>> this is what justice is all about. >> a federal judge tosses out a ban on same-sex marriage. >> he has imposed his own agenda on the voters and children of california. >> doethis is a bill for our kids. >> the obama administration argues against tax cuts for the very wealthy. >> to raise taxes on those who create jobs is, frankly, crazy. captioned by the national captioning institute --www.ncicap.org-- >> the obama administration solicitor general, elena kagan, becomes only the fourth woman in history to serve on the supreme court. with her confirmation, for the first time, there will be three women on the court. a was 63-37. only clarence thomas and samuel alito were confirmed with fewer votes. justice scalia and john paul stevens or conformed with the votes of 98-0, and ruth bair ginsburg confirmed by 96-3 -- ruth bair gansler confirmed by 96-3. why was this so close, colby? >> are a reflection of the times, harsh partisanship. it was ideological. they speculated that she would be too far to the left and would impose our own views on the the constitution. -- imposed her own views on the constitution. it is sad. >> evan? >> i had lunch with the u.s. senator this week who should be a scene that says it all but there is a place on the u.sfloor where senate's can go to have lunch. 1:00 in the afternoon, tablecloth this said, soup is cooking, solid there. -- salad there. nobody is in the room. u.s. senators used to go and talk to each other. they don't do that anymore. they go to the separate camps, and that is why you have a vote like that. >> charles? >> the closest since toledo. when president obama was a senator -- the closest since several toledo. when president obama was a senator, he voted against chief justice roberts. justice scalia was nearly unanimous. with bork it all changed and you have ideological votes. >> josh, welcome. what does this say? >> we saw senators like orrin hatch to of but it for democratic nominees in the past go against this particular nominee. people would candidly say that it is about how closed up to the election. >> 5 republicans voted for it kagan puts got out of a massachusetts, who introduced her -- but scott brown of massachusetts, who introduced did not. >> her career up to this point shows that she it uses the fax to advance her own beliefs. i fear that this trend will continue in an activist tenure on the supreme court. >> in medicaid and -- elena kagan is well qualified to serve on the bench. she represents mainstream views. >> lindsey graham was one of five republicans who voted for elena kagan. i near-party line vote like this one could spell future trouble. >> the thinking is that we are seeing more of a trend on these things, and there is a possibility of down the road of a filibuster. this was three or four votes above the threshold that you need to cut a filibuster. they're concerned, depending on who is in the presidency and the senate, that there could be a stalemate over supreme court nominations, similar to what we're seeing over district court of appeals court nominations. >> gordon, you are making it sound like that this is an issue of republicans. the history of this is clear. it was democrats with the bork nomination who turned it into ideology. in the clinton years, the clinton that appointees got strong support from the republicans. it was an offer of trees, and was rejected and the bush years, -- all for a truce, and was rejected in the bush years. republicans are saying that we not going to be patsies year. if we support clinton nominees and you do not support bush nominees, it will become ideological. >> quit pro -- quid pro quo. >> scott brown was knocking her for lack of judicial experience. she tried to get it on the u.s. court of appeals, and was denied that because republicans stalled nomination. it is not the -- republicans stonewalled her nomination. >> once upon a time there were competing for use on capitol hill. you have to stand up to your party and fight for what you believe in. the other was that you have to get stuff done. that is entirely gone now. it is justified. >> the dining room is empty. if you are born in the usa, you are automatically a citizen. does that make sense? >> there are thousands of people coming across the border to have their children in american hospitals, illegally. it makes no sense to award citizenship when someone breaks the law to get here. >> that is senator lindsey graham. the 14th amendment reads, "all persons born and a naturalist at the united states and subject to the jurisdiction thereof are citizens of the united states." a woman who enters illegally and gives birth to a child here, the child is automatically at a u.s. citizen. leading republicans in congress, like meacham, and get assistance and john mccain, -- are, like mitch mcconnell and jackson and john mccain, are talking about taking another look. >> it is the failure to talk about immigration. it is the same cast as the arizona law, the sense of desperation or the government will not solve problems so they are flailing around looking for solutions. >> are appealing to citizenship by birth right requires a constitutional amend -- repealing citizenship by birth right requires a constitutional amendment. what are political risks for republicans? >> being seen as an anti- hispanic, anti-latino kind of move. it is worth noting that it does not just involve latinos. you have foreign graduate students who come from overseas. their spouses are not allowed to do anything. that is the law here. the often have children who become u.s. citizens. >> don't these guys have a point, that if you cross the border -- >> we have a story in "the washington post" a few weeks ago about china, where well-to-do chinese women go to the united states and go to good hospitals and have their babies and then go back home for the purpose of making sure that their children a citizen that have access to good schools and colleges when they grow up. this is the long-range view. it has nothing to do with crossing the border illegally. my youngest child was born in germany. we were informed that everyday, "you have a german baby -- we were informed that very day, "you have a german baby." i had to go to a c -- i had to go get a certificate for u.s. citizenship. >> does she have dual citizenship? >> i don't know. >> look, it is extremely unusual in the west of citizenship conferred immediately upon birth. obviously, the civil war amendment was aimed at ex- slaves. it was not about immigrants. the other problem is not only a child in america -- it becomes an anchor child. you acquire the rights of being citizens with your relatives. it is a way of putting ultimately a family. this were a statute, i would repeal it tomorrow. but i have a lot of respect for the constitution and i am extremely loath to repeal or change the constitution with amendments. as evan indicate, a peripheral issue. it is a crazy tradition that we have, but it is constitutional. the problem is immigration, not anchor babies. >> maybe all this madness, fighting over arizona, arresting illegals, all that, and now this, will have the effect of finally forcing congress to come to grips with an issue that they have been assiduously avoiding. they had a shot a few years ago and failed to come up with something. they must deal with the issue of immigration. maybe all this sturm and drang will get them to do it. >> it lot of anti-emigration of folks view lindsey graham's proposal as a diversion from the real problem. people can easily come into the united states, that we have not seal the borders and set up a system that discourages people from doing that. that is the problem, that there is huge numbers of people doing this to have the children born here -- it cannot be a significant contribute to. -- significant contributor. >> it is a trick in the law -- it is having an unintended effect. >> let people get a hold the 14th amendment -- a certain party that will not be named -- >> i need 1870, we did not have chinese flying in to have -- in 1870, we did not have the time is flying in to have children -- >> it was not just about slavery, it was about -- >> i understand, but that is not what is -- >> it is never going to happen. you need 3/4 of the state legislatures. unless we have a dearth of other things -- >> but a state's rights issue any connection -- >>, on. -- come on. >> it sounds like it is very risky for them to be talking about this. >> josh is right. it is not going to happen. >> not going to happen, end of discussion. let's not waste any more time on it. a federal judge in california vetoes the ban against same-sex marriage. >> this decision says we are americans, too. we do should be treated equally. -- we, too, should be treated equally. >> it is an example of a judge thinking they know better than the people what the values are. >> they're talking about prop. 8 in california, and a federal judge appointed by ronald reagan said no way. >> the next stop will go by the ninth circuit. it will undoubtedly a pulled the district george. it will wind up in the supreme court. i think it will lose in the supreme court. but here is what i think the problem is. regardless of what you think the merits of the issue, either way, this is not the way you do eight pit we should have learned our lesson with the abortion issue in 1973. or spader ginsburg herself once said -- routes later ginsburg herself once said, -- ruth bader ginsburg herself once said that it took it out of the hands of the legislatures and people and provided a stable resolution of this issue and crated and this division and a sense of -- created in this division and a sense of disenfranchisement. the sad thing is going to happen with the right spirit already is being -- the same thing is going to happen with dave rights. already is being enacted in d.c. and new hampshire. the trend everywhere is towards liberalization. why would you want to step on the process? it is a tragic mistake. >> josh, you wrote that this pr a threatens president obama's political studies. > -- strategies. >> one of his goals was to sweep social issues off the table. they were not interested in abortion, they have done nothing on guns, which dominated the clinton administration, and things like gay-rights, while they have made progress, they want to put them on the back burner. it is a party audacious decision. it is one thing to overturn a legislature's act. this actually overturns a vote of 52%, something like 7 million californians, the banned same- sex marriage. it is a stark collision between judicial power and the power of the people. >> let's be clear, the judge did not intervene. it was given to the judge by plaintiffs. the judge was faced with looking at the constitution, looking at the arguments, and making a decision. he acknowledged that there was the vote for proposition 8, but that was trumped by the constitutional presidents before him. -- precedents before him. the arguments i hear against what the george did a the same ones against the supreme court in brown v board of education. it is inevitable that you look at that kind of -- the courts did the right thing. >> this was judge vaughn walker, a reagan appointee. "marriage in the united states has always been a civil matter. religious leaders to determine independently whether they will recognize a civil marriage or divorce, but that recognition or lack thereof has no effect on the relationship under state law." in law, why don't we stop calling it marriage, called civilians, and leave it to mprescripts and rabbis to call it marriage? >> gay marriage is coming. will we do it through the democratic process, or judicial fiat? i am for gay marriage, but i am on charles' side on this. >> if you think that somebody has a right to set the, you did not wait until people feel good about people having had if it is the right, they should have it immediately. not to have them adjust to the idea of exercising the right. >> it is no more rights and abortion is our right. -- it is no more a right to ban abortion is a right. the rights are in the i have to be older. -- the rights are in the eye of the beholder. we went thousands of years until yesterday when a society that same-sex marriages at all societies at all places. this is a new invention. 80 years ago, and the same state -- 8 years ago, in the same state, anti-gay marriage was 61% in the referendum. now it is 52. evan is right. in a short while it will change and that state. the younger generation has a different attitude. do we want to recreate 30 years of strife and anchor and disenfranchisement that we have had in abortion decisions? now. why not do it democratically in a democracy? >> i would posit that if segregation had been put to a popular vote in 1954, it would have failed in the south. and yet we know that is wrong, segregation is wrong. >> the reason that was a given case is that jim crow pride african-americans of the right -- the reason that was a different case is that jim crow deprive african-americans of the right to vote. there was no avenue for them to express themselves. everybody straight and gay has a right to vote and change the law. >> they don't have the right to marry. >> i think it is a fundamental right to marry. >> we will do about it because we have to keep moving. obamacare, tax cuts, money for the first responders. so many issues, so little time. >> they always been there for us, teachers, police and fire. the least we could do is be there for them. >> it looks like cash-strapped states will be getting help. the new jobs bill, $26 billion worth. nancy pelosi is calling the house back. what is the back door and this, josh -- what is the back story on this, josh? >> they hoped to get this passed before the two houses went out. they had a lot of trouble paying for it. that was part of the story here. in order to pick up votes from the balkans, they needed to get this measure through. -- to pick up votes from republicans, they needed to get this measure through. democrats wanted to take the money from big business. the two republican senators wanted to find it somewhere else. they came up with the courageous decision to take it out of food stamps. >> $12 billion in cuts in food stamps. >> 2014. that is a real active political courage, i would say. -- real act of political courage, i would sisay. >> it was money that had not been promised anybody. >> this is a big payoff for the teachers' union. i agree with "the washington post" editorial on friday. it was a big gift for the union. just having it done by seniority, it is a big mistake. >> evan is right. he is my proxy on this. >> the bush tax cuts, what is going to happen there? >> the obama administration is going to keep them. it is a good issue and the campaign. i am not sure how sound economics it is. but tim geithner says it is going to hurt the economy if they are allowed to be extended. i think the right solution is to defer the expiration for you to -- for a year or two. we are not in a position of creating jobs and we are in the middle of a sluggish economy. democrats don't have a lot of arguments on economics, and they can argue as usual that republicans want to protect the rich. >> what is going to happen? you heard newt gingrich say that proposing a tax increase on the people who have created jobs -- not me, but my wife -- we are one of those who benefit from this tax bracket. we don't create any jobs. we don't create any jobs at all. >> i think they will extend the cuts for middle-to-lower -- >> middle-to-top folks? >> no, middle-to-low-and, folks. it is a question of where they intervene -- >> my colleague for read the -- colleague farreed zakaria says that congress should do what it does best, nothing. >> a judge allowed a virginia lawsuit against health care to proceed. >> with the missouri law, my friends are excited. they see it as a proxy for a vote on obamacare, overwhelmingly rejected. i am not so sure. it was only about the individual mandate. it is a very narrow issue. i think if you had a referendum in missouri on abolishing pre- existing conditions, it would also have a strong majority in favor. if you pick and choose elements, you will get lopsided majorities. the question is overall. overall there is a 10-point spread of opposition over support. i think that is where it stands. i would not over-read as a referendum -- i would not over- read them as a referendum. >> i agree with charles on that it was a small turnout. it is not going to be on the ballot in november. i am not sure what the overall impact is going to be. >> well, i agree. i don't think the turnout -- i think the turnout on the cuts the value of that particular referendum. that is where the virginia court decision -- a lot of folks think that the law says it to the contrary, but the particular judge happens to be one of the most conservative on the federal bench. he is a fourmer meese for today. this was just about the worst they could possibly come up with -- >> he is to be a prosecutor over there. >> the obamacare passed and people are either resign or opposed to it. most of it does not take effect until 2014. by then, we will have to work on the next six, which has not -- the next six, which is not even gone into effect yet. >> i would not underestimate the importance of the virginia decision. if there was any judge who refused to drop the case, he made himself the case. the conservative argument is this -- if the commerce clause allows the administration, the federal government, to force you or anyone into a private contract, then there are no limits on the power of the federal government. we are not a country of enumerated powers. that is a pretty strong argument. i think it will be closed when it ends up in the supreme court. >> which is where it is going to go. >> absolutely, no question. >> let me touch on something we talked about last week, the wikileaks issue. the pentagon wants its hands on these papers. >> there is this fascinating bid by wikileaks, an interesting play by them. they have gone to the pentagon and said, we would love to discuss with you what is in here. why don't you come to the table and talk about it? the pentagon says they have not been asked that, but that is what wikileaks is saying, which would put the pentagon at an awkward position. if they want to prosecute these folks, they do not want to get the same table --] >> i don't think it is an awkward issue at all for the pentagon. it's our material, not yours. >> material in the newsroom as well -- >> that's ok. they have every right to demand it. >> it is such a simple issue, how come in the bush years and nixon years, when you leaked stuff, that is our material, and you end up with a pulitzer prize, and now in a democratic administration, you are condemned left and right? >> washington is a complicated place. i cannot explain it to you. last word. see you next week. for a transcript of this broadcast, log on to insidewashington.tv.