Bork to publicly oppose Kagan for high court

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   OLBERMANN: The more authentic debate about whether Elena Kagan is the correct choice for the Supreme Court is brewing among progressives. We will stage it in miniature with two guests -- next.

   In our fourth story: It might be summed by Senator Tom Harkin , quoting, "Why did the conservatives always get the conservatives but we don`t get the liberals? What the hell is that all about?" -- unquote. Senator Harkin said that while Solicitor General Kagan was merely being considered as President Obama `s choice. Since the actual nomination , the sentiment is growing and with more specificity, from Glenn Greenwald , quote, "I believe Kagan `s absolute silence over the past decade on the most intense constitutional controversies speaks very poorly of her. Many progressives argued and I certainly agree that the Bush / Cheney governing template was not only wrong, but a great threat to our political system and the rule of law . It`s not hyperbole to say that it spawned a profound constitutional crisis ." But Kagan `s supposed silence on such issues has been disputed. As we noted yesterday, in 2005 , she and three other deans of major American law schools wrote to Senator Patrick Leahy to oppose legislation proposed by Senator Lindsey Graham that would have stripped courts of the power to review detention practices. Quoting that letter, "The American form of government was established precisely to prevent this kind of un-reviewable exercise of power over the lives of individuals. When dictatorships have passed similar laws, our government has rightly challenged much acts or such acts -- rather -- as fundamentally lawless." Meantime, Republican leaders may be settling on their lines of attack from the ranking Republican on the Senate Judiciary Committee , Jeff Sessions .

   SEN. JEFF SESSIONS , SENATE JUDICIARY COMMITTEE: The nominee has thin experience , has had some very aggressive political views in her life. It`s going to be critical that whoever puts on the robe of the Supreme Court justice , that they be committed to following the law even if they don`t like it, even if they wish it had been different.

   OLBERMANN: First part sounded like a little bit of a self-description by the senator. GOP op senators say they want to see Kagan `s memos from her time as domestic policy adviser to President Clinton since her public record is -- as they put it -- so thin. Let`s turn to MSNBC political analyst , " Huffington Post " contributor, Lawrence O ` Donnell , who supports the Kagan nomination . Lawrence , good evening . LAWRENCE O`DONNELL, MSNBC POLITICAL ANALYST: Good to be here, Keith .

   OLBERMANN: And let`s bring in Thomas Jefferson School of Law professor, Marjorie Cohn , who opposes the Kagan nomination . Good evening to you.

   MARJORIE COHN, THOMAS JEFFERSON SCHOOL OF LAW: Good evening , Keith .

   OLBERMANN: Professor, let me start with you. The kind of executive power that was expanded under the Bush administration , some of it continued under the Obama administration . In your assessment, how does Solicitor General Kagan fare on that topic?

   COHN: Well, there were policies during the Bush administration that led to the torture and abuse of prisoners, indefinite detention of men and boys in small cages at Guantanamo without charges, spying on Americans without warrants, the use of military commissions , using the state secrets privilege to keep people who had been tortured out of court . And, quite frankly , Kagan agreed with Lindsey Graham last year during her confirmation hearing for solicitor general when she said that she agreed that we were at war. And, of course, this war on terror is a misnomer. Terrorism is a tactic. It`s not an enemy. You don`t declare war on a tactic. And she agreed that whole world is a battlefield and that prisoners could be held indefinitely. That`s very, very alarming.

   OLBERMANN: Lawrence , to that point by the professor, was that statement by the then-nominee for solicitor general -- was that her opinion, was it per her statement of accepted law, was it an assessment of fact -- what was it, in your opinion? O`DONNELL: Well, Keith , based on my experience in Senate confirmation hearings, I would say it was a statement to get through the hearing. It was a very general statement in response to a general comment made by Lindsey Graham . I don`t think there`s enough in it to tell us how she will rule on relevant cases in that territory. And that`s what this is all about. We get into this guessing game about what -- how someone is going to perform as a Supreme Court justice using little tiny clues of evidence here and there in their background. And this is a new game. It`s a modern game . We`ve been wrong at it a lot. I know that Marjorie is a great fan of Justice Stevens who`s being replaced here, who`s considered the great liberal on the court . Now, he was a Nixon judge. Richard Nixon made him a federal judge and Gerry Ford made him a Supreme Court justice . And I assume, Marjorie , you were opposed to his nomination at the time that he was raised to the Supreme Court ?

   COHN: I think I was pretty young then, so I can`t quite remember. But, just -- look, you had Bush appointing Souter , you have Obama pointing Kagan who is basically an unknown quantity -- and you`re right, we have to look at clues because she has such a paucity of a record . She hasn`t been a judge which doesn`t disqualify her. She hardly practiced law . And for someone who has been an academic for almost 20 years at two of the nation`s leading law schools , Chicago and Harvard , she wrote almost no legal scholarship about the important constitutional issues of the day. So, we have to guess at where she comes down.

   OLBERMANN: Lawrence , that does beg a significant point -- as Senator Harkin pointed out, why does it that seem -- and this is a great frustration of progressives particularly at the moment -- why does it seem as if -- as he put it -- the conservatives get conservative nominees to this court and liberals or progressives get question marks? O`DONNELL: Well, the conservatives have often been fooled -- as often as they have been satisfied by what they got. And they were fooled by Justice Stevens . They were fooled by Souter . And it is true the liberal moving through the confirmation process is politically considered more risky than the conservative. And that is the -- that is the accepted wisdom, the conventional wisdom within the Senate on getting these confirmations done. So, Elena Kagan has, I think, very deliberately through her career kept her own counsel on anything that would be controversial in this hearing. When we first discussed this vacancy, Keith , when it first opened up, I said at that time that there are these Manchurian candidates out there now who have very deliberately hid what they think so that they can build a career that allows them to get through this very tortured and very modern confirmation process that we did not used to have as recently as the pre-television age.

   OLBERMANN: Professor, are there -- are there things about this choice, this nomination , that are on-the- record that you have objections to? Is there -- is there even might be a thin Senator Sessions ` term of her experience , it might be thin -- but is there enough there to go on? And might these hearings pertain -- what in these hearings might pertain to any such objections on your part?

   COHN: Well, during her solicitor general confirmation hearing, she said, quote, " The Constitution generally imposes limitations on government rather than establishes affirmative rights, and thus, has what might be thought of as a libertarian slant. I fully accept this traditional understanding." Well, has she read the Constitution lately? There`s a right to counsel. There`s a right to jury trial . There`s a right to petition the government , and on and on and on . And that`s very, very worrisome. She also said at another point, I don`t think there`s a constitutional right to same-sex marriage. She counseled President Clinton to ban late-term abortions. I think that pro- choice people should be very, very worried about this nomination . And in terms of what I would like to hear her say at the -- at the confirmation hearing, the right-wingers are unabashed. They`re right-wing ideologues. They`re not just neutral cautious moderates. I mean -- and they clearly have a judicial philosophy .

   I would love to hear her say: my judicial philosophy is that human rights are more sacred than property interests. My judicial philosophy is that everybody has a right to self-determination, other countries, women over their bodies, people about who they`re going to marry. Those are the kinds of things that I would really like to hear her say at the confirmation hearing, and she`s not going to because, as you say, she has been hiding who she is all this time. When Bush was overreaching in an unprecedented way, law professors all over the country were speaking out, were writing, were complaining, were objecting -- Elena Kagan was silent. That speaks volumes.

   OLBERMANN: Professor Marjorie Cohn from the Thomas Jefferson Law School , author of "Cowboy Republic: Six Ways that Bush Gang Has Defied the Law "; and Lawrence O ` Donnell of MSNBC and the " Huffington Post " -- great thanks for the debate and for keeping it civil.

   COHN: Thank you, Keith . O` DONNELL : That

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