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updated 6/16/2010 3:23:43 PM ET 2010-06-16T19:23:43

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.

MR. DAVID GREGORY:  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.

(Videotape, Friday)

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.

(End videotape)

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 experience, 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.

MR. DAVID GREGORY:  Joining us now from Louisville, Kentucky, Senate Republican Leader Mitch McConnell.

Senator, welcome back to the program.

SEN. MITCH McCONNELL (R-KY):Good morning, David.

MR. GREGORY:  I'd like to begin with the Kagan nomination.  You have questioned her qualifications, suggesting correctly that she does not have judicial experience, she's never been a judge.  And yet, back during the ill-fated nomination of Harriet Miers by President Bush, you were on the floor of the Senate and you said the following, "She will bring to the Court a lifetime of experience in various levels of government at the highest levels of the legal profession.  ...  She is well qualified to join our Nation's highest court." She wasn't a judge either, and yet you were for her.

SEN. McCONNELL:  Well, I think we learned from the Harriet Miers nomination that when you're a friend of the president and you don't have any judicial experience, it makes it important to make, to make sure that you're not just going to be a rubber stamp for the administration.
Really, we've had plenty of Supreme Court justices who have not had judicial experience who've done an outstanding job.  It just raises a red flag.  Frankly, I'm a good deal more troubled by two other things.

Number one, the, the case that Chuck Schumer mentioned, the Citizens United case, which was a blow for the First Amendment, a very important free-speech case.  Solicitor Kagan's office in the initial hearing argued that it'd be OK to ban books.  And then when there was a rehearing Solicitor Kagan herself, in her first Supreme Court argument, suggested that it might be OK to ban pamphlets.  I think that's very troubling, and this whole area of her view of the First Amendment and political speech is something that ought to be explored by the judiciary committee and by the full Senate.

Secondly is the issue of the military recruitment at Harvard.  She took the position that Harvard should not allow military recruiters at the law school, later supported that position in a decision in the--in a, in a case in the court system that ended up with the Supreme Court ruling 8-to-nothing against the position that she took.  I think these are two areas that need to be...

MR. GREGORY:  All right.

SEN. McCONNELL:  ...explored and will be explored by the committee.

MR. GREGORY:  I, I want to unpack that a little bit, Senator, but let me go back to this issue of qualifications.  Are you then satisfied that she has the level of qualifications to be on the Supreme Court?

SEN. McCONNELL:  Well, look, I think that's what we go into in the hearings. There'll be lots of records that'll be reviewed from her time at the Clinton administration, from her time at Chicago Law School, at Harvard Law School. We need to let the process play out here, an orderly process, a fair process, not a rush to judgment.

MR. GREGORY:  But don't you think a lot of people look at Washington and say, "This is the kind of politics that I hate." Here you were, you stood up for Harriet Miers despite the fact that she was a friend of the president.  You stood up for her despite the fact she didn't have judicial experience, but when it comes to a Democratic nominee you say, "Oh wait a minute, these are real problems here that have to be explored."

SEN. McCONNELL:  Look, David, the Republicans have treated Supreme Court nominees a lot better than the Democrats have.  I can't think of a single Supreme Court nominee by a Democratic president who's been treated the way Robert Bork was, the way Clarence Thomas was, the way Sam Alito was, who was filibustered by the president, the vice president, the Democratic leader and the chairman of the ranking member of the Judiciary Committee. I've never filibustered a Supreme Court nomination.

MR. GREGORY:  And do you think there's any impediment to Elena Kagan being confirmed this time around?

SEN. McCONNELL:  Well, what I think we need to do is to find out what her record is.  That's why--the hearings are not a sham.  They're serious hearings.  So the record will be developed before the Judiciary Committee, and then the members of the committee and, subsequently, the Senate will have an opportunity to tell us how they feel about it.

MR. GREGORY:  Let's go to this--the other concern that you raised about her position about the military.  So she's dean of Harvard Law School, she opposes military recruitment on campus because of the anti-discrimination policy that, that she was supporting with regard to the prohibition against gays and lesbians serving in the military.  Do you think that position makes her a radical with regard to her views in the military?

SEN. McCONNELL:  Well, you left out the most important point, and that was that the law, the Solomon Amendment, required that military recruiters be allowed on campus or the university give up their federal funding. So I think a more appropriate response might have been to
follow the law.  I think it's something we're going to look into at the committee because the decision was apparently made, "We'll take our chances on federal funding by not allowing those recruiters at Harvard Law School."

MR. GREGORY:  Right.  But they did, of course, have access to students through other military groups and, and veterans groups associated with campus. But my question is, do you think, as some Republicans have suggested, that she's got radical views about the military, or do you
think that's an overstatement and unfair?

SEN. McCONNELL:  Look, I don't know, all we know is the issue with regard to the Solomon Amendment.  And I think the committee ought to look into it. I--this--the record is yet to be developed.

MR. GREGORY:  Let me turn to the issue of the BP oil spill, which the president was quite angry about after the appearance by CEOs on Capitol Hill this past week, including the CEO of BP.  You heard Senator Schumer say there ought to be more effort on the part of the government to look over the shoulders of the oil companies.  What do you say?

SEN. McCONNELL:  Well, look, we're all angry about it.  This is a--an environmental disaster of gargantuan proportions, but the president's spent a whole lot of time pointing the finger at, at BP--and you should point the finger at BP and the other companies involved in it.  We're
also interested in knowing what the administration did.  Was the Mineral Management Service a part of this administration that approved this site? It also approved this spill response plan.  What kind of oversight did the administration provide during the course of the drilling?  There are plenty of questions that need to be answered, and there'll be adequate time for that.  But the administration's involvement in this will be a big part of the inquiry.  In the meantime, we need to do everything we can to stop this spill.

MR. GREGORY:  What about the issue of legitimate claims, as BP said, that it will honor?  Do you think that the cap for damages should be higher now, higher than $75 million, as you heard Senator Schumer say they would propose?

SEN. McCONNELL:  Well, the danger in that, of course, is that if you raise the cap too high, there will be no competition in the Gulf and you'll leave all the business to the big guys like BP.  What BP has said they need to be held to, which is they're going to pay for this.  They ought to pay for it, and they will pay for it.  But the danger of taking the cap too high is that you end up with only massive, very large oil producers able to meet that cap and produce in the Gulf.  And look, we can't walk away--and the president's not suggesting this either--from
offshore drilling.  As horrible as this is, it's important to remember that we get 30 percent of our oil from the Gulf and, if you shut that down, you'd have $14 gasoline.

MR. GREGORY:  Let me move on to Kentucky politics, something I'm sure you're thinking about this week.  This is the race that you've been engaged in, the Senate primary between the secretary of state of Kentucky, and that, of course, is Trey Grayson, against Rand Paul, who's
got support from Sarah Palin and from the tea party movement.  And right now, Senator, as you know, it is Rand Paul's to lose.  He's up double digits.  And The Washington Post had this headline this past week, and that is "The old Kentucky reign:  Who will join McConnell in the Senate? Depends on how much voters like McConnell." You have really put yourself out on a limb on this race ,and the voters appear to be rejecting that. Is this a referendum on you and the establishment Republican Party?

SEN. McCONNELL:  Well, it reminds me of when the president went in to Massachusetts, a state he carried by 26 points, and tried to elect the candidate running against Scott Brown.  I don't think anybody seriously thinks the president won't carry Massachusetts next time.  This is a race between two non-incumbents.  There's been a lot of discussion about incumbency.  We'll find out maybe something about incumbency Tuesday in Arkansas and, and Pennsylvania, where we have two Democratic incumbents in serious races.  We don't have incumbency on the line in Kentucky.  We have two non-incumbents running for an open seat.  One of our senators is supporting one candidate, and one is supporting the other candidate. Whichever one ends up running the best race, I guess, will be the nominee.  But most importantly, in terms of the Kentucky scene, we will have a unity rally at the state party headquarters on--next Saturday to get behind the winner and win in November.

MR. GREGORY:  You're not going to be in Kentucky on election night, are you?

SEN. McCONNELL:  Well, the Senate is in session on Tuesday, but I'll be at state headquarters next Saturday with the winner, and we'll all lock arms and go out and win in November.

MR. GREGORY:  But you're, you're suggesting that your efforts to help Trey Grayson have not paid off, you expect Rand Paul to win?

SEN. McCONNELL:  No, I don't know who's going to win.  I hope it will help. I think Trey Grayson would be a stronger candidate in November. But I expect Kentucky's going to be in a pretty Republican mood this fall, and I'm optimistic that whoever wins the primary will be the next senator from Kentucky.

MR. GREGORY:  What does it say, though, about the strength of the tea party movement?  However large and vast that movement is, it certainly has been in evidence in the support for Rand Paul.

SEN. McCONNELL:  Yeah, I think so, and it's an important movement in the country, and I think it's really going to help us in November.

MR. GREGORY:  President Obama has made the point and begun to frame the argument for the midterm race, and he did it at a campaign event the other night, about how Republicans will have to hear from Democrats, how Democrats will run in the fall.  This is what he said.

(Videotape, Thursday): PRES. BARACK OBAMA:  Now, after they drove the car into the ditch, made it as difficult as possible for us to pull it back, now they want the keys back. No!  You can't drive!  We don't want to have to go back into the ditch.  We just got the car out.  We just got the car out.

(End videotape)

MR. GREGORY:  How do you respond to that?

SEN. McCONNELL:  Sounds like he wants to run against George Bush one more time, doesn't it?  I mean, look, the administration's--the, the American people have taken a look at what this administration's done.  They're running banks, insurance companies, car companies.  They nationalized the student loan business, which will kill 31,000 private sector jobs. They've taken over health care.  They're in amount--they're about to do to financial services what they did to health care.  Their appointees over at the FCC are trying to take over the Internet. They've doubled the national debt in the last--will double the national debt in the next five years, triple it in 10.  The American people are appalled by this. And in your own NBC/Wall Street Journal poll, Peter Hart, the Democratic pollster who participates in that, and I'm paraphrasing, basically said the American people have made up their mind and it'll be very, very hard for the Democrats to change their mind.  We're looking at a midcourse correction here.  We'd like to see the president be the moderate he campaigned as.  And I think the only way that's going to happen is that the American people send us more Republicans in the House and Senate to
move this administration back to the middle in what I hope is the last two years of its only term.

MR. GREGORY:  Before you go, Senator McConnell, if the economy continues to produce jobs--573,000 between January and April--it's a projected 1.72 million jobs created over a full year.  If that happens, do you think President Obama deserves credit?

SEN. McCONNELL:  What we know right now is there have been 3,000 private sector jobs lost when the president--since the president came to office. We know they've added 260,000 government jobs.  We know the only boomtown in America is Washington because they're exploding government employment, hiring new government workers by borrowing money from our grandchildren. That isn't likely to change by November.  I hope the economy is beginning
to come back, but it'd have to come back a long way for anybody to believe the stimulus plan, which was sold to us to keep unemployment at 8 percent, has worked. Unemployment is at 10 percent.  We're not making a whole lot of headway so far.

MR. GREGORY:  Leader McConnell, we'll leave it there.  Thank you very much.

SEN. McCONNELL:  Thank you.

MR. GREGORY:  And up next, a Super Tuesday of sorts, in just two days, as we've been talking about.  Our roundtable weighs in on all the big races and what's behind this anti-incumbent wave:  Jonathan Alter, Peggy Noonan, Mike Murphy, and Bob Shrum.  Plus, our MEET THE PRESS MINUTE. Nearly four decades ago, the debate over nominating a woman to the Supreme Court, only here on MEET THE PRESS.

(Announcements)

MR. GREGORY:  Heated Senate primaries, a key special election in Pennsylvania and a growing anti-incumbent wave.  Our roundtable weighs in on the eve of a political week that could define the midterm elections, after this brief commercial break.

(Announcements)

MR. DAVID GREGORY:  And we're back with our roundtable:  author of the new book "The Promise:  President Obama Year One," Newsweek senior editor Jonathan Alter; Wall Street Journal columnist Peggy Noonan; Republican strategist Mike Murphy; and Democratic strategist Bob Shrum.

Welcome to all of you.  Good to have you here.  I keep--for the first couple of weeks, I keep welcoming people to the new digs.  So welcome to the new digs.

MR. BOB SHRUM:  Yeah.  They're great.

MR. GREGORY:  Thank you, thank you.  It's good...

MS. PEGGY NOONAN:  Yeah.

MR. JONATHAN ALTER:  As the kids would say, this is a sweet set.

MR. GREGORY:  Yes, yes.

MR. MIKE MURPHY:  I don't know if we're all very excited about HD.  I can tell you, I've been worried all week.

MR. GREGORY:  Yeah, it's HD.  Right, right, it's a good thing.

So much to talk about.  Let's start with the president's standing right here as we get set for this mini super Tuesday coming up this week. Here's his job approval according to our new Wall Street Journal/NBC poll.  He's at 50 percent.

And, Mike Murphy, I spoke to somebody close to the president this week who said, "Hey, look, he gets 53 percent of the vote in 2008, he's now at 50 percent.  Not bad for everything that's going on."

MR. MURPHY:  Well, not good enough.  I think if the election were held today the Democrats would lose the House.  It's not held today.  The question is the trend from now till November.  But there's no question there's a pushback in the country against the Obama policies.  He ran as a moderate, he's governed as a liberal.  Now the forces of the right are pushing back.  It's why his numbers are in decline.  You can argue about the slope of the decline.  He's not up, but his policies are up for referendum, and they're, I believe, going to have a pretty bad midterm.

MR. GREGORY:  And, Bob Shrum, what may contribute to that thinking is that, among seniors, among other activists types, the enthusiasm gap between Republicans and Democrats, that's in the Republicans' favor, which, in a midterm election year, is a problem.

MR. SHRUM:  Yeah, I think that's likely to change, although not certain. And I agree with Mike, by the way, that if the election were held today, it'd be a problem.  Although there's a new AP poll this morning that shows Democrats suddenly back with a five point generic lead in the
congressional race.  I think that's because people may be beginning to feel the effects of the economy.  Jobs are everything here.  These job numbers really matter.  I wouldn't yet call the midterm.  I actually think--you know, we saw it last summer, we saw an August that was
transformative.  And I think that in the era we live in, things can move very fast, and I think perceptions here can move very fast.

MR. GREGORY:  It is interesting, Jonathan Alter, and, and you write about this in the book "The Promise"--I'll hold it above the banner there--"President Obama Year One," what we're seeing in our poll is something that we've seen for a while with President Obama.  People like him personally, they're not as sold on his policies.  So his policies are less popular than he is as the man.  You write in your book about that in terms of what started to happen for him in the course of year one.  We'll put it up on the screen: "Little by little in the second half of the
year," this is his first year, "Obama lost much of his connection to the American people.  Some voters felt he wasn't expressing their anger; others just thought he was talking at a level over their heads.  He could be folksy, but he didn't have Bill Clinton's gift for making complex subjects fully accessible.  In fact the two presidents' relationships with the public were the inverse of each other. During the late '90s Americans didn't trust Clinton personally, but they trusted his ability to deliver for them on pocketbook issues; in 2009 the public trusted and
admired Obama personally, but not his approach to the issues that affected their lives."

MR. ALTER:  You know, change is hard, David, and a lot of people weren't quite ready for all the change that they got in year one of Obama's presidency.  And he delivered on a lot of it.  They are only now beginning to feel the effects of that change.  When Barack Obama came to
office, the economy was losing 740,000 jobs a month in January of 2009. We're now adding about 250,000 jobs a month.  So there has been a turnaround.  We have prevented another Great Depression from taking place.  But, as Mitch McConnell pointed out, unemployment is still 10 percent.  Americans vote and respond to the policies of the White House based on their pocketbooks in large measure. So what will happen this year will depend on what--politically, will depend on what happens economically.

MR. GREGORY:  But, Peggy, they also respond to leadership qualities, to people they have some affinity for.  You experienced that with Ronald Reagan. Is there a parallel here?

MS. NOONAN:  I, I am struck by the number of people who say they kind of like him but they kind of don't like his policies.  When you--when you add up those who say, whatever they think of him, they don't like his policies, there are more who don't like his policies.  However, he stays roughly at 50 percent in, in approvable--in, in approval and I think likability.  I think one thing that has changed for him in the past few months is that he has finally gotten off health care, which made him--made his position very delicate and was very hard for him, and, I think, helped him lose some of the center.  That's some of the three points that he's lost in the polls.  It's interesting to me also that the president seems different from his party.  His position seems stronger than that of the Democratic Party.  He stays around 50, they stay around whatever; Congress is about 20, the party itself about 40.  That's interesting to me, and probably has implications.  I'm not sure what they are.

MR. GREGORY:  But what are the implications, Bob?  Because there is a big, a big difference there.

MR. SHRUM:  Well, at the, at the risk of offending Peggy, the first thing I want to say is I think the arc of this presidency is going to be a lot like the arc of Ronald Reagan's.  In 1982, Reagan--people still liked him.  He had a terrible job approval rating, it went down to 35 percent. But as the economy got better, the Democrats who salivated to run against
him in 1984 found out how wrong they were.  I think what Obama has done--it's the other thing Jonathan has written--he understood--he actually took a lesson from Ronald Reagan.

MR. ALTER:  Mm-hmm.

MR. SHRUM:  Go early and go big.  Get the big changes done no matter how hard they are, and then ride the economic recovery up.  I think, in the end, 2012 is not going to be a good year for Republicans.  2010 I think depends on whether or not people begin--whether reality, economic reality catches up with the perception of recession.  There are some beginnings of signs that it is.

MR. GREGORY:  Well, let's talk about some of the big issues now on the president's plate.  Elena Kagan nomination, of course, for the Supreme Court.

And, Mike, I'll have you respond to something that Bob wrote in his column this week.  We'll put it up on the screen.  "Kagan may be the best choice for the Supreme Court--although there are dissenting liberals who doubt it.  But undeniably, one reason she was picked was to circumvent the clash and smash of a bitter partisan time.  We can already see that the strategy won't work fully; she'll be confirmed, but only after a faux battle against her make-believe radicalism."

MR. MURPHY:  Well, I'm shocked, shocked...

MR. GREGORY:  Yeah, yeah.

MR. MURPHY:  ...that Bob's in support and expecting a faux battle against
her.

MR. SHRUM:  You probably actually agree with that.

MR. MURPHY:  Well, here's what I think.  I think since the Democrats ran the assassination campaign of politics against Bork, we've had two levels of Supreme Court nominations.  One, the real kind of politic of the issues of the court, where they are as lawyers or judges or, or
academics; and second, the political show.  And they've got the votes to confirm her.  He, he picked a center-left justice that he thought he could get through.  I'm not a big fan. I'm a conservative.  That said, I think they've got the votes.  The politics of this will be secondary to the economy and big things, but I think Republicans are going to score some points on this military recruiter issue. That's going to strike a chord with people that--I think it reinforces the Obama view of a certain elitism, more connected to the Harvard faculty lounge than Main Street.

MR. GREGORY:  Yeah.

MR. MURPHY:  And the idea that the Harvard Law School's a place where you don't want military recruiters is going to be very troubling, I think, to a lot of people.

MR. GREGORY:  But, Jonathan, the argument was she wanted everybody to be able to serve in the military.  How is that anti-military?

MR. ALTER:  Yeah, you know, she, she took a very strong line against the "Don't ask, Don't tell" policy.  She was basically just continuing the policies of her predecessors.  I agree with Mike, I think this is going to come up.  This whole question of Obama's relationship with the
military is something that I write a lot about in my, my book, and there was actually a showdown between the president and the Pentagon brass over perceptions that there was insubordination during the debates over Afghanistan...

MR. GREGORY:  Mm-hmm.

MR. ALTER:  ...last fall.  And I--and the president pushed back very hard. And this all--none of this came out at the time, but this is something that, in the Afghanistan section in my book, I focus on.  I think that there, there is some tension there that remains, that by and large he gets along pretty well with the military, but that this kind of issue could rub some of that raw.

MR. GREGORY:  The, the issue also of Bork, which Mike brought up, Peggy, if you go back to those hearings, he was known for being an outspoken judge.

MS. NOONAN:  Yeah.

MR. GREGORY:  He came into those hearings and he said what he thought. Shows you what good that did him in terms of what the opposition was against him. But here, with Kagan, you do have particularly liberals who want to explore her views about executive power and whether she is closer to the Bush administration when it comes to how--what, what power the executive has over detainees, over who gets, you know, their day in court, etc.

MS. NOONAN:  Mm-hmm.  Look, I think that since the Bork hearings it has been very hard for young lawyers who want to go forward in the judiciary to realize anything but this.  If you are colorful, if you are interesting, if you are forthcoming and share your thoughts and philosophy and views on the way up, when you get to your confirmation hearing for the court, they will put a noose around your head, hanging you with every interesting thing you've ever said. I, I happen to think the Senate Judiciary Committee has not done a good job of vetting and bringing out the thoughts of, of Supreme Court nominees for a long time. I think they should change.  Let those nominees be forthcoming, let them speak.  And I think this whole sense we've got that you can't say anything interesting on the way up ought to just go away.  Oliver Wendell Holmes today would not be allowed on the U.S. Supreme Court because he said such fabulous, interesting things.

MR. SHRUM:  He wouldn't have, he wouldn't have to have a confirmation hearing, Peggy, because they didn't have them in those days.

MS. NOONAN:  Well, fair enough.  Fair enough.  But we do have them now, and they ought to summon thought, and they ought to respect individuality and taking a different view, and creativity, frankly.

MR. SHRUM:  Well, look, here's what should...

MS. NOONAN:  Those things shouldn't kill you.

MR. SHRUM:  Go ahead.

MR. ALTER:  I was just going to say that Barack Obama, during the Sotomayor preparations, he actually said in the Oval Office, "I would not be confirmed for the Supreme Court with the system that we have right now." That's how out of control the whole vetting process has gotten.

MS. NOONAN:  Yeah.

MR. SHRUM:  But we have to understand--here's what's going to happen--and this isn't going to change much, as Peggy might wish it to or I might wish it to--the senators are going to ask their questions.  The nominee, as usual, is going to give carefully rehearsed answers.  They're going to be as noncontroversial as possible.  Then the process is going to move forward.  I, I do quarrel with the rewriting of history to explain this. Robert Bork's real problem, in my view, was that he had condemned the Supreme Court decision outlawing the poll tax; he had condemned the one person, one vote decision; he had condemned the decision striking down restrictive housing covenants; and he had called the public accommodation section of the Civil Rights Bill in 1964...

MR. MURPHY:  This is an illustration...

MS. NOONAN:  Bob, yeah, this is like what happened.

MR. SHRUM:  ...disgraceful.  He was out of the mainstream.

MS. NOONAN:  That is one way to put it.

MR. GREGORY:  All right.  My final point on this, because I don't want to talk politics.

MS. NOONAN:  Yeah, yes.

MR. MURPHY:  This is an illustration of what's gone wrong but also what's going to happen.

MR. SHRUM:  Yeah.

MS. NOONAN:  Yes.  Senator, I disagree!

MR. MURPHY:  Obama's going to get his judge, and Republicans are going to scorn the politics.

MR. SHRUM:  But no one who...

MR. GREGORY:  OK.

MR. SHRUM:  ...no one who says the poll tax ought to be upheld is going to be confirmed, is my point.

MR. GREGORY:  All right, let me, let me get in here.

MS. NOONAN:  Sit him down and talk to him and summon his thoughts.  Don't just make accusations...

MR. SHRUM:  I, I agree.

MS. NOONAN:  ...and say, "You're over."

MR. SHRUM:  Well, these weren't accusations, these were facts.

MS. NOONAN:  The accusations against Bork came within 45 minutes of the announcements of his nomination.

MR. SHRUM:  Yes.

MR. GREGORY:  All right.  I'm going, I'm going to get in, I'm going to get in here because...

MR. SHRUM:  And he confirmed them, actually.

MR. GREGORY:  ...we're not going to relitigate Bork.  We are going to talk about the politics of the moment.

MR. SHRUM:  No, but the right loves to use it.

MR. GREGORY:  But I want to talk about--Mike, before we talk about some of the key races coming up on Tuesday, I want you to frame what we're seeing here.  And the big question is, what is driving--who or what is behind this anti-incumbent wave?

MR. MURPHY:  It's pretty simple, and it's, it's in both parties.  People think Washington doesn't work.  They think a politician, many of them voted for in the last presidential election to fix Washington, didn't fix it.  They think the government's out of control, and they think politicians are incompetent. So this is an election year where it's a really bad idea to be a professional politician in either party.  And I think on Tuesday, we're going to see Arlen Specter, and I won't go through all the races yet...

MR. GREGORY:  Yeah.  Well, I'll do that.  You set me up nicely.

MR. MURPHY:  Yeah.

MR. GREGORY:  Let's talk about--let's start in Pennsylvania.  Senator Specter, he flipped, of course, and is now a Democrat, used to be a Republican.  He's up against Congressman Joe Sestak in a race that is close, although there's a new poll that's come out that has Sestak ahead by 7.  This is one of the big thrusts of the argument that Sestak is making.  He did it in an ad that he's put together against Senator Specter.

(Videotape, Joe Sestak political ad)

MR. JOE SESTAK:  I'm Joe Sestak, the Democrat.  I authorized this message.

SEN. ARLEN SPECTER:  (From video) My change in party will enable me to be re-elected.

Narrator:  For 45 years, Arlen Specter has been a Republican politician.

PRES. GEORGE W. BUSH:  (From video) Arlen Specter is the right man for the United States Senate.  I can count on this man.  See, that's important.  He's firm ally.

Narrator:  But now...

SEN. ARLEN SPECTER:  (From video) My change in party will enable me to be re-elected.

Narrator:  Arlen Specter switched parties to save one job--his, not yours.

(End videotape)

MR. GREGORY:  As a practitioner of the dark art of politics, you have to like that ad.

MS. NOONAN:  Oh!  Oh!

MR. MURPHY:  It has a good message, which is he's only half a Democrat and he's all a politician.  I think he's done.

MR. GREGORY:  You think he's done.  Bob?

MR. SHRUM:  I think he is, too.  Look, he thought his whole card was Obama. This ad, which is quite brilliant, reassociates him with Bush.  He has one hope, and that is the safety net of Philadelphia.  Ed Rendell, when he was running for governor in that primary, lost almost every
county in Pennsylvania in 2002, ran up huge margins in Philadelphia.

MR. GREGORY:  And I've been told the governor still thinks he'll, he'll eke it out, like Senator Schumer said, "by a little."

MR. SHRUM:  Well, but did you see...

MR. MURPHY:  I wouldn't want to be around.  I'd be running for the tall grass on this.

MR. SHRUM:  But did you see when, when Schumer said, "by a little" bit, he kind of looked down at the table.

MR. ALTER:  Can I say something nice about Senator Specter?  He's an ornery guy, not the most popular guy in the Senate.  He's going to lose. But in the stimulus debate, when it really counted, what did he hold out for?  A doubling of funding for cancer research.  Now, maybe because he's a cancer survivor, I'm a cancer survivor, this takes on more importance for us.  But I think there are a lot of viewers out there now who are going to thank Senator Arlen Specter for that in the years ahead.

MR. GREGORY:  Let's talk about Arkansas, another tough race for an incumbent, and that's Blanche Lincoln.  She's up against Bill Halter, the lieutenant governor.  Now, she's ahead what looks like to be 10 points. The issue here is she's not running at 50 percent.  She needs 50 percent for a runoff here.

And as the National Journal showed, Peggy, on its cover, that Lincoln is learning that being a centrist in the Senate is offering her little refuge from attacks on both the left and the right.  A centrist Democrat right now is being pressed and squeezed pretty hard because of health care and other issues.

MS. NOONAN:  Yeah.  I remember a few months ago, she had a, a meeting, the Senate Democrats had a meeting with President Obama, and she stood and almost pleaded with him to understand the position of centrist, moderate Democrats.

MR. GREGORY:  Mm-hmm.

MS. NOONAN:  And he kind of stiffed her.  He kind of said, "I'm doing what I'm doing." She's in trouble.  One gets the impression it's not going to work for her.  Again, she is an incumbent.  She does not have the part of her party that needs to be on fire, on fire.

MR. GREGORY:  She's being attacked from the left by the unions, Bob.

MS. NOONAN:  Yeah.

MR. SHRUM:  Right.  Yeah.  Look, she has to get to 50 percent to avoid a runoff.  She is being attacked from the left.  But her other problem is that--and this is sort of spreading throughout Arkansas and the electorate--she has a very bad approval/disapproval, she runs much more
weakly than Lieutenant Governor Halter does against the respective Republican nominees.  And I think that if she goes into a runoff, which is likely, she'll probably lose it.

MR. GREGORY:  Just a couple more to get through here.  Talk about Kentucky, Mike Murphy, we did it with Senator McConnell.  You've got Trey Grayson and Rand Paul.  Rand Paul has the strength of that tea party behind him here, and McConnell has not been able to help the
establishment candidate.

MR. MURPHY:  Yeah.  It's a classic case of kind of the, you know, the pushback because Grayson is not a Washington politician, but he's a local politician.  I think Paul will probably win that primary.  He's ahead in the polls.  I think he'll win the general, too, but it'll be a little closer, Grayson's the tougher general election candidate.

MR. GREGORY:  Pennsylvania 12, this was John Murtha's seat, and a lot of people are watching this, it pits right now, Tim Burns, a Republican, against Mark Critz.  This is a more culturally conservative, blue-collar southwest Pennsylvania district.  A Democrat, Murtha, has been there for years.

But, Jonathan, both parties looking at this to say either they're slowing the momentum if the Democrat wins or Republicans are saying, "Hey, this is the kind of seat that will spell the end of the majority for Democrats."

MR. ALTER:  Well, we could see the return of what they used to call the "Reagan Democrats." You know, these are lunch-bucket, white working-class Democrats who have--went back with--they did go for Obama, not in as great numbers as they went for John Kerry, but they, they could conceivably trend back to the Republican Party.  Something that the Democrats have going for them, though, I think we're seeing in, in Blanche Lincoln's race, where she is moving against Wall Street, and that's also resonating.  So just beating up on government is no longer
cutting it when people are now increasingly mad at not just Wall Street, but the oil companies and big business in general.

MR. GREGORY:  Final thing I want to look at, Peggy and Mike, John McCain in a tough re-election battle.  He's got a primary challenger in J.D. Hayworth, and the issue is the politics of immigration.  This is the ad that he is running.  Watch this.

(Videotape, McCain political ad)

SEN. JOHN McCAIN:  (To sheriff) Drug and human smuggling, home invasions, murder...

SHERIFF PAUL BABEU (Pinal County, Arizona):  We're outmanned.  Of all the illegals in America, more than half come through Arizona.

SEN. McCAIN:  Have we got the right plan?

SHERIFF BABEU:  Plan's perfect.  You bring troops, state, county and local law enforcement together.

SEN. McCAIN:  And complete the dang fence.

SHERIFF BABEU:  It'll work this time.  Senator, you're one of us.

(End videotape)

MR. GREGORY:  And yet it was John McCain who, who sponsored comprehensive immigration reform.

MS. NOONAN:  Yes.  Oh, the "dang" was the worst part of that.  Complete the dang fence.  It--I, I don't know its impact.  It, it seems desperate.

But...

MR. ALTER:  Did he have to round up and deport his principles in this race? It's just kind of a sad comment.

MR. MURPHY:  But let me--let me...

MR. GREGORY:  Thirty seconds, go ahead.

MR. MURPHY:  It's a lawless frontier because of the failure of the Obama administration to protect the American border.

MS. NOONAN:  Yes.

MR. MURPHY:  People are getting killed and murdered.  It has become really bad in Arizona.  This came...

MR. GREGORY:  Right.  This goes back before Obama, though, to be fair.

MR. MURPHY:  It--but it's gotten, it's gotten worse and worse.

MS. NOONAN:  But it has gotten worse.

MR. MURPHY:  It's a crisis the Obama people have failed to address. They've had a year to do something, they've done nothing.  McCain's standing up for his constituents there.

MR. GREGORY:  Do you think we'll see comprehensive immigration reform or is that not ripe yet?

MR. MURPHY:  No.  Democrats don't really want it.

MR. SHRUM:  No.  But let me tell you what's going to happen.

MR. GREGORY:  Real quick.

MR. SHRUM:  Republicans are going to campaign against this, they're going to do anti-Hispanic stuff, they're going to make it impossible to win the presidency because they can't win it without 40 percent of the Hispanic vote.

MS. NOONAN:  Neither party wants to close that border.

MR. GREGORY:  That's going to be the--that's going to be the last word. Thank you all very much.  We're going to leave it there.  But we're going to continue our discussion with Jonathan Alter in our MEET THE PRESS Take Two Web extra.  You can also read an excerpt from the book, "The Promise: President Obama in Year One," and find updates from me throughout the
week.  It's all on our Web site at mtp.msnbc.com.

Up next, our MEET THE PRESS MINUTE.  A fourth woman could soon sit on the Supreme Court, but 39 years ago, it was a very different story.  We look back at the debate over why a woman was not nominated that time around, after this brief station break.

(Announcements)

MR. DAVID GREGORY:  And we are back with our MEET THE PRESS MINUTE.  If confirmed, Elena Kagan would become the nation's fourth woman ever to serve on the Supreme Court.  President Reagan appointed the first woman, now retired Justice Sandra Day O'Connor to the high court back in 1981. Ten years earlier, then President Nixon was tasked with filling two
Supreme Court vacancies.  California Judge Mildred Lillie was under consideration for the second spot; and more than 50 years after women were granted the right to vote, many had hoped a woman would finally get her due.

But on October 21, 1971 the president nominated William Rehnquist for the job.  Later that week, Patricia Roberts Harris, the chair of the powerful Credentials Committee for the Democrats' 1972 convention and a former dean of Howard University Law School, appeared right here on MEET THE PRESS and spoke about why she believed a woman should have been
nominated.

(Videotape, October 24, 1971)

MS. MARIANNE MEANS:  Mrs. Harris, the Nixon administration indicated that a woman was not picked for the Supreme Court because discrimination in law schools, in law firms has been so great there was such a small pool of talent available.  Is this a valid excuse?  Are there really no qualified women who could have met Mr. Nixon's criteria?

MS. PATRICIA HARRIS:  I do not believe it is a valid excuse, Ms. Means. The president went to the Department of Justice for one of this candidates, and with--in my direct knowledge there is in that department a superbly well-qualified woman who is head of the appeals and research
section of the criminal division.  Comes to my mind immediately.  And there are many others who are available because of the paucity of women in law, the outstanding women are apparent.  There's Constance Baker Motley in, in New York.  And I think that there are outstanding candidates who might well have been picked for that spot.

(End videotape)

MR. GREGORY:  Speaking this week at Kagan's nomination ceremony, President Obama said he relished the prospect of having three women on the high court for the first time in history, saying the bench would "be more inclusive, more representative, more reflective of us as a people than ever before." And we'll be right back.

(Announcements)

MR. DAVID GREGORY:  That's all for today.  We'll be back next week.  If it's Sunday, it's MEET THE PRESS.

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