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'Countdown with Keith Olbermann' for Wednesday, May 12, 2010

Publication Date: 
May 12, 2010
MSNBC - Countdown with Keith Olberman
Keith Olberman

Lecturer Thomas Goldstein talks to Keith Olberman about U.S. Supreme Court nominee Elena Kagan. The video segment was on MSNBC's Countdown with Keith Olberman:

Guests: Tom Goldstein, Ezra Klein, David Corn, Markos Moulitsas, Richard


OLBERMANN: Let‘s turn now to Tom Goldstein, a veteran Supreme Court litigator and founder of you for some of your time tonight, sir.


OLBERMANN: How important are these meetings actually between the Supreme Court nominee and the senators who are ultimately going to vote on his or her nomination?

GOLDSTEIN: Well, all the Democrats except Arlen Specter I think you can count on as being locked in. There‘s a handful, maybe 10 moderate Republicans that this could actually influence whether or not they would vote for her. Beyond that, what it matters for is the tenor of the debate. If—even the more conservative Republican senators at least respect her, think she‘s really smart, that she‘s being respectful, that she‘s not extremist. Then it‘s unlikely to turn into a thermonuclear war in the Senate which has a thread of respect left in it.

OLBERMANN: Well, then, give—Mr. Sessions that we‘re seeing there, his statement about—implying I guess that Thurgood Marshall was an activist judge. Put that: “A,” in Supreme Court history, and “B,” in the context of how these meetings with the senators are going for the solicitor general.

GOLDSTEIN: Well, I would say that with respect to Senator Sessions, Senator McConnell, who are judicial conservatives, they—after careful study—they realized she had been nominated by Barack Obama and decided to vote against her. They—you know, that‘s just their perspective. Nonetheless, I do think that they‘re probably actually serious about having a respectful process when she‘s going through the Senate; that they don‘t intend to try and muck up the process, they do think it should move along. I think they‘re speaking more to their base than they are really a genuine criticism of the nominee.

OLBERMANN: By taking to the floor of the Senate though an hour and a half before his meeting with her, did the minority leader give the impression that he was prejudging Ms. Kagan?

GOLDSTEIN: Well, I think he just has a perspective on Democratic nominees. I think that anybody that came out of that meeting with—standing between the vice president and President Obama, he was going to have pretty of the same take. I don‘t think he‘s—finds it necessary to learn a lot more about her than that she was appointed by a Democratic president. Now, remember, there were Democrats who had the same view with respect to President Bush. So, there—it is fair to remember that there are that sort of six to 10 Republicans, people like Lindsey Graham, maybe Orrin Hatch, the women senators from Maine. There are some votes that are in play here that will decide whether it‘s 65 or 70 that she gets.

OLBERMANN: But to that point of experience, Sam Stein from the “Huffington Post” compared the resumes of Kagan and William Rehnquist before Rehnquist ascended to the court and he concluded that Rehnquist—the quote is—“would be considered something of a novice by the standards some are applying to Kagan.” What does that do to the—and this is not the first time the word “thin” has been used, but Senator Sessions used it today—what would they what does that do to the Sessions claim that her experience is thin?

GOLDSTEIN: The argument is thin, I suppose. William Rehnquist was in the Office of Legal Counsel, part of the Department of Justice. He‘s a conservative hero for goodness sakes, became an historic chief justice. Elena Kagan, dean of the Harvard Law School, solicitor general of the United States, two of the highest positions in all of the law, to turn around and then say, well, you know, I just don‘t know she‘s qualified for the job comes across as a little silly.

OLBERMANN: And let me get back to Thurgood Marshall. Why invoke him in those—in those negative terms even by extension and certainly he‘s not—I don‘t know anybody who‘s on the history of the court who would label him an activist judge.

GOLDSTEIN: Well, so a couple things about that—it is really weird to say what we want is someone who has a lot of experience litigating. I don‘t want you to be like Thurgood Marshall. He‘s one of the great litigators in American history. Thurgood Marshall was part of the civil rights revolution—something to which conservative Republicans really think was activist by the Warren Court, even the Burger Court. And they do object to that kind of law. But Thurgood Marshall is a historic figure. Elena Kagan says that she learned an awful lot from that position. She was exposed to the Supreme Court as a law clerk and having been there. It‘s not the end of the world, but it‘s a—you know, it‘s a legitimate part of the body of her qualifications. Having clerked at the Supreme Court, been the dean, been the solicitor general, having worked in the White House both as a lawyer and in the policy shop, it‘s really hard to make the case that this woman is unqualified.

OLBERMANN: Tom Goldstein of—great thanks for your insight and thanks for your time tonight.

GOLDSTEIN: Thanks so much for having me.