Kagan may face tough confirmation fight

>> 10th, 2010 . i'm chuck todd .

>> good morning, i'm savannah guthrie live at the white house . let's get right to the run down". we'll start with the breaking news here out of the white house . president will introduce elena kagan one hour from now. he called her right after 8:00 last night to give her the news and also called the other short listers who are did not get the job capping a month long search with four finalists interviewed by the president, some interviewed more than once. in about an hour from now, we expect to see the president, the vice president and elena kagan from the east room here at the white house . joining us now, the reporter who broke this story. justice correspondent pete williams is live at the supreme court this morning. pete , good morning. what can you tell news.

>> good morning savannah. elena kagan is someone who has a lot of firsts in her background. she was the first woman solicitor general , and maybe even more of an all-mail bastion she broke down, she was the first woman to be dean of the harvard law school . it's her service there that maybe the white house was impressed with. she had a reputation for building diversity in that fact, bringing in more conservatives, bridging the gap between the two wings of political thought at harva harvard . she will have supporters among the conservatives there, including charles fried who was president reagan 's solicitor general . he's a big supporter of hers. as the solicitor general she's argued six cases before the supreme court and comes with a long record in government and in academia. she worked in the clinton white house . she met a young barack obama when she taught law at the university of chicago when he was a part-timer on the fact there and knows vice president biden. when the committee considered the nomination of ruth bader ginsburg . she has a lot of experience in the court but thing she doesn't have is any experience as a judge. they'll be the first nominee in 38 years who has not, did, not come here with experience as a judge. that was 1972 when the president appointed lewis powell and william rehnquist . rehnquist went on to be chief justice. throughout the history, most of the nominees to the court have been judges but this is hardly a first.

>> pete , i want to follow up on the number one criteria we kept being told by the president was having -- becoming an intellectual count are weight to chief justice roberts . there's been a concern in the white house that roberts sort of really has wired the supreme court and that all of the finalists were somehow people that the president thought could be that counter weight. why -- what does kagan bring that somehow make her not just a counter weight to roberts but maybe the person who figures out how to bring justice kennedy over to 5-4 decisions? i guess his thinking was number one, she's obviously very, very bright and has a reputation as a very gifted academic and intellectual powerhouse on the law. a long tradition on handling legal issues both in academia and in government. secondly, because of her experience, the harvard experience, she's considered somebody who can help build bridges. those may be two of factors the president was looking at.

>> capitol hill correspondent kelly o'donnell and our chief foreign affairs correspondent andrea mitchell host of " andrea mitchell reports" here on msnbc. kelly , the other factor when you hear the words elena kagan , she's confirmable. tell us about the republican road and the number of votes that democrats think they can get from the republican side of the aisle on her.

>> good morning, chuck. one of the easiestest things to look at is one year ago in march of 2009 when kagan was confirmed as solicitor general . what did the vote count look like then? she received 61 yeas and among those seven republicans. two of them orrin hatch of utah, jon kyl of arizona were guests of the president at the white house just days ago in private personal meetings there. perhaps a signal of perhaps the president wanting to build some of their support behind kagan in this next process. all 31 votes that went against her were republicans. so when we talk to people here, we get a sense she has some republican support. those who voted against her last year will likely vote against her now. the big question would be, there is a little bit of a change in the makeup of the senate since that time. and you have to look at what will come out during the confirmation process. at 10:30 this morning, patrick leahy , the democratic care of the committee that will run all of this will hold his first news conference in talking with the committee, leading up to this. they have big files on elena kagan because receives confirmed just a year ago and because she was a part of the search process one year ago when sonia sotomayor was selected. so they have plenty of files ready to go. their staff is prepped. i've got the questionnaire they used last year right here and the negotiations will begin with patrick leahy and his counterpart jeff sessions , the republican of alabama. they'll work that out. the thing that will be fun to watch is probably as early as tomorrow this new nominee will be here on capitol hill doing what we call the courtesy calls and they'll be a lot of attention following her around as she meets senators who will ultimately decide if she gets on the court. all of the since is she would be easily confirmable barring some big surprise. the hard part is always the process to get there. the hearings will surely be tough. they always are. republicans will look to make it tough, explore all the issues but the sense is just by looking at the flubs that she should be able to get through.

>> kelly , last year, sonia sotomayor met with nearly every member of the senate and many senators will tell you those meetings make a real difference. let me turn to andrea mitchell , a watcher of these proceedings for many years. it seems the president did not feel as much pressure as did he last time to pick a woman and yet, couldn't resist the opportunity to make a little history and bring something approximating more gender equity to the supreme court .

>> reporter: i think that is a major factor. obviously, his comfort level knowing her intellectual firepower, knowing and working with her, the fact she worked for joe biden on the hill, all three branches of government. even though she doesn't have judicial experience she has been solicitor general and has experience in that in the executive branch and also, of course, was a member of joe biden 's staff on the senate judiciary committee and snows the senate well. i talked to a very prominent democratic senator last night who was saying the senator said that she hope that had it would not be kagan , despite the gender issues because she thought it would be tougher to get her confirmed than merrick garland . and that there is so much anger, so much friction in the senate right now, she thought that they didn't need another big problem. but that this could create problems just because of the issue of military recruitment on the harvard campus. at the same time, she has been known as you've pointed out as pete pointed out at harvard for someone who appointed more conservative members of the faculty, who brought in more diversity on the faculty and if you can run harvard , the view is you can run almost anything.

>> i want to talk about criticism that may come at elena kagan over the next few days. a lot of it we think may come from the left quicker than from the right. talk about that criticism we may hear from the left on elena kagan .

>> sure. this will be the first nominee in 38 years who doesn't have a judicial record. no record of decisions. she's written some law review articles. so what the conservatives are going to criticize her for we expect and what we've heard from her is decisions she made while dean at harvard on denying recruiters access to the campus because of harvard 's nondiscrimination policy and the fact that the military banned gays from coming in the military. the liberals will say during her time as solicitor general , she's been too support i be of bush era administration policies in fighting the war on terror . officials secrets, whether you can detain people indefinitely who are considered enemy combatants. she did write a letter, she and some other presidents of law schools , yale, stanford, harvard , some other law schools wrote a letter to pat leahy of the judiciary committee during the time at that time congress was considering extending the military commissions act and that letter takes a more liberal position than she will has since she's been in the administration. so what her defenders can say is yea, she's lifter general now. it's her job to support the administration policies but she isn't as much of a an conservative on these views as it might first appear. that will be their line, i believe.

>> keli, senator expect ser an intriguing one to watch, of course, because he actually voted against elena kagan last year at her hearings for solicitor general . he was then a republican. he's now a democrat in a fierce primary fight. any early word from his office or what's your best guess what you think he will do here?

>> he was also the chair of the judiciary committee until he switched parties just a year ago. he really understands this process. he will be one to watch. i have not spoken to his office this morning. but when you look at the political pressure he is under at home in pennsylvania with his primary challenge or congressman sestak seeming to gain in polling and it's a tough environment for arlen specter so it's difficult sometime the as a new democrat certainly, you would expect that he would be under great pressure to vote for her because of obviously, the climate that exists here. i think just picking up on what andrea said, i heard from many senators that merrick garland was perhaps their favorite choice in terms of an easy way to get through the senate because of all the other issues they're dealing with here. there's a lot of weariness in the senate with all the big issues. they're still dealing with financial regulatory repolymer. the president is going a different direction and many people said he would keep garland in his pocket should he get yet another pick during his first term or if elected to a second term, would he get another shot at shaping the court. perhaps merrick garland would be easier to confirm later if there were more republicans in the senate . all of the landscape is changing. it will be fascinating to watch. i know i'll be running around a lot chasing her from office to office.

>> kelly o'donnell, you're going to be coming back with us during our special coverage. pete williams , thanks very much. we're both going to be talking about this all day and probably all week.

>> no question about it. we