BARACK OBAMA, PRESIDENT OF THE UNITED STATES: -- accolades from across the ideological spectrum.
BLITZER: Who is Elena Kagan. Liberal? Conservative? Or somewhere in between?
ELENA KAGAN, U.S. SOLICITOR GENERAL: I am honored and I am humbled by this nomination and by the confidence you have shown in me.
BLITZER: Can the nominee who has never been a judge be confirmed? Those who know her are here with answers.
We begin with President Obama's pick for the United States Supreme Court. Let's get right to it with Josh Gottheimer. He's the executive vice president of Burson-Marsteller. He worked closely with Elena Kagan during the Clinton presidency. He was a student at Harvard when Kagan was dean of the law school there.
Professor Geoffrey Stone was dean at the University of Chicago's law school when Kagan taught there.
And Al Alschuler, professor of law at Northwestern University. He taught with Elena Kagan and Barack Obama at the University of Chicago.
Gentlemen, thanks to all of you for coming in. I want to pick your brain on what she's like, what she's all about.
Josh, let me start with you. You worked with her in the Clinton White House. What's she like?
JOSH GOTTHEIMER, WORKED WITH KAGAN IN CLINTON ADMINISTRATION: Smart as a whip, fair, progressive, and, you know, we worked closely together on tobacco and tobacco legislation, how to keep it out of the hands of kids and, you know, standing up against hate crimes. I would tell you that she's incredibly fair. And at Harvard where she was my dean, continued to show that you can build consensus and do the right thing.
BLITZER: When you say progressive -- is that -- like a liberal you mean?
GOTTHEIMER: No, no. I think that -- I would say that on all of these issues, she's always stood up for ordinary Americans. And I think the president talked about that one when current justice retired and I think that she's going to continue to hold that torch.
BLITZER: Professor Stone, you were with her at the University of Chicago. What impressed you?
GEOFFREY STONE, WAS KAGAN'S DEAN AT UNIV. OF CHICAGO: Well, Elena is smart. She's tough-minded. She's independent. She was a spectacular teacher.
Right from the get-go when she begun as an assistant professor, she enlivened the students. She used Socratic methods in a very demanding way. She demonstrated real wit. And she was a terrific. I think Elena is a great lawyer and I think she'd be a terrific Supreme Court.
BLITZER: A lot of people, Professor Stone, say they don't know what her personal views are on some of the more sensitive issues out there. Did she advertise those views to you?
STONE: I think the better way of thinking about Elena is to look at some of her early writing, which was mostly about the First Amendment. And in that writing, what you see is somebody who's interested in addressing and solving analytical legal problems in a non-prejudged way. And I think that's basically Kagan.
I mean, she's interested in grappling with difficult legal issues and she doesn't have an ax to grind. One of the early articles, for example, on the issue of hate speech, she came out and enthusiastically endorsed the conclusion reached by Justice Scalia in a very controversial five-four decision, taking the position that at the time certainly would not have been regarded as the liberal view.
So, I think Elena really is a pragmatist and she's a serious legal thinker, and she's not in any way an ideologue.
BLITZER: Professor Alschuler, you taught at the University of Chicago when she taught there and Barack Obama was a young law professor there as well. Talk a little bit, if you can, about the differences between Barack Obama as a law professor and Elena Kagan as a law professor.
AL ALSCHULER, TAUGHT WIT HKAGAN AT UNIV. OF CHICAGO: Well, Elena Kagan got higher ratings, although Obama might have been the second most popular teacher in the school. And then came Stone and, you know, I was way down there somewhere.
No, the students loved her because she is just such a warm and generous and outgoing person. She showed a lot of concern about them at the same time she was demanding a lot from them. And that's -- you know, that's I think the key to her leadership in places like Harvard.
BLITZER: What did she teach?
ALSCHULER: She taught the constitutional law and administrative law.
BLITZER: She knows the kind -- and he taught -- Barack Obama taught constitutional law as well. Is that right?
ALSCHULER: That's correct.
BLITZER: So, was it exactly the same subject or different aspects of constitutional law?
ALSCHULER: Well, I think Elena specialized more in the First Amendment and President Obama taught a separate course -- he taught the basic constitutional law course and also taught a course on race in the law.
BLITZER: Josh, when you worked with her at the White House for President Clinton, she was not a lawyer. She worked in policy -- domestic policy.
GOTTHEIMER: That's what I did. She was also a lawyer earlier. BLITZER: Earlier, she was an associate counsel in the legal office, in the counsel's office. But when you worked with her, she was a policy adviser?
GOTTHEIMER: Exactly. She focused on policy-making and helping advise the president on very important issues, like hate crimes and, obviously, a breadth of issues.
BLITZER: Well, was she very forceful, sort of meek, behind the scenes, out front? Talk a little bit about her style.
GOTTHEIMER: Well, as you heard before, she's really a consensus- builder and a pragmatist. It's exactly what I saw when I was at Harvard with her. She is incredibly popular with the students. But also, you know, fighting for things she believed in. She fought hard for public interest. The biggest expansion of public interest at Harvard's --
BLITZER: You were there when she was the dean of the Law School?
GOTTHEIMER: Yes.
BLITZER: Was that the controversial period when she had the policy that U.S. military could not come to Harvard Law School to recruit law students?
GOTTHEIMER: It wasn't a controversial period. I think some Republicans are trying to make it controversial now.
BLITZER: But you were there at the time?
GOTTHEIMER: Yes.
BLITZER: Was it controversial.
GOTTHEIMER: It's definitely not controversial. Now, of course, people are talking about it now and manipulating it left and right.
BLITZER: We'll talk a little bit about that because to the person right now, they say why wouldn't she let the representatives from the Army, the Navy, the Air Force and Marine Corps come and talk to students?
GOTTHEIMER: What's clear that she always -- she always did. There was a policy -- anti-discrimination policy in place at Harvard which she enforced, which said that if you discriminate against race or sexual orientation, you couldn't come and recruit through career services. However, Dean Kagan at the time always allowed the military on to recruit. In fact, there were more people going into the military after the third year of law school than ever before going in during her tenure.
BLITZER: Professor Stone, because of the "don't ask, don't tell" policy which the U.S. military has and still in business right now, that you can't serve openly if you're gay in the United States military. Do you understand why this is a controversial issue that will come up during the confirmation hearings?
STONE: It should not be a controversial issue. At the time that we're talking about here, virtually every law school in the United States had a policy that prohibited employers from discriminating on the basis of race, religion, gender, sexual orientation, ethnic origin, disability and the like. And any employer who discriminated on those bases was not allowed to use the university's placement facilities and that included the military when they discriminated, as they still do, on the base of sexual orientation.
So, the policy that Harvard had when Elena was dean was not different from the policy that the University of Chicago had or Stanford had, or Columbia had or NYU had. It was the universal policy, of course, almost all schools in the country.
Turning this into an issue --
BLITZER: But we're talking -- correct me if I'm wrong. The elite law schools but not necessarily the state universities which have law schools as well.
STONE: No, it included the state universities as well. In fact, the American Association of Law Schools has a requirement for accreditation that schools follow the policy of nondiscrimination. So the only schools in the United States that did not exclude the military were those that had religious reasons for not doing so. All of the law schools who were accredited did have that policy, nothing unusual about Harvard in that regard.
BLITZER: Professor Alschuler, as you know, though, once that issue went before the Supreme Court, it was unanimously -- it was unanimously rejected by the U.S. Supreme Court and it had a chance.
ALSCHULER: Well, Elena did sign an amicus brief before the Supreme Court. It didn't argue that the Solomon Amendment was unconstitutional. It argued that it didn't apply. She argued that the law schools like Harvard were treating the military equally because they excluded all employers that discriminated. And as soon as the Supreme Court rejected that position, she allowed military recruiters on campus.
BLITZER: It's going to be a tough subject of questioning, no doubt, about that when she comes before the judiciary committee.
Professors Alschuler, Professor Stone, Josh Gottheimer -- guys, thanks very much for coming in.
We're only just beginning this conversation. Professor Anita Hill, she's standing by -- next.
OBAMA: Someone as gifted as Elena could easily have settled into a comfortable life in a corporate law practice. Instead, she chose life of service -- service to her students, service to her country, service to the law, and to all those whose lives it shapes.
BLITZER: President Obama praising the nominee for the United States Supreme Court.
Anita Hill is a professor of law at Brandeis University in Massachusetts. She's a former colleague of Justice Clarence Thomas, who made best be known for her controversial testimony at the 1991 confirmation hearings.
Professor Hill, thanks very much for coming in. Now, what impresses you about Elena Kagan?
ANITA HILL, PROFESSOR OF LAW, BRANDEIS UNIVERSITY: It's my pleasure, Wolf. I think what impresses me about her is really her tenacity. I think she has proven that she's quite up to challenges. After all, she was the first woman solicitor general, most recently; but before that, the first dean of the Harvard Law School.
And in each capacity, she has really done quite well and impressed a lot of very intelligent and talented people who haven't had a chance to work with her.
BLITZER: She's never been a judge. Should that be an issue at all in these confirmation hearings?
HILL: I think anything is on the table for discussion. But I also think that rather than looking at the fact that she hasn't been a judge as a negative, I see it really as a positive in that it really starts to open up the Supreme Court to looking at exceptional legal careers in different ways. There's more than one way, to be an exceptional lawyer, exceptional law scholar, an exceptional legal analyst, and to show that everyone has a keen understanding of the law as well as the experience of people outside of the, I guess, what they're calling now the judicial monastery.
BLITZER: She would be the third woman on this current court. I assume you'd be pretty happy about that?
HILL: I would be happy. I really, Wolf, am looking forward to one day when, you know, it seems rather normal or common for us to nominate women to the Supreme Court. And it doesn't seem like such a big deal. But we aren't there yet. And I think it's important that we start to show the country that we are open to different ways of looking at judicial leadership and in having a court that's inclusive.
BLITZER: But you know that if confirmed, she would only the fourth woman ever to serve on the Supreme Court. And there have been a lot of men there.
HILL: There have been an awful lot of men. We are slowly making progress. And I hope that we will continue to make progress.
What I do hope is that we don't get to the point where we start to get sort of panicked and say -- oh, well we've had three, we're over the history of the court. We've had four. So that's enough. We can now not pay any attention to that.
But one day, I do believe that we will, as I say, get to the point where it doesn't seem so out of the ordinary to nominate a woman.
BLITZER: Back in 1995, she was critical of the confirmation process as it had developed in recent years, that the nominees were ducking questions that senators weren't really asking the probing questions. She said the American public basically deserved better in the confirmation process.
Here's the question to you, Professor Hill: will those words come back to bite her now?
HILL: You know, I suspect that every word that she has said as a public official or every public comment that's she's ever made will possibly be used against her. You know, that's the nature now of the time that's we're living in.
But I also think that she probably voiced the frustrations of a lot of people who felt that the hearings were not getting to the substance of the issues. People are going to ask Elena Kagan hard questions. The Republicans are geared to ask her those questions. And I think she is up to the challenge of any questions that she raises.
And I rather suspect that given what I know of her, I don't know her, but what I've heard about her, she will probably look forward to the opportunity to address some of those questions and show what she is made of and why she is suited for the court.
BLITZER: As someone who testified and all of us remember in 1991, when you testified during the Clarence Thomas confirmation process -- give us some advice you would give her right now in preparing for these hearings.
HILL: Well, I would first say, you know, remember that you are exceptionally talented, you're exceptionally bright and that you are up to this task because you met -- had so many obstacles in your way in the past. I can say that having -- knowing she has been the first woman dean of the Harvard Law School and the first solicitor general, first woman solicitor general.
So, I would just say remember that you're up to the task. Prepare for the moment. And then go in and give it your best and most honest answer. And I think she will do just fine.
BLITZER: What I hear you saying is let Elena Kagan be Elena Kagan --
HILL: Absolutely. Absolutely.
BLITZER: -- before those United States senators.
HILL: Absolutely.
BLITZER: Anita Hill, thanks very much for coming in.
HILL: It's my pleasure.
BLITZER: We're going to continue our discussion of this Supreme Court nominee when we come back. David Gergen, James Carville and Bay Buchanan -- they're all standing by.
KAGAN: The court is an extraordinary institution in the work it does and in the work it can do for the American people by advancing the tenets of our Constitution, by upholding the rule of law and by enabling all Americans -- regardless of their background or their beliefs -- to get a fair hearing and equal chance at justice.
BLITZER: Elena Kagan, the president's Supreme Court nominee speaking today after the president introduced her -- probably not going to hear much from her until the confirmation hearings before the Senate Judiciary Committee.
We're joined now by James Carville, our CNN contributor; Bay Buchanan, a Republican strategist and conservative activist, president of the American Cause; and David Gergen, our senior political analyst, professor of public service at the Kennedy School, Harvard University.
James, let me start with you. If she's confirmed and becomes the ninth -- the newest member of the United States Supreme Court, there will be real diversity on the Supreme Court, not only will there be Harvard law school graduates, there will be Yale Law School graduates as well. All nine of them -- will either (INAUDIBLE) Harvard or Yale?
JAMES CARVIELL, CNN CONTRIBUTOR: Yes, I think it's a terrible message for the country. That means anybody can be on the Supreme Court as long as you have something to do with Harvard or Yale, and there are a ton of good law schools in this country and there's a ton of good lawyers, there's a ton of good judges that didn't go to one or two of those institutions.
Look, this woman is eminently qualified. She's going to be confirmed. She should be confirmed. I'm sure she's going to be a fine Supreme Court justice.
But we're getting overly credentialed in this thing. And I just -- I think this is the wrong message for the country. The next time somebody gets picked, I hope they find someone who had something to do with a law school that didn't smell salt water.
BLITZER: Bay Buchanan, do you agree with James on that?
BAY BUCHANAN, REPUBLICAN STRATEGIST: I do. I do agree with him, absolutely, Wolf. But I think there's another issue here. It's not -- and that will be used in this debate. The fact that it helps define Democrats and Obama as elitist. Everything is Ivy League. That's what makes you important.
This woman doesn't have any -- she's a blank sheet. The difference between her and Harriet Miers is Ivy League. That's it. And so, you have to wonder, is she truly qualified? Where are the writings?
If you're an academic, you write, you give your opinions, you develop, you know, motivation, certain philosophy. Where is it? There's nothing there.
And so, I have to think that this is just -- this is a very weak appointment.
BLITZER: In fairness and I let David Gergen, pick this up.
David, she was the dean of the Harvard Law School. She was on associate counsel at the Clinton White House. She's a professor of law and the first woman solicitor general in the Justice Department.
DAVID GERGEN, CNN SR. POLITICAL ANALYST: Well, Wolf -- listen, I had the privilege to go to Harvard Law School. I'm a product of the elite schools. But I do agree with the general proposition that James advance, that it's important for the country to have all parts of the country and there are many other law schools. Bay Buchanan has a child at Stanford right now, first class law school. Chicago, there are many other law schools. So, I do think that.
But I also want to put in a word for Elena Kagan who is an excellent nominee. She is no Harriet Miers -- come on, give me a break. She was -- you know, she clerked at the court of appeals level. She clerked at the Supreme Court level. She's -- you know, she has worked at high levels in government.
She was not only an outstanding law professor but she was the first woman to being named dean of Harvard Law School, and conservatives, like Charles Fried, who is solicitor general under Ronald Reagan have written glowing reports about her deanship. She was on the short list to be a president of Harvard University. Probably good for her that she wasn't selected. She would have never made to the Supreme Court.
But she's got outstanding credentials. We've been arguing for years -- every person on the Supreme Court beyond her came up through the court of appeals. We wanted somebody with different kind of experience. President Obama has chosen someone like that.
BLITZER: I want to get James back.
Bay, go ahead and respond to David.
BUCHANAN: Well, you know, you say she was the dean of Harvard Law School. Sure, she was. You know what the dean does? She raises money.
Now, why does raising money make you qualified to be in the Supreme Court? That does not. So, erase that.
If you are an academic and you're -- this is what I don't understand. Where are the brilliant, the brightest left-wing jurists? You know, we have -- we have Scalia on the court. He's brilliant. He's from the right.
You would expect Obama to put one of the best and brightest from the left on there. People who have written and have strong opinions that are creative. It's not there. This is a throw away.
BLITZER: James, go ahead.
CARVILLE: I hate to do this, Bay, but I utterly have to. You criticize her for being from Harvard. Alito, Roberts, Scalia, Thomas -- I mean, every time that a Democrat does that -- oh, it's elitism. And then, come on. I mean, we both got to play this game with some kind of sensibility at this. I'm being critical of the fact that everybody is from Harvard.
Can you just pick on the Democrats? I mean, it's absurd. The problem is, there's a lot of good lawyers that go to other places and I know that of all of the nine positions on the Supreme Court that somebody can find somebody out in the rest of the country. But don't single out Democrats for this for land sakes.
BLITZER: All right, guys. Don't go away. We're going to continue this. A lot more coming up.
LARRY KING LIVE -- right after this.
BLITZER: Welcome back to LARRY KING LIVE. I'm Wolf Blitzer, sitting for Larry.
Bay Buchanan, is Elena Kagan going to be confirmed when the dust settles?
BUCHANAN: Yes. She'll definitely get through. I don't think there's any possibility of stopping her. Unless the left comes in and decides to stop her, I don't think she'll be stopped.
But the key here is: do the Republicans challenge her? And I'd say, on that count, absolutely yes because this is a perfect opportunity to raise the issues that here is somebody who doesn't have the guts to even write down opinions over 20-year period, and on top of that, she's from Harvard and she has so out-of-touch with Middle America that she refused to let the military on campus to do recruiting. This is someone out of touch with Middle America and I think that will hurt Obama.
BLITZER: The argument was that because of the "don't ask, don't tell" policy --
BUCHANAN: Absolutely.
BLITZER: -- the discrimination against gays serving openly in the U.S. military, the law schools had no choice.
BUCHANAN: Well, no choice, certainly they had a choice. She was the president. She could have made that statement. It was clear that the Solomon Amendment was there and it was reversed by the Supreme Court of the United States. She may have been able to look at it herself and say this thing is never going to hold up in the -- before the Constitution. And she could also have said, look it, this is America. Of course we let our military come on in here.
BLITZER: Let me ask David Gergen. You're up there in Harvard. Talk a little about this. You know if there's going to be some controversy during the confirmation hearings, this is an issue that could spark some controversy.
GERGEN: Wolf, you know, I've known Elena Kagan for a good number of years, knew her as dean. I thought she was an outstanding dean. This issue is less -- was not as big while she was here as dean as it's become. It is going to be an issue in the confirmation.
I'll tell you this, there are any number of universities now that find the Don't Ask, Don't Tell policy to be anathema. They think it's discriminatory against gays and lesbians. Leading members of the military now believe that. You know, generals have -- General Mullen, head of the Joint Chiefs, have testified to that. -- Admiral Mullen. Sorry, and thank you.
But the point is, for many universities, ROTC has been kept off campuses and to a large degree because of this discriminatory policy. And I think she was following in that tradition by not allowing military recruiters on campus. They could still come to, you know, Boston and be here for recruiting purposes. But she was asserting the principal. The faculty had voted its opposition to the Don't Ask, Don't Tell. The students had voted in opposition to it.
I think she took a principal stance. People can disagree with it. She then faced the potential cutoff of federal funding that was going to really damage the university. And so she agreed to be pragmatic.
BLITZER: The supreme court ruled against her position. James, as someone as son of the south, how big of an issue is this going to be during the confirmation hearings? How will it play?
CARVILLE: First of all, they got to say something. As I recall, she was the first president of -- first dean of a law school that had done it -- she went to West Point and was commended by the commandant of West Point on doing an outstanding job there. I actually think I read somewhere -- and I could be wrong on this -- she actually appeared with General Petraeus. And she allowed -- the recruiters were allowed to talk to the students. She was following university policy.
Look, they're going to make a deal out of it. And she'll have to answer it. She's going to be on the Supreme Court. There is nothing wrong with her sitting down and being grilled and asked about this. If people have concerns about it, they should ask it. I'm sure that she'll have a very good answer. I'm sure there will be a lot of emphasis that she'll show where she has been very friendly towards the military.
BLITZER: Any other problem, Bay, you have with her?
BUCHANAN: Well, you know, there's no question she's smart, and she's a good administrator, and clearly a very fine teacher, somebody who wants to bring people together and compromise. But none of that goes towards the qualifications of a Supreme Court justice. And that's where I have a problem.
She has three law review articles and a handful of short essays. I've written more than this, Wolf. What kind of -- she's been in that business for 20 years. She's hesitant about taking public positions.
BLITZER: Is she qualified now to be a Supreme Court justice than Clarence Thomas when he was nominated?
BUCHANAN: Clarence Thomas had writings. You could go in there. You could say look it -- you might disagree with them, but there he was there to defend them. He had expressed himself. He believed strongly. He studied the law. He showed himself to be someone who believed that you go in a certain direction. And so there's a man that's been working the business of the jurist.
And here she, what is it? The question I think is how did she get tenure in these good universities when she doesn't write? There's nothing there. She is a blank sheet.
BLITZER: I don't know if she's a blank sheet. David, you know her a lot better than I do. Talk about that.
GERGEN: I think the notion that she's not qualified is preposterous on its face. This woman has lived a life in the law, working with brilliant minds at the court of appeals level, at the Supreme Court, now as solicitor general. She held her own against Scalia. She has held her own against John Roberts. She is going to be an intellectual force on the court, on the left side, to be sure. I am sure that if she was on the right side that we would be hearing very different arguments tonight from Bay.
I think you're looking for ways to oppose her that have nothing to do with her real qualifications. Does she have a long history of making gutsy stands, controversial stands? She does not. But I will just say this we've now -- we have established a pattern in this country that if you do have a history of controversial stands, you can't get confirmed or you're going to be mow-mowed in the Senate.
BLITZER: James, what is this nomination say about President Obama?
CARVILLE: You know, I think it says that he looks for qualified people. President Obama likes credentialed people. There is no doubt about that. I agree with David. She's going to be confirmed. She should be confirmed. She's qualified. Look, I got an idea. If it is how much you wrote, I got a suggestion. The next Supreme Court justice should be John Grisham. He's written a lot. He went to Old Miss. And, you know, I think he'd be a dog gone good Supreme Court justice. I read his books. I like the way this guy thinks. He served in the state legislature. I think the next Supreme Court justice should be John Grisham. I think he would do a hell of a job. That way they couldn't complain about somebody who hadn't written anything.
BUCHANAN: Wolf, you know what this says about Obama? He's gone safe. It's an election year. He doesn't want too much controversy. Let's pick somebody that hasn't done anything. Very, very safe. We go to Harvard.
GERGEN: This is not true.
BUCHANAN: It is absolutely true. What makes her qualified? She has -- being a president of Harvard makes you qualified? It does not. What he's done is dummy down. He has dummied down the Supreme Court. He has given two of the best appointments of his administration to people who are not the best and the brightest. That's unfortunate.
BLITZER: Sonia Sotomayor and Elena Kagan, both of them, everybody who has dealt with them, including their critics, say their very, very intelligent women.
BUCHANAN: Listen, Harriet Miers is an intelligent woman. She is a fine -- just as fine an attorney as you could be. She is president of the Bar. And I, David, you might want to know this, was opposed to her, because I didn't think she came -- that level, you know --
BLITZER: You didn't think she was conservative enough.
BUCHANAN: I think it should go to the best. This is the Olympics of the -- you know, the legal field.
BLITZER: David go, ahead.
GERGEN: I just don't understand why someone who has lived a life of excellence, someone who has distinguished herself in role after role, including that of solicitor general, can possibly be described as someone who is sort of mediocre. He's gone to a choice of quality. She is not controversial. But we all know, given the polarization and the poison that's in the United States Senate, if you put somebody up there that is controversial, they're going to kill them. They're going to put daggers in them. And so he's gone to someone who is qualified, who is quality, who represents excellence.
BLITZER: James, go ahead. One final thought from you?
CARVILLE: This is stunning. We have the dean of the Harvard law school accusing the president of dumbing down the Supreme Court. That woman might be a lot of things, but I suspect dumb is not one of them.
BLITZER: She is definitely not dumb.
CARVILLE: I don't think the spaghetti is going to stick on the wall. BUCHANAN: She's no Scalia, James. She's no Scalia.
BLITZER: We'll see how she does with Scalia and with Roberts, if she is confirmed on the Supreme Court. Bay Buchanan, David Gergen, James Carville, guys, thanks very much.
Transcript from Larry King aired on May 10, 2010