TODAY   |  June 28, 2010

Senators debate Kagan’s confirmation

Sen. John Cornyn, R-Texas, and Sen. Amy Klobuchar, D-Minn., discuss whether Solicitor General Elena Kagan should become the third woman to sit on the bench of the Supreme Court.

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This content comes from a Full-Text Transcript of the program.

LAUER: Oh, that's sad news. Pete , thank you very much for you report. Republican Jon Cornyn of Texas and Democrat Amy Klobuchar of Minnesota are both members of the Senate Judiciary Committee , which is holding Kagan 's confirmation hearing. Senators, good morning to both of you.

Senator JON CORNYN (Republican, Texas): Good morning.

Senator AMY KLOBUCHAR (Democrat, Minnesota): It's great to be on. Thank you.

LAUER: Thank you, good to have you here. Senator Cornyn , let me start with you. Some Republicans are questioning whether Elena Kagan can separate herself from her political views , which of course would be necessary if she's to be a neutral arbiter on the Supreme Court . You have a unique perspective on this because you were a justice on the Texas Supreme Court a while ago. So were you able to do it?

Sen. CORNYN: Well, I was a judge for 13 years in the state court system in Texas , and I know from experience that you have to make a conscious effort to separate yourself to play that unique role of a -- of a judge. The challenge we have here is that Ms. Kagan has absolutely no track record. As Pete Williams points out, she's the first nominee who hasn't been a judge in almost 40 years. That's not a...

LAUER: Yeah, but let me interrupt -- back to...

Sen. CORNYN: That's not a disqualifier, but it is -- but there's no evidence.

LAUER: OK, but back to my question. Do you think she is able to distance herself from her political views , and were you able to do it on the bench?

Sen. CORNYN: Well, I think I was. And I think she could, but I think we need to ask her about that. She showed -- when she was a law clerk to Thurgood Marshall , she expressed no sympathy, she said, to claims of the -- Second Amendment claims, right to gun ownership by law-abiding citizens, and I don't think a judge ought to be acting based on sympathy, but rather upon fidelity to the law.

LAUER: Let...

Sen. CORNYN: And that's what we need to ask her about.

LAUER: Senator Klobuchar , let me bring you in on this. She did serve as a year as -- or for a year as a legal policy adviser to President Clinton , and I guess, as part of her job description, did express political opinions. So is this an issue, is it a weakness, or is it a smoke screen?

Sen. KLOBUCHAR: You know, I think you have to look at her whole career, Matt , and you look at everything she's done. That was one year. But she managed a major institution, Harvard Law School , she was a teacher, she was in the private sector. And even when you look at the year she spent -- look, Sandra Day O'Connor , recognized as a great justice, she was actually the Senate majority leader, the Republican Senate majority leader in Arizona . As you just mentioned, my esteemed colleague over in Texas , he's done both jobs and have been able to separate them. So I really think what you need to look at is, is Elena Kagan qualified to do this job? Is she competent? And I believe at the end of the hearings it's going to be very clear to the American people that she is.

LAUER: Let me just call your attention, Senator, to something that was in your hometown newspaper, a snippet from a Republican press release that has

you saying the following: quote, "If we just put judges on the court that have handled no difficult cases, that haven't been in the arena, or people who've never been judges and so they didn't have those difficult decisions, I don't think we'd have a strong judiciary." So are you concerned about her lack of experience? Does it weaken the court in general?

Sen. KLOBUCHAR: Not one bit. I was actually referring to the fact that a certain nominee was being attacked because he had handled a difficult case. I was making the point that you have to be able to accept the people and -- that have been on the court and that have handled difficult cases. In this case, I welcome, as Justice Scalia actually said back in May, someone that doesn't have judicial experience on that Supreme Court . Here you have got people who've all been judges before...

LAUER: Right.

Sen. KLOBUCHAR: ...been out of that judicial monastery. The fact that she's had some real-world experience, that he -- she's been -- had to be out there on the front line making nitty-gritty decisions about whether to compromise, what works, what are the repercussions of public policy, you know, maybe we wouldn't have had the Exxon Valdez fishermen have their -- all of their damages dashed down from something like...

LAUER: Right.

Sen. KLOBUCHAR: ...5 billion to $500 million. If people had thought through that in the back room and you had someone who had the ordinary experiences of life.

LAUER: Senator Cornyn , I want to change subjects dramatically for a second. I just, I wonder if you could give me your reaction to the passing of Senator Byrd , your colleague, the longest-serving member of Congress ever, just your thoughts this morning.

Sen. CORNYN: Well, of course we're saddened by his passing. We knew that the time was drawing nigh. But Senator Byrd was the keeper of the flame here in the Senate . He believed in the Senate as an institution, he believed in the constitutional role of the Senate , not to be a rubber stamp for the -- for the president, and he believed fiercely in his state and his constituents there. We will miss him. And I think the Senate has lost a great champion.

LAUER: Well, Senators Cornyn and Klobuchar , thank you for your time. Good luck with the hearing today.