updated 1/12/2006 9:23:19 AM ET 2006-01-12T14:23:19

Guests: Jennifer Berman, Debra Opri, Peter Bergen, Jim DeMint, Jake Goldenflame, Jim Murdoch, Wendy Wilton

JOE SCARBOROUGH, HOST:  And right now in SCARBOROUGH COUNTRY, liberal, out-of-control judges strike again.  This time, it‘s a Vermont man in black who lets a predator who sexually abused a young girl for four years walk free after 60 days.  Now, he‘s preaching rehabilitation, while the family and outraged officials are promising that they‘re going to fight back. 

And, tonight, we enter the fray. 

And I‘m in Washington, D.C., demanding answers from the family of a murdered American serviceman.  Now, why did Germany let this killer terrorist walk free?  And why won‘t our own government stand up and do the right thing?  You‘re going to hear from a U.S. senator who‘s now joining in our fight. 

Welcome to SCARBOROUGH COUNTRY, no passport required, only common sense allowed. 

ANNOUNCER:  From the press room, to the courtroom, to the halls of Congress, Joe Scarborough has seen it all.  Welcome to SCARBOROUGH COUNTRY.

SCARBOROUGH:  Hey, thanks for being with us. 

We‘re going to get all those stories in just a minute.  Also, men, beware.  A new study says that women are wired to cheat on their husbands, and it tells you what time of the month you need to lock your Mrs. in the house to keep her from cheating. 

And what is built in Vegas is blown up in Vegas.  We‘re going to show you the latest takedown in the City of Sin. 

But, first, new developments in the case of a Vermont judge who sentenced a confessed child rapist to just 60 days in jail.  Now, this judge claimed that this guy that raped this little girl from the time she was 6 years old to 10 years old needed to be treated, not punished.  Now lawmakers are calling on Judge Edward Cashman to step down from the bench. 

Also, the State Corrections Department is saying confessed rapist  Mark Hulett can get his treatment, but get it behind bars.  Meanwhile, this weak-kneed judge is actually claiming to take the high ground.  And he says quote—“To change my decision now, however, simply because of some negativity and sentiment would be wrong.  I owe it to the judiciary and to my own conscience to maintain a stand that I believe is in—the best possible option in a very difficult situation.”

Hey, this is just the latest example of out-of-control judges, in my opinion.  You can go to case after case, and you have seen these cases covered on cable news and network news over the past two, three years, and it seems a majority of the time it‘s a convicted child rapist that gets a lenient sentence, gets released again, and does the deed again, and, unfortunately, sometimes, kills a young child, so they don‘t have to go back to jail. 

With us now to talk about this case, we have got Vermont State Senator Wendy Wilton and defense attorney Jim Murdoch. 

Jim, I understand that you actually believe that what this judge did was proper.  Tell me why.  Educate me.  Explain why I don‘t get it. 

JIM MURDOCH, DEFENSE ATTORNEY:  You don‘t get it, absolutely don‘t get it. 

The judge the long view, saying it was more important to have treated sex offenders on the street than untreated sex offenders on the street.  And when our Department of Corrections says this man will simply go to jail and not be treated until he ends whatever period of incarceration will be, that that is really self-defeating, according to Judge Cashman.  And at the end of the day after serving a long period of time, treatment is really not a reality.

And it‘s more important for this kid, for her family and other families out there, that any sex offender that has completed incarceration or any sex offender that‘s on the street—and, by the way, they all get out on the street eventually—it‘s more important to take the long view that a person be treated. 

SCARBOROUGH:  Mr. Murdoch...

MURDOCH:  Yes, sir. 

SCARBOROUGH:  ... this man raped a 6-year-old girl, raped her when she was 6, 7, 8, 9, 10, got caught.  This judge says he should only stay behind bars for 60 days. 

If this case does not call for punishment—I‘m not talking about rehabilitation.  I‘m talking about punishment.  If it doesn‘t talk—if this case doesn‘t call for punishment, then what case does? 

MURDOCH:  We long have given up the concept of an eye for an eye and a tooth for a tooth.  We have long given up, especially in Vermont, the theory of retribution.  Judge Cashman...

(CROSSTALK)

SCARBOROUGH:  Wait, wait, wait, wait, wait.  Are you telling me that Vermont has turned its back on retribution?  I mean, have you guys gone back to 1968?  Do you really believe that if you‘re kind to criminals and if you coddle criminals, like we did in the American judicial system in the ‘60s and ‘70s, that somehow we can rehabilitate them and bring them back into society?  That didn‘t work. 

MURDOCH:  Part of punishment is deterrence, and part of punishment is rehabilitation.  And when the judge is faced with these two choices...

(CROSSTALK)

SCARBOROUGH:  Wait.  But you said you gave up on retribution, right?

MURDOCH:  Retribution for retribution‘s sake is not a part of our judicial system, mine or yours, Mr. Scarborough. 

SCARBOROUGH:  Well, I‘ll tell you what.  It‘s part of Rudy Giuliani‘s.  It‘s why Giuliani cleaned up New York City, because he stopped worrying about coddling criminals and started sending them to jail. 

I would love to see what would happen to a guy that raped a 6-year-old girl in Rudy Giuliani‘s New York if he were the guy in charge of the judicial system there. 

MURDOCH:  Well, unfortunately, he‘s not in charge of the judicial system here in Vermont, and if—I think that Rudy Giuliani, faced with these tough choices, very well would have made the same decision as Judge Cashman did. 

(CROSSTALK)

SCARBOROUGH:  All right, let me bring in the state senator right now. 

(CROSSTALK)

MURDOCH:  It‘s moderate.  Just let me say one...

(CROSSTALK)

SCARBOROUGH:  Well, you—let—I will get back to you. 

But, Wendy Wilton...

MURDOCH:  OK. 

WENDY WILTON ®, VERMONT STATE SENATOR:  Yes.  Hey, Joe. 

SCARBOROUGH:  Does everybody up in Vermont believe that we really just need to focus on rehabilitation when we‘re talking about a guy that rapes 6-year-old little girls? 

WILTON:  Absolutely not.  The public is shocked and horrified by this sentence. 

And, you know, the defense attorney there, I think he‘s got something confused.  I think he‘s confusing retribution with restitution.  You know, part of sending a pretty heinous, pretty serious offender to jail is to take them out of the public venue to keep other people safe.  I think there‘s a balance in a good sentence between some significant jail time, when it‘s called for—and I certainly think it is in this case—and some treatment. 

SCARBOROUGH:  Well, Senator, what‘s going to be done about this, Senator?  Because there are people across America right now very concerned about the fact—well, I will tell you what, especially in my home state of Florida, where you have got case after case where lenient judges let child molesters get out.  And then they go—always seem to go back, molest other little girls or boys, and, a lot of times, kill them.  We have got so many high-profile cases, Senator. 

When is this going to stop and what can you do to stop it from happening in your home state of Vermont? 

WILTON:  Well, you know, I think the power is in the people, Joe. 

And I really think it‘s up to the people to help make a stand with the legislature.  What can be done about it?  There‘s a resolution being crafted by the legislature, the members of the House, that they are looking at this week, it‘s going to Senate—or House judiciary. 

And I would encourage anybody from Vermont who is viewing to call members of House Judiciary, and especially the chairman, William Lippert, and encourage them to move that resolution.  My hope is that the resolution, along with petitions from citizens, is enough to encourage Cashman to resign.  I think that would be the best thing for him to do. 

(CROSSTALK)

SCARBOROUGH:  I want to bring in convicted sex offender Jake Goldenflame. 

Jake, obviously, you have written a book on this.  You have admitted about your past problems.  I want to ask you, what kind of impact does a lenient sentence have on a convicted sex offender?  Do you think that—this guy gets 60 days in jail for raping a little girl from the time she was 6, 7 years old, do you think that‘s going to help him turn the corner and become a model citizen and never think about raping little children again? 

JAKE GOLDENFLAME, REGISTERED SEX OFFENDER:  It might. 

What the judge is doing used to be called shock incarceration, where you take a guy who committed a sex offense against a child, and you put him not in jail.  You put him in prison, a real prison, where this guy is going to sweat it for 60 days—it‘s not going to a nice 60 days at all—to scare the daylights out of him.  And then you take him back out of prison and you say to him, fine.  Look, because we believe that you can make it on treatment and your doctors speak of you as somebody who‘s a candidate for treatment, we‘re letting you back in the community. 

But you have just been in prison, so, we are telling you right now, if you...

SCARBOROUGH:  OK.  But 60 days?  I mean, you have told me time and time again that when you‘re a sex offender, you don‘t ever really recover from that. 

You have got to stay away from little kids.  Shouldn‘t the shock—I mean, let‘s say this guy raped this little girl for four years.  He‘s in jail for 60 days.  That‘s 15 days, only 15 days, for every year that he raped the little girl. 

GOLDENFLAME:  Yes, but turn it around the other day.  Back in my active days, I can remember no law would have stopped me, because it‘s just an impulse that‘s crazy and keeps going.  You don‘t even you‘re not even deterred by threats of long sentences. 

(CROSSTALK)

SCARBOROUGH:  So, you throw him in jail and keep him there.  Don‘t you protect little children from sex offenders if you keep them in jail for as long as possible? 

GOLDENFLAME:  I think the right sentence for every child molester—and I have said this to convict themselves, and they have agreed with me on this—the right sentence would be, you give people like this a life sentence, you put them in prison with treatment from day one, and they don‘t get out until the treatment team says they‘re ready. 

SCARBOROUGH:  Jim Murdoch, I will give you the last word.  Go ahead. 

MURDOCH:  OK, well, that‘s exactly what Judge Cashman did, what Jack just said.

This guy is on probation and supervision for the rest of his life.  He goes near a playground two years from now, he‘s seen walking down the street in the company of a young girl, he‘s seen with pornographic material, and his probation is violated, he goes to jail for life. 

I think, under all the alternatives that Judge Cashman had, this is the long view.  You have said twice, Joe, that what happens is, these guys get out and they commit crimes again.  And what the Corrections Department said is they do not think that this guy will re-offend, and he‘s amenable to treatment on the outside.  So, Cashman simply said, I think, listen, the long view is, we can treat this guy on the outside.  Society will be safer.  This girl will be safer.  Everybody will be safer in the long run. 

(CROSSTALK)

MURDOCH:  And if he screws up, he‘s gone.  He‘s toast. 

SCARBOROUGH:  All right.  Thank you so much. 

Unfortunately, when he screws up, another little kid is raped, possibly killed.  And we have seen that in Florida and across the country too much. 

Senator, thank you for being with us. 

WILTON:  Thank you, Joe. 

SCARBOROUGH:  Jim Murdoch and Jake Goldenflame, thank you so much. 

(CROSSTALK)

SCARBOROUGH:  And coming up next, new developments in our fight to bring a terrorist killer to justice.  Now, we have been demanding answers from our government.  Now some in Washington are starting to fight for your side on this. 

And if you work for one company, you may want to get another job if your marriage is on the rocks.  It‘s a story you‘re not going to want to miss about a university that‘s firing people who get divorced. 

Stay with us.  We will be right back. 

(COMMERCIAL BREAK)

SCARBOROUGH:  A University of New Mexico says that women are more prone to cheat on their spouses than men?  We will give you the shocking details.  And, men, we will give you the warning signs.  You‘re going to want to hear this story.

We will have that and much more when SCARBOROUGH COUNTRY returns.

(COMMERCIAL BREAK)

SCARBOROUGH:  And now the latest on our campaign to put a terrorist back behind bars. 

Now, this convicted killer was sentenced to life in prison for the murder of an American serviceman 20 years ago.  You remember that TWA hijacking.  But just weeks ago, Germany set him free.  Tonight, two U.S.  senators are calling on Condoleezza Rice to bring that terrorist back here to the United States, so we can bring him to justice. 

With me now to talk about it, we have got South Carolina senator, Jim DeMint.  He and Senator Mikulski wrote a letter to Secretary Rice demanding that action. 

Senator, thanks for being with us. 

I was up on the Hill today, listening to senators talk.  They didn‘t really want to hear Alito talk.  They wanted to hear themselves talk.  Somebody came up and grabbed me and said who—somebody who loved the president said, the president is not being represented well by his staff members.  He‘s not doing anything in this case. 

Tell me, why is the White House dragging their feet?  Why won‘t they talk to the Stethem family?  Why won‘t they demand more from Germany and Lebanon in this case? 

SEN. JIM DEMINT ®, SOUTH CAROLINA:  Well, Joe, it‘s great to be with you.  And it‘s good to be on your show. 

I have talked with this Navy diver‘s mother today.  I have also talked to the State Department.  I know you have talked about this case before, but your viewers need to be reminded that this was an American serviceman who was bound and gagged and beaten unconscious.  He was shot in the head.  He was thrown out of the airplane on to the tarmac. 

And he is out of jail walking free now.  And I think every American should be indignant, not only for this particular brave sailor, but for wait means to all of our servicemen all over the world who sign up to protect us.  This is the time we need to protect them.  And I believe after talking with...

(CROSSTALK)

WILTON:  Yes.  Go ahead, Joe. 

SCARBOROUGH:  Oh, no.  I‘m sorry, Senator. 

I agree with you 100 percent.  I‘m just wondering, why won‘t Secretary of State Condoleezza Rice or the president call this family, talk to them? 

DEMINT:  Well, believe me, the State Department‘s working on it, because I have been involved now for over a week.  Our staff‘s working with theirs.  I have talked to people personally at the State Department. 

And their goal is, is that this terrorist will be brought back to the United States.  They‘re committed to it.  They have assured me of that and that they are already working on it with a number of different countries.  So, while they‘re doing it quietly, I think it may be premature to say that the president is not acting on this. 

SCARBOROUGH:  Now, we—we have also heard that the Germans went ahead—I mean, it‘s common knowledge now that the Germans struck a deal with this terrorist outfit. 

They let this guy walk, so a German hostage would be set free also.  Should the president, on Friday, when he meets the new chancellor of Germany, should he take her to task for what they did, for dealing with terrorists, that, again, let a killer of a U.S. serviceman walk free? 

DEMINT:  I believe he should. 

Again, I don‘t think anyone who does this to an American serviceman should ever walk free anywhere in the world again.  And Germany is supposed to be an ally of the United States, and this is just a terrible signal to the world, that someone can do this to one of our service men or women and walk free. 

So, I hope the president will address it with the Germans.  I know they are going to continue to work with a number of Middle Eastern countries to get Hamadi sent to the United States, so we can be prosecute him and that he can face justice. 

But I—his mother, this dead soldier‘s mother, thanked me for you and others who are talking about it, because she‘s been working on this for 20 years, believing that her son needs justice and that the world needs to know that, when this happens, that America will protect the men and women that fight for us. 

SCARBOROUGH:  No doubt about it. 

Senator, thank you so much for joining in this fight, working quietly behind the scenes with the State Department.  And we greatly appreciate you being here tonight to give us an update. 

DEMINT:  We will keep you posted, Joe. 

SCARBOROUGH:  All right.  Always great talking to you.  Say hi to all our friends in Greenville for us. 

Now, SCARBOROUGH COUNTRY is going to stay on top of this story, and we are of course launching our own campaign to get actions done for the Stethem family. 

First of all, we are strongly suggesting the president address Hamadi‘s release with Germany‘s Chancellor Merkel when she visits the White House on Friday. 

Secondly, Condoleezza Rice must meet with the Stethem family and tell them what‘s being to bring Hamadi to justice.  There are a lot of questions about whether they have even made demands on Lebanon.  And, third, the administration has to file a formal diplomatic request to Lebanon to turn Hamadi over to the U.S.  Lebanon says that has not happened yet. 

He hasn‘t been seen or heard from in more than a year.  But Osama bin Laden remains one of the most wanted killers on Earth. 

Peter Bergen has written an important new book on bin Laden.  It‘s called “The Osama bin Laden I Know: An Oral History of Al Qaeda‘s Leader.”

Peter, thank you so much for being with us. 

Absolutely, I read excerpts of the book in “Vanity Fair.”  It looks like an absolutely fascinating piece of work.  Why don‘t you start by trying to humanize this man that we in the West have considered a beast for at least the past four years?  Who is this guy?  Who is the Osama bin Laden you know? 

PETER BERGEN, AUTHOR, “THE OSAMA BIN LADEN I KNOW”:  Well, Joe, my intent wasn‘t to necessarily humanize him.  He‘s, after all, human.  So, I just wanted to really kind of tell his story. 

I felt that here‘s a man who changed history, who founded al Qaeda.  We didn‘t know a lot about him.  And I went back and I talked to his family members, members of al Qaeda, people who had known him well at university or at high school. 

The picture that emerges, as a young man, he‘s hyper-religious, somebody who‘s fasting twice a week, somebody who is praying seven times a day, sort of a rather priggish and prudish young man who was telling his half-brothers not to look at the maid, not to wear short sleeves or shorts, who was transformed by the Afghan war against the Soviets.  He led his own unit, fighting rather bravely against the Soviets. 

That unit became the core of al Qaeda.  And that—one of interesting things is that so many of his friends and family and even people who fought with him against the Soviets turned against him when he set up al Qaeda back in 1988.  They said, this is a dumb move.  You have no military background.  You‘re going to annoy Middle Eastern regimes.  This doesn‘t make sense. 

SCARBOROUGH:  Speaking of dumb moves, a lot of people—I have heard you say a lot of jihadists and even members of his own family were concerned about his attacks on America after—on September 11.  Can you talk about that a little bit? 

BERGEN:  Yes. 

That was sort of an unexpected discovery, that even people who had—jihadists who had fought with him in Afghanistan really turned against him with the 9/11 attacks, on several grounds.  One, they said, this is against Islam, which of course it is.  One of his sons, one of his oldest sons, Omar, who‘s in his mid-20s, after left his father after 9/11, saying, this doesn‘t make any sense. 

The other thing is, they said, hey, while this may have been a tactical victory, as it were, against the United States, what was the strategy?  Al Qaeda was destroyed.  The Taliban was destroyed.  And so, there—there‘s been quite a lively debate amongst the jihadists about 9/11 being overreaching. 

And, in a sense, bin Laden believed his own propaganda.  He had always

said that America was a paper tiger, that it was—you know, we mentioned

you were talking about the situation with the TWA 800 hijacking earlier in the program.  Bin Laden always believed that the Beirut example, where United States pulled out of Beirut after the Marine barracks attack in 1983, was what would happen.

If you attack the United States, they will pull out.  Well, of course, we pulled out of Beirut.  We pulled out of Somalia in the ‘90s.  We‘re not going to pull out of New York, obviously.  And when we—and when bin Laden attacked New York, the whole wrath of the United States government descended on al Qaeda and basically decimated them. 

SCARBOROUGH:  Peter, I‘m always struck by, when I walk into the room, whether it‘s the White House or another place where you walk in and meet a president or a prime minister, or somebody of power, you instantly sense a certain aura, what type of person they are, and you pick up on it.  Talk about the first time you walked into a room where Osama bin Laden was or met him.  What was your sense of this man? 

BERGEN:  Well, you know, I have only had the opportunity to meet one president.  And it was Ronald Reagan.  And I was very favorably impressed by him. 

With Osama, I didn‘t really have any impression, to be honest.  First of all, I was sort of doing my job.  I was the producer of the first television interview he had ever done.  And I was focusing on my job. 

The other thing is, he‘s a guy who‘s very hard to read.  He didn‘t strike me as charismatic.  I also met the Afghan leader Ahmed Shah Massoud, who of course was assassinated by bin Laden two days before 9/11.  He struck me rather favorably.

So, my reaction to bin Laden was, I didn‘t really have a reaction on a personal level.  I found him to be intelligent, well informed, extremely serious, not somebody who appeared to have any sense of humor, obviously, and those were my reactions.  But I didn‘t really have a feeling about him. 

SCARBOROUGH:  I have always been curious.  After 9/11, my sense was—and, of course, I‘m just projecting my feelings on this guy—but my sense always was after the second World Trade Center building fell, that maybe bin Laden thought, geez, we may have gone a little too far on this one. 

I mean, obviously, the attack against New York and Washington was based in part because there were American troops in Saudi Arabia back during the first Gulf War.  But, my gosh, now you have got American troops basically owning Iraq and Afghanistan, and Osama bin Laden is going from cave to cave. 

From what you have learned of this man, is he the sort of person that would be prone to reflection, thinking, maybe we went too far, maybe that was a big mistake, maybe I should have pulled back and taken a smaller target on? 

BERGEN:  I don‘t think so, because you may remember that tape that was

discovered by U.S. troops in November 2001, where we see bin Laden‘s

private reaction to all this.  And he‘s sort of snickering and laughing and

and really having a rare old time. 

I think they were delighted by the attacks.  They definitely shot themselves in the foot.  They overreached.  But I think their reaction was, they were pretty happy about it.  Certainly, bin Laden, you know—there are, as you say, troops in Afghanistan, American troops in Iraq. 

However, the American troops in Iraq is sort of a double-edged sword for al Qaeda.  Obviously, U.S. troops occupying a Muslim country is something that has I think energized al Qaeda.  And we have seen Zarqawi, the leader, the insurgent leader in Iraq, actually changing his name of the group that he runs to al Qaeda in Iraq and swearing allegiance to bin Laden. 

So, that demonstrates to me that Iraq, you know, it‘s—al Qaeda is probably happy that the United States is in Iraq, at the same time that they‘re unhappy that an American army is occupying a Muslim country. 

SCARBOROUGH:  All right, Peter Bergen, thank you so much.  Greatly appreciate it. 

It looks like a fascinating book, going to be a great read for me this weekend. 

Now, when we come back, some workers in Oklahoma could get fired for simply getting a divorce.  We will tell you about it. 

And a Las Vegas landmark bites the dust.  We will show you and tell you why on the other side of the break. 

(COMMERCIAL BREAK)

SCARBOROUGH:  A university in Oklahoma says, if you get divorced, you get fired.  Some are saying it‘s illegal.  Well, I will give you my take and more on the other side of the break. 

But, first, here‘s the latest news you and your family need to know. 

(NEWS BREAK)

SCARBOROUGH:  Men, watch out.  A new study digs deep into the mind of a female.  And wait until you see what it says about why women cheat and when they‘re most likely to do it. 

And Papa Smurf would be very angry at one 19-year-old Alaskan.  See how he got caught not red-handed, but blue-faced. 

Welcome back to SCARBOROUGH COUNTRY—those stories in minutes. 

But, first, getting divorced is tough enough.  But what if you got fired for breaking up with your spouse?  Well, Oklahoma Christian University is warning workers and staff members and faculties that if you get separated or divorced, you will be fired by the university for not living a Christian life. 

Is the university protecting Christian principles or breaking the law? 

Here to break it down for us, criminal defense attorney Debra Opri. 

Debra, thank you so much for being with us. 

Let‘s talk about the legal side of it.  Can a university fire somebody because they get divorced? 

DEBRA OPRI, DEFENSE ATTORNEY:   Hi, Joe. 

In addition to doing criminal defense work, I also do a hefty load of employment litigation for plaintiffs and employers, the defendants.  In this instance, this is a protected status.  It‘s a marital status.  It‘s a protected right.  If the employer is basing the employment relationship upon the marital status of its employee, and this has an adverse effect on the employee‘s employment, it is against the law.  It is a violation of a public policy right, and there will be many lawsuits. 

(CROSSTALK)

SCARBOROUGH:  If I work, Debra, for the university and I get divorced and the university fires me, you‘re telling me I can sue the university for having my rights violated, my protected rights violated by the university?

OPRI:  Yes.  You are being discriminated against on a public policy violation, your marital status.  It falls in the same category as sexual harassment, sexual orientation, gender, age, race and religion. 

SCARBOROUGH:  OK.

But, Debra—and you know this is coming, OK?  This is a Christian school.  Parents send their children to this school not to learn about diversity, not to learn about the ways of the world.  They want their children in a protective Christian environment that forwards the teachings of Jesus Christ.  And, obviously, Jesus Christ was very critical of those of us who get divorces.  So...

OPRI:  Well, let‘s put it this way, Joe.  Let‘s put it this way.

This is a private-sector university.  This is a university who is pushing its Christian values.  And great.  That‘s wonderful.  However, people have constitutional rights.  There are forms of discrimination.  One of those forms is marital status.  When the employer starts going into your personal home life, who you‘re sleeping with, whether you‘re happily married, let‘s face it, they‘re basically going to be forcing employees to stay in an unhappy marriage because of their Christian values.  And that‘s just way too personal an invasion. 

SCARBOROUGH:  OK.  But we talk about separation of church and state.  That goes both ways, doesn‘t it?  Shouldn‘t the state be separated from the affairs of a church? 

(CROSSTALK)

SCARBOROUGH:  And if a church decides that they don‘t want to promote divorce or they don‘t want to allow divorce, shouldn‘t they be allowed to make that decision without the state interfering? 

OPRI:  Well, let‘s put it this way. 

When there is a church-and-state argument—and, right now, I don‘t see this argument—then you‘re going to argue, yes, you have the right to push your religion.  But when you‘re in the school sector—and we‘re only arguing the private vs. the public school sector—the issue will become, does a private university have the right to bring its religious values into the privacy and the personal issues of a family, in terms of an employment?

And I say no, because it‘s a public policy violation.  It‘s discrimination based upon the marital status.  It‘s against the law. 

(CROSSTALK)

SCARBOROUGH:  So, you‘re saying this has to do with employment relations.  So, if my church wants to stop me from being a deacon because I‘m divorced—and I could give them 100 other good reasons they wouldn‘t want me to be a deacon.

OPRI:  Yes. 

SCARBOROUGH:  But if my church decides I can‘t be a deacon because I have been divorced, you say that‘s legitimate.  It‘s just when my church decides how they‘re going to hire people to work in their front office, to work on their grounds, at that point, they can‘t look at marital status.  And, if they do, they can be sued for violating somebody‘s marital or constitutional rights. 

OPRI:  We‘re looking at the contract relationship and an employment relationship based upon the predicate of public policy violations of discrimination. 

The issue will become, is this employee being discriminated against because he‘s seeking a divorce, in terms of, I need to keep my job; should I get divorced or should I stay in an unhappy marriage?  This is not an issue that should ever come to the workplace. 

SCARBOROUGH:  All right, Debra Opri, thank you so much for your insights on it. 

OPRI:  Good seeing you.

SCARBOROUGH:  I suspect we‘re going to be talking about this one for a while. 

OPRI:  Yes. 

SCARBOROUGH:  Well, I was up on Capitol Hill today to try to learn a bit about the judicial philosophy of Judge Samuel Alito—or, at least, I thought that‘s why the Senate was holding those darned hearings back there. 

Unfortunately, my friends in the House of Lords wouldn‘t shut their festering gobs long enough to let the nominee answer the questions.  You know, it kind of reminded me of law school, where the professor would ask the question, he would then answer the question, then would ask me what I thought about his answer to his question. 

At times, I just wanted to tell all the senators to just shut up.  They talked way too much.  Now, all sides were guilty.  But I have got to tell you, “The New York Times”—and I have got to agree with “The Times” on this one—“The New York Times” said the gentleman from Delaware took the cake.  Take a look. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE (singing):  You talk too much.

SEN. JOSEPH BIDEN (D), DELAWARE:  I‘d like to say a few very brief things at the outset. 

UNIDENTIFIED MALES (singing):  You talk too much. 

UNIDENTIFIED MALE (singing):  You never shut up.

UNIDENTIFIED MALES (singing):  You talk too much. 

BIDEN:  The people I‘ve spoken to on your court—and it‘s my circuit

have a very high regard for you.  And I think you‘re a man of integrity. 

The question is, sometimes, some of the things you have said and done puzzle—at least, puzzle me. 

My son was applying—well, anyway, he ended up going to that other university, University of Pennsylvania. 

UNIDENTIFIED MALE (singing):  You never shut up.

UNIDENTIFIED MALES (singing):  I said you talk too much.  Oh, boy, you never shut up.

BIDEN:  There was a magazine called “Prospect.”  I remember the magazine. 

And all I want to ask you is:  Were you aware of the other things that this outfit was talking about? 

JUDGE SAMUEL ALITO, SUPREME COURT JUSTICE NOMINEE:  I did not recall anything like that.

BIDEN:  Well, it was a pretty outrageous group.  I mean, I believe you.

UNIDENTIFIED MALE (singing):  You talk too much. 

BIDEN:  You‘ve been very gracious.  I appreciate you being responsive.

And I thank the chair.  And I want to note for maybe the first time in history, Biden‘s 40 seconds under his time. 

UNIDENTIFIED MALES (singing):  Shut up!

(END VIDEO CLIP)

(LAUGHTER)

SCARBOROUGH:  I like Joe Biden a lot.  I really do.  I think he would be a great choice for the Democratic nomination.  But, man, he was long-winded yesterday.

And today, Orrin Hatch—I mean, Orrin—you talk about leading questions.  Do you like little puppies?  I mean, do you believe that women should be able to go to—I mean, it‘s unbelievable.  Both sides of the aisle, man, they were talking. 

You know, the big news at the end of the day was that Judge Alito‘s wife left the room clutching a handkerchief to her face while quietly sobbing.  Well, I got to tell you, that move certainly worked to make her a more sympathetic figure to those of us who are reporting on the spectacle. 

You know, we had all wanted to do the same thing for the better part of that day, because the senators just talked way too much. 

Remember, Senators, in the end, as my law professor would tell me at the end of his 60-minute lecture, brevity is the soul of wit. 

I‘m joined now by Tucker Carlson, the host of “THE SITUATION WITH

TUCKER CARLSON.” 

Tucker, what‘s the situation tonight, buddy? 

TUCKER CARLSON, HOST, “THE SITUATION WITH TUCKER CARLSON”:  Joe, the situation is, I like Joe Biden, too.  He‘s actually a smart, interesting guy. 

SCARBOROUGH:  He‘s great.

CARLSON:  He‘s the most appalling blowhard I have ever met. 

(LAUGHTER)

CARLSON:  We had him on a show one time.

SCARBOROUGH:  I love him.

CARLSON:  Literally, he wouldn‘t stop talking, even in the commercial break.  He literally wouldn‘t stop.  He wasn‘t aware of when the camera went off.  He‘s an amazing guy.

(LAUGHTER)

SCARBOROUGH:  Just kept talking.  And they were all that way.  This is not a Democratic thing.  Republicans were just shameful, also. 

CARLSON:  Oh, I agree.  I agree.  I know.

And I don‘t think most Americans are aware of just how bad it is in the U.S. Senate with the talking, the talking. 

SCARBOROUGH:  Oh.

(CROSSTALK)

CARLSON:  Speaking of the talking, tonight James Frey, author of the best-selling work of fiction billed as nonfiction, went on, on a competitive network—competitor network—tonight and told lie after lie after lie about his book.  The lies stop here.

SCARBOROUGH:  Wait.  Wait.  This guy is still lying?

CARLSON:  Not only is he still lying.  He went on this other show tonight with his mom for moral support, not only lying, but degrading himself, embarrassing himself in the process. 

SCARBOROUGH:  That‘s terrible.

CARLSON:  He can‘t lie on our show, because we have the cop tonight who arrested James Frey, the now famous arrest he says resulted in him getting a three-year sentence for cocaine possession.  We‘re going to get the truth about what actually happened tonight.  It‘s going to be, I think, really illuminating for those of you who have read that book. 

SCARBOROUGH:  All right.  Thanks so much, Tucker.

CARLSON:  Thanks, Joe.

SCARBOROUGH:  Greatly appreciate it. 

And make sure you get the real facts with “THE SITUATION,” coming up next at 11:00. 

And, when we come back, are men or women more likely to cheat?  The answer may be in the wiring. 

And, men, believe me, you need to listen to this one.

(COMMERCIAL BREAK)

SCARBOROUGH:  A wild police chase spins out of control in Los Angeles.

According to a witness, the car was coming off a side street and ran into the cop car.  The cop car spun out of control and plowed into a tree.  The officer who was driving is OK, but the officer in the passenger seat entered up with a broken leg.  More cops were put in on the chase.  They finally caught up with the stolen pickup truck and arrested the driver and the passenger. 

And now a time for a flyover of SCARBOROUGH COUNTRY, stories that may have fallen under the mainstream media‘s radar, but not ours. 

The first stop, Anchorage, Alaska; 19-year-old Daniel Clark was allegedly caught not red-handed, but blue-faced trying to rob an Anchorage Super 8 Motel.  Apparently, the teen is a big fan of the Smurfs.  He used some dye from a pen commonly found in bingo parlors to paint his face blue.  And the dye was still on Clark‘s face when the police tracked him down and captured him, about 20 minutes after the attempted robbery. 

Clark is charged with first-degree robbery and third-degree assault. 

Our next stop, Texas, where Dr. Phil admits he doesn‘t always follow his own advice.  Despite numerous shows on managing feuding in-laws, the good doctor says he doesn‘t like hanging out with his wife‘s family.  Dr.

Phil McGraw tells “Ladies‘ Home journal”—quote—“I ain‘t big on

family.  I love my family and spend time with them, but I believe in having

my own life and doing my own thing.  And I sure wasn‘t big on her family”

And our last stop, Vegas, baby.  A landmark hotel and casino no longer taking reservations.  Demolition crews collapsed the Sin City staple once known as the Showboat.  The 19-story Castaways tower came down almost two years to the day it closed, after owners changed hands in bankruptcy court.

Now, the current owners don‘t have any new plans for where the hotel stood, although a new building project is expected.  And who knows, maybe it can be the site of Joe Biden‘s one-man show. 

Now, coming up next, are men or women more likely to cheat in a relationship?  The answer may not be what you think, according to a surprising new study. 

And, later, it was almost hard to believe that the news was true, a politician caught doing drugs again.  That‘s the clue for tonight‘s “Joe‘s Schmoe.”  

See who it is coming up. 

(COMMERCIAL BREAK)

SCARBOROUGH:  Are men or women more likely to cheat on the opposite sex in a relationship?  If you said men, you need to hear this next story. 

According to a new study out of the University of New Mexico, women are wired to seek out a sexier, stronger mate when their current one gets a little stale.  And it happens at certain times of the month.  Consider this quote from that study—quote—“When women are fertile, they begin gene shopping.”

With us here to talk about it, Dr. Jennifer Berman, author of “Secrets of the Sexually Satisfied Woman.”

And, Doctor, it appears that, at certain times of the month, women are genetically predisposed to go out and search for stronger men.  Talk about this study. 

DR. JENNIFER BERMAN, FEMALE SEXUAL MEDICINE CENTER:  Well, really what happens during certain times of the month, which what you‘re referring to is ovulation.  There‘s an increase in the hormone called testosterone, which is the male hormone of desire. 

So, really, women are more open and receptive to sexual encounters, maybe feeling more sexual and/or more sexually motivated.  Whether or not that‘s with their partner and/or somebody else remains to be seen.  From this study, it wasn‘t clear whether women were only attracted to more attractive men and not their partners, at the exclusion of their partners. 

The bottom line is, I think that ovulation doesn‘t mean that women are going to cheat.  It just means that there are times of the month that women are more receptive and/or motivated to be sexual. 

SCARBOROUGH:  Now, I thought that, again, in this category, that men were the dogs here, that a woman and her sexual drive was based on emotion and feelings, etcetera, etcetera, etcetera. 

But, again, in this study, they had two different control groups.  And, in both cases, they did say that women were more likely or more prone to look for—I don‘t know if you would call it alpha males or stronger men or exactly what it was.  But they would look at their own spouses, and, if they saw them as being weak, they may be more likely to go after these stronger men. 

BERMAN:  One thing to bear in mind for this study is that these were young co-eds.  So, we don‘t know whether these were long-term relationships and/or relationships that the woman would consider as a potential mate. 

We all know that we have had numerous—I mean, I have—I can‘t even count how many relationships I had in college with no intention of any long-term relationship. 

That being said, there are certain characteristics that we look for, virility, strength, a robust physical appearance and/or voice, and ability to provide.  So, it‘s not all about physical characteristics and/or attractiveness.  Intelligence, creativity and ability to provide are also significant. 

I think the real message of this study is that women should not be alarmed and/or concerned by these carnal or lusty feelings that they may have towards—certainly toward their partner, and, for that matter, towards other men.  It is completely natural to be attracted and/or have sexual feelings towards men that are attractive. 

And, for that matter, there have been numerous studies—and I think we have even talked about it on this show—that women are just as likely to cheat as men are, that men aren‘t the only dogs, that women have their own reasons for cheating, and we‘re not all about touchy-feely roses and flowers, that women do have sexual drive and sexual energy and/or motivation to be sexual. 

Depends on a variety of circumstance whether or not that‘s with their partner or not. 

SCARBOROUGH:  Now, what—it seems, though, to break stereotypes, obviously.  Why are we starting to hear just now about these studies that women may be genetically predisposed to do the same thing that we have been hearing for years, for centuries, doing the sort of things that men are genetically predisposed to do? 

BERMAN:  We have known for a long—for forever what is considered attractive and why certain facial characteristics, certain body structure, body, strength, muscles, deep voice, the same with—the same for men, full lips, full breasts, wide hips, fertility, virility, those are the things that we‘re attracted to, carnally, you know, genetically, if you will. 

But, in addition to that, there are other factors that are wired as well, the ability to protect and provide.  Protection can be determined by size and strength, also, intellectual capacity and financial ability to provide. 

So, women, when choosing their mate, should not be directed towards the most attractive, virile looking guy.  Granted, he might be most potent in terms of sperm, but in terms of the long-term relationship, there are other factors that are at play.  And the issue is... 

SCARBOROUGH:  OK.

BERMAN:  Go ahead.

SCARBOROUGH:  Oh, no, no.  I‘m sorry.  We—it‘s time for us to go. 

I want to thank you.  And...

BERMAN:  Thank you. 

SCARBOROUGH:  And greatly appreciate you being here tonight.

And, you know, also, I wish I had time to ask her, but I don‘t, because we have got to go to break.  I wanted to ask her if it had to do with what was going on, also, in our culture, whether it was just genetic predisposition or, also, the outside influences that you see in movies and on TV and magazines that also may be causing this upswing in women‘s behavior. 

Now, we‘re going to be right back in a second.  We are going to have tonight‘s “Joe‘s Schmoe.”

Plus, “THE SITUATION WITH TUCKER CARLSON, it‘s just minutes away.  So stick around.

(COMMERCIAL BREAK)

SCARBOROUGH:  It‘s time for tonight‘s “Joe‘s Schmoe.”

And it‘s none other than former Washington, D.C., Mayor Marion Barry. 

That‘s right.  Barry‘s back in the news, and, shockingly, it has to do with drugs.  “The Washington Post” is reporting that Barry failed a mandatory drug test for cocaine.  Now, you may recall, Barry spent six months in jail in 1991 after getting caught on videotape smoking crack in a hotel room.  That ended his third term as mayor, but it didn‘t keep him out of government.

After winning another term as mayor, he now sits on the D.C. City Council.  Barry is due in court next month to face charges for tax evasion that could land him back in jail for another 18 months.  Marion Barry, on a variety of all levels, is tonight‘s “Joe‘s Schmoe.”

And maybe Tucker Carlson can tell us, coming up, what exactly Marion said when he was arrested the first time.  We will see—Tucker.

CARLSON:  You know, Joe, I knew Marion Barry.  Marion Barry was a friend of mine.  And you, Joe, are no Marion Barry.  I know I‘m not going to quote him from the Vista Hotel, circa 1990, because it‘s profane. 

SCARBOROUGH:  The bitch—the bitch set me up, Tucker. 

CARLSON:  That‘s right.  She did.  I had the T-shirt.

SCARBOROUGH: “THE SITUATION” starts right now. 

(LAUGHTER)

CARLSON:  Thank you, Joe.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

Copy: Content and programming copyright 2006 MSNBC.  ALL RIGHTS RESERVED.  Transcription Copyright 2006 Voxant, Inc. ALL RIGHTS  RESERVED. No license is granted to the user of this material other than for research. User may not reproduce or redistribute the material except for user‘s personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon MSNBC and Voxant, Inc.‘s copyright or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.

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