way he writes as her hero, that to me is embracing liberal activism, not mainstream liberalism, and she's going to have to explain that to me and other members of the committee.
WALLACE: And if she does not explain that sufficiently, that would be an extraordinary circumstance?
GRAHAM: I think she -- I don't know if it rises to that. It will be a problem for her getting my vote and it would be a problem for a lot of moderate Democrats.
And this policy at Harvard about not allowing military recruiters to come to the law school is going to be problematic for most Americans. She's going to have to explain that.
But given everything I know today, she is well qualified but she has a lot to answer for. And the president won the election. To my conservative friends, you should expect liberals to be picked by Obama. But you should expect us to do our job, and that's not replace our judgment for his to make sure she's qualified and not an activist, and that's what we'll both do.
WALLACE: Would you agree, Senator Feinstein, that it's her nomination to lose at this point, or her seat to lose?
FEINSTEIN: I think that's accurate. I think most members see nothing that's disqualifying in her background, in her actions, in her service. And she has served, and I think she's served with distinction. She's been found well qualified by the American Bar Association.
She will bring, I think, a new breath into the court. It will be a mainstream breath. It will not be far right. It will not be far left. It will be in the middle.
WALLACE: OK. We've got about two minutes left and I want to ask you each a question on a separate subject.
Senator Graham, you were talking to the White House about a compromise that would allow the closing of the prison at Guantanamo.
WALLACE: Is that compromise -- are those negotiations dead?
GRAHAM: They're on life support. I've said if we changed our habeas laws, if we changed our statutes to be more national security-centric to convince the American people you could close Guantanamo Bay, open up a jail in America and be safe, that would be good policy.
I agree with the president that keeping the jail open hurts our efforts overseas. It is used against us by our enemies and our allies to...
WALLACE: But that compromise is...
GRAHAM: Is stuck. And I would like the White House to act on the proposals I've given them about changing our laws. I think all things being equal, if you could close Guantanamo Bay safely, it would help the overall war effort.
But there's not a whole lot of energy coming out of the White House to do that, and I'd like to meet them in the middle.
WALLACE: And with the final minute we've got left, Senator Feinstein, one of your other hats that you wear is chairman of the Senate Intelligence Committee. Director of National Intelligence Blair has been fired. Acting Director Gompert is resigning.
Meanwhile, House and Senate Democrats are deadlocked over the intel reform bill and the whole question of congressional oversight of spy agencies.
How quickly are you going to get this resolved? And how quickly are you going to confirm so that we have a director of national intelligence?
FEINSTEIN: Well, the process has begun. He has received the questions. Friday...
WALLACE: This is General Clapper.
FEINSTEIN: Yeah, General Clapper. Friday I learned the questions have been answered. They were at the White House. We would expect to receive them this week. We can move.
I have requested that the president call the speaker and try to move our intelligence bill. The reason the speaker has a problem with it is because we removed two things which the White House found to be veto-able.
One was an extension of notification on certain very sensitive matters to all members rather than the Gang of Eight. The second was Government Accountability Office -- we call it the GAO -- oversight which was anathema to the White House. Now, we took that out. The bill passed the Senate -- our committee and the Senate unanimously.
We've conferenced it with -- pre-conferenced it with the House committee. We believe we're in agreement. We're ready to move. If the speaker will allow them to go to conference, then we can move the bill.
WALLACE: But real quickly, will you hold up confirmation hearings for Clapper until you get resolution on the intel reform?
FEINSTEIN: Well, I've asked that the president would please talk to the speaker. If he does that, I will move ahead.
WALLACE: All right.
Senator Feinstein, Senator Graham, thank you both.
Thank you, Senator Graham, for telling all the headline writers out there what the news was today.
GRAHAM: Well, some of them are slow this time of morning.
GRAHAM: You have to -- have to wake them up.
WALLACE: Well, we all need some help.
Thank you both. And we'll all be watching.
GRAHAM: Thank you.
FEINSTEIN: Thank you.