updated 1/25/2006 11:02:23 AM ET 2006-01-25T16:02:23

Guests: Sam Brownback, Ken Salazar, Ed Rogers, Hilary Rosen, Ben Ginsberg, Steve McMahon, David Shuster , Mike Allen, Craig Crawford

CHRIS MATTHEWS, HOST:  The fear of terrorism, the smell of corruption—what gets to you?  What drives your vote?  The Republicans bet it‘s terrorism; the Democrats are counting on corruption. 

It‘s State of the Union time and the battle lines are drawn. 

Let‘s play HARDBALL.

Good evening.  I‘m Chris Matthews. 

Welcome to HARDBALL.

A week before the president‘s State of the Union address, Republicans and Democrats are laying out their political battle lines.  The Bush administration has launched a major P.R. blitz, focusing on the president‘s anti-terrorism policies, while the Democrats are speaking out on political corruption, betting Americans care more about ethics in Washington. 

So here‘s what it boils down to:  Do Americans care more about the war on terror or corruption in Congress? 

More on this later.

But first, the Senate Judiciary Committee voted today on a party line vote to advance Judge Samuel Alito‘s Supreme Court nomination to the full Senate. 

Republican Senator Sam Brownback is from Kansas.  He‘s on the committee.

And Democratic Senator Ken Salazar is a member of what we call the Gang of 14 who work somewhere in the middle politically. 

Let me go to Senator Brownback. 

Did it surprise you it was straight party today? 

BROWNBACK:  It didn‘t surprise me today. 

It did make me uncomfortable, because I don‘t think these things should be on a party line vote.  It wasn‘t a party line vote on John Roberts and yet very similar answers to questions from Judge Roberts as there has been from Judge Alito. 

So it appears as if Judge Alito is being put through a different set of standards than what John Roberts was given two or three months ago and I think that‘s unfortunate.  I think it‘s a political set of standards.

MATTHEWS:  What are the standards?  Why do you say they‘re different?

What‘s different? 

BROWNBACK:  Well, I don‘t know why they are putting him through a different set of standards. 

You ask on key questions, on executive powers and they both answer virtually the same way.  You ask questions on tough things like Roe v.  Wade, they both answer virtually the same way. 

I don‘t know why, but this one has been deemed to be a political vote and the other one, no, this is more about the Supreme Court.  I think that‘s very unfortunate.  And I think it‘s going to cause people in the future to say, “Well, I guess when we vote on judges, we should be voting politically, not how we look at them judicially.” 

MATTHEWS:  OK. 

Let‘s go to Senator Salazar from Colorado. 

Senator Salazar, do you agree there was some kind of different standard for Alito? 

SALAZAR:  I don‘t think there‘s a different standard for Alito. 

You know, I voted for Judge Roberts.  I voted for 25 of 29 of the president‘s nominees to the courts in our country. 

I think the problem with Judge Alito is that there is a strong body of records that really show that he is very far to the right. 

And from my point of view, I don‘t want a judicial activist on the bench.  I want somebody that‘s going to check their political and personal ideology at the door and come in and be a fair and impartial judge. 

In the case of Judge Roberts, I think that‘s the case.  In the case of Judge Alito, it isn‘t the case. 

MATTHEWS:  Do you believe, Senator Salazar, that Judge Alito left a window open to repeal Roe v. Wade? 

SALAZAR:  Yes.  I think that he gave a lot of non-answers to many of the questions, including the questions that were asked to him about civil rights and the power of the executive branch. 

You know, it was Judge Alito who has been one of the great advocates of the unitary power of the executive branch of government. 

And I think when we‘re dealing with the kinds of times that we‘re dealing with today, the issues of torture, issues of spying on Americans, it‘s really important that we have appropriate checks and balances in our country and that means that this whole theory of unitary executive is something which I think is fatally flawed, because it wasn‘t the kind of checks and balances that our founders intended when they put together our government. 

MATTHEWS:  Senator Brownback, do you believe that Judge Alito left a window open to repealing Roe v. Wade? 

BROWNBACK:  I think he left it undecided the same way John Roberts did. 

He said there‘s stare decisis on Roe v. Wade, which means that it‘s a precedent, it should be honored as a precedent.  But that doesn‘t mean it can‘t be overruled the same as Plessy v. Ferguson, which established the sort of separate and equal system—was overruled eventually.  And some 200 cases have been overruled.

And this notion on the unitary executive—the unitary executive is simply about a policy that says that there‘s only one president.  It isn‘t some sort of, the president is overall and overpowering and over the courts and over the legislative branch.  That‘s not the case.  It just says there‘s only one president at a time, which I think everybody basically agrees on. 

MATTHEWS:  Would you, Senator, like Judge Alito to be part of a court majority that overruled Roe v. Wade? 

BROWNBACK:  I would like to see that take place, but I don‘t know that he is going to rule that way. 

I don‘t—there‘s indications that he could go either way.  He is undecided and not—has not indicated which way he will go on this. 

I‘m pro-life and I believe strongly in the right to life.  But we don‘t know how he‘s going to rule on this case. 

MATTHEWS:  Well, why do you like him if you don‘t know how he‘s going to rule? 

If you‘re for getting rid of Roe v. Wade and getting rid of a constitutional guarantee of a right to abortion, why do you want a guy who you don‘t know where he stands on that issue?  Why are you so enthusiastic for him? 

BROWNBACK:  I wouldn‘t say I‘m so enthusiastic for him based on that issue.

What I‘m enthusiastic about is I think you see a person here of a good judicial philosophy that‘s ruled on a number of cases that you‘ve been able to look at on a number of different areas and I think he shows a good judicial temperament and a willingness to have judicial restraint where it‘s not the court taking over every issue, but more mindful of the role of the court in the society.  That‘s what more has me enthusiastic about him than anything about Roe v. Wade. 

MATTHEWS:  Let me ask Senator Salazar.

Is the Democratic Party a—according to the numbers in the polling, it‘s a pro-choice party; in other words, a party that support abortion rights.  Is that the way you see your party? 

SALAZAR:  Chris, I do not. 

You know, I think there are many people in our party who are so-called pro-choice, but I also think there are many people in our party who aren‘t. 

I think our party is one of the big tent, you know. 

I don‘t believe that the 25 judges that I voted to confirm share—you know, many of them share the views of NARAL or other pro-choice groups, but I don‘t think that‘s the issue here. 

I think that the issue here is whether or not we are going to have a justice on the Supreme Court who is going to uphold settled law. 

You know, in the case of Judge Roberts, when he was asked about Roe v.  Wade, he went into some detail on other cases, including the Casey case and other cases, that give us a sense that he is going to have great respect for the precedence of the court. 

I‘m not so sure that we got those same kinds of answers from Judge Alito.  In fact, when I reviewed those portions of the transcript, I thought that there were a lot of non-answers. 

Now, I happen to be one who in many cases will support, even in the political spectrum, pro-life candidates.  I think that‘s fine.  But I also believe that it‘s important for whoever we put on the Supreme Court to recognize precedent and the concept of stare decisis in an unequivocal way, in the way that I think Judge Roberts articulated it in the hearings.  I didn‘t hear that same kind of language coming from Judge Alito. 

MATTHEWS:  Well, I‘m having a hard time reconciling what you both are saying and what your parties are saying. 

Clearly, Senator Brownback, the Republican Party is pro-life these days.  It‘s been ever since, I believe, Reagan.  And the Democratic Party has been pro-choice in its platform.

But let‘s look here, because there‘s something going on here about the big fog machine here.  Here‘s Howard Dean, the chairman of the Democratic Party, on HARDBALL talking about the abortion issue. 

(BEGIN VIDEO CLIP)

MATTHEWS:  Your party is a pro-choice party? 

HOWARD DEAN, CHAIR, DEMOCRATIC NATIONAL COMMITTEE:  No.  My party respects everybody‘s views, but my party firmly believes that the government should stay out of people‘s personal lives. 

MATTHEWS:  But you‘re a pro-choice party?  Are you not?

(CROSSTALK)

MATTHEWS:  You sound like you‘re against them for being pro-life; are you pro-choice? 

DEAN:  I‘m not against people for being pro-life. 

I actually was the first chairman who met for a long time with pro-life Democrats...

(CROSSTALK)

MATTHEWS:  The people believe the Republican Party, because of its record, supports the pro-life position.  Does your party support the pro-choice position? 

DEAN:  The position we support is a woman has a right and a family has a right to make up their own mind about their health care without government interference.

MATTHEWS:  That‘s pro-choice. 

(END VIDEO CLIP)

MATTHEWS:  Senator Salazar, why is the Democratic Party, which has supported the woman‘s right to choose an abortion for years now, now getting tongue tied and unable to actually say it. 

You‘re going to vote as a party against Judge Alito, maybe it will be one guy, Ben Nelson of Nebraska, but your whole party is going to vote against Alito apparently on the issue of abortion rights and yet you won‘t say it. 

SALAZAR:  I disagree with that characterization, Chris. 

I don‘t think they‘re going to vote against Judge Alito because of his position on abortion.  I think they‘re going to vote against Judge Alito because of the fact that they view him as an activist judge very much to the right wing of America. 

And for me, the issues of civil rights and equal opportunity are those issues that are very important, which I think the Supreme Court has been at the vanguard of leading those issues. 

I wanted to see someone on the Supreme Court like Sandra Day O‘Connor, someone appointed by Ronald Reagan, a Republican, somebody who is moderate and mainstream.  That‘s what I was hoping this president would give us to respect (ph) her replacement, yet we got somebody who‘s further to the right. 

You know, on the issue of abortion, you know, the fact of the matter is that I think that both wings of this debate are too polarized. 

I think the so-called pro-choice and pro-life party have failed to come up with a common ground on how we can get to a point where we have less abortions.  You know, I think we can do that if we were to have a civilized dialogue on this very contentious issue of the 21st century here in America and yet we have failed to do that because people seem to get polarized into different camps. 

MATTHEWS:  Let me ask you, Senator Brownback.

How is this—these hearings on Judge Alito helped your cause of basically getting rid of abortion in this country? 

In other words, it was a long debate, everybody has talked around it, and yet it seems like there‘s an amazing coincidence between Democrats who are going to vote against this nomination and Republicans who are going to vote for it.  And the coincidence is that if you poll Republicans, they‘re pro-life generally.  You poll Democrats, they‘re pro-choice generally.  Their parties are voting the way the people at home want them to vote, generally, and yet nobody wants to admit it. 

BROWNBACK:  Yes.  I think you‘re accurate on him being voted against because he may rule a different way on Roe vs. Wade than support it.  We don‘t know how he‘s going to rule on Roe vs. Wade. 

When Sandra Day O‘Connor was appointed, she was a Goldwater Republican, a conservative, and she votes pro-life the first couple of years and then moves and shifts.  Byron White was appointed by John Kennedy, a liberal Democratic president and votes against Roe vs. Wade. 

You don‘t know when people get on the bench, and what I see taking place right now is a partisan litmus test that the Democrats are putting on Judge Alito that they didn‘t do on John Roberts and it seems to be more setting up for future election cycles than really looking at what the guy said, which is very similar to what Judge Roberts said. 

MATTHEWS:  Let me go to Senator Salazar.  Do you know any Democrats besides Ben Nelson who are going to vote for this fellow for the Supreme Court? 

SALAZAR:  I have not heard of anyone voting for him but I have not had conversations with most of my colleagues on those positions relative to this point. 

MATTHEWS:  It seems to me if somebody came from Mars right now and tried to figure out this vote later this week, the simple answer would  be abortion rights. 

Anyway, thank you Sam Brownback of Kansas, Senator Ken Salazar, one of the gang of 14 in the political middle on this issue from Colorado. 

Coming up, Supreme Court nominee Samuel Alito wins the support of the Senate Judiciary Committee 10-8, a party line vote, and now it‘s on to the full Senate. 

Next we‘ll talk to Democratic strategist, Hilary Rosen, and Republican lawyer Ben Ginsberg.  

And a reminder, as part of HARDBALL‘s “Decision 2006” coverage and our run-up to the president‘s State of the Union address next Tuesday, we want to know what issues you would like the president to address next Tuesday night, so go to hardball.msnbc.com and register your vote.  The votes are already coming in.  You‘re watching HARDBALL on MSNBC. 

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SEN. ORRIN HATCH, ® UTAH:  If you look at his record, he‘s what a really true judge ought to be and I think my colleagues are right, this is not about results, this is not whether the little guy wins or the big guy wins, it‘s about the right entity winning under the law.  Judges have to live within those constraints more than anybody else. 

SEN. HARRY REID, (D) NEVADA:  Judge Alito‘s record fails to demonstrate independence from an overreaching executive and he‘s expressed many of the same beliefs that lead to today‘s abuse of power. 

(END VIDEO CLIP)

MATTHEWS:  Welcome back to HARDBALL. That was Republican and Democratic reaction from today‘s Senate Judiciary Committee vote to send Judge Samuel Alito‘s nomination to the full Senate.  It was a party line vote, 10 Republicans for, eight Democrats against. 

For more now we turn to Ben Ginsberg, a Republican attorney and an adviser to Progress for America which supported Judge Alito‘s nomination, and Democratic strategist Hilary Rosen who is not sanguine about it.  Welcome to you both.

What do you make of the fact it was 10-8, Ben?

BEN GINSBERG, FMR. RNC COUNSEL:  That it was a party line vote, that this nomination has become much more political, that the Democrats are having trouble getting traction on political issues and they have to be partisan with they should be judicial. 

MATTHEWS:  Why did Arlen Specter, a lifelong pro-choicer, at some cost to him, in terms of Republicans votes in primaries in Pennsylvania, vote for a guy who looks like he kept a window open on getting rid of Roe vs.  Wade. 

GINSBERG:  Specter is from Pennsylvania, Judge Alito sits in the Third Circuit which covers Pennsylvania.  Arlen Specter‘s known Judge Alito longer than anybody in the Senate and knows he is the type of person that should be on The Supreme Court. 

MATTHEWS:  Qualitatively.  But politically should he be on the court if you‘re Arlen Specter.  Why do you think Specter, who is a pro choicer, voted for a guy who may well—and left the window at least open?  He didn‘t sound like Roberts to me.  He sounded like Alito.  A much more conservative guy on this question. 

HILARY ROSEN, DEMOCRATIC STRATEGIST:  I think Specter is in his last term as a Senator, and—not for health reasons, but just—he has consistently had Democratic challengers, so he‘s, you know, not in favor with the Democratic party in Pennsylvania, but I think that Arlen Specter‘s most important objective, we‘ve seen it ever since he‘s become chairman of the committee, is to retain his power as the chairman of the committee.

He knows that his Republican colleagues will kick him off that chairmanship if he doesn‘t toe the line and he made that bed when he wanted to be chairman, he promised them he would support those guys and that‘s what he‘s doing.

MATTHEWS:  Are we going to get 44 Democrats voting against this nomination on the floor this week, Friday? 

ROSEN:  I think that we will. 

MATTHEWS:  Is that because of people like yourself, activists, have said you‘d better vote the party line on this abortion issue? 

ROSEN:  No because I think there‘s never been more at stake. 

MATTHEWS:  But if they thought it was important to keep the guy off the court, wouldn‘t they filibuster?  Aren‘t they just doing this to keep you guys happy? 

ROSEN:  I think the Democrats are making a mistake not filibustering.  If it matters, then it matters, and you ought to go all the way.  So I actually would take a more radical view of this than Democratic senators, who I think are playing it safer by saying, well we‘re going to vote against them until our record is clear but we‘re not going to go all the way. 

MATTHEWS:  I‘ll tell you one thing, I thought the hearings are a big waste of time, because the guy played possum, he wasn‘t going to say anything.  Your party has been smart here.  You put in people that learn how to keep quiet.  They don‘t say a word. 

(CROSSTALK)

ROSEN:  If he had said where the American people are, I will vote to overturn Roe vs. Wade, I will support extensive presidential power, I will do—

GINSBERG:  You people, your special interest groups have been making

that argument -

ROSEN:  Let me finish.  If he had said any of that, then the Republicans would have made sure he never got out of the committee.  So for the Republicans to suggest that the Democrats are being extra political because they have a points of view, it‘s the Republicans who created the litmus test that got us to this points. 

MATTHEWS:  So Judge Alito was lying to get the confirmation. 

ROSEN:  Absolutely.  He admitted he lied on his application to go to The Justice Department. 

GINSBERG:  Your special interest groups have been trying to make this

argument about Samuel Alito for three and a half months now.  You convinced

the American people, 34 percent of the people -

(CROSSTALK)

MATTHEWS:  I will try to take some myself, at least morally.  I think he‘s more conservative than Roberts.  I think it‘s more likely, just  watching the testimony every day, that he has left the window open to maybe reverse Roe v. Wade.  I thought Roberts closed the window.  Do you believe that.  There are differences between the two of them, or do you think they are both open to changing the law and outlawing abortion?

ROSEN:  I think Roberts clearly demonstrated more reverence for core precedent.

MATTHEWS:  For precedent.  What do you think?

ROSEN:  And Alito clearly left the door open, because that‘s where he was and that‘s where his history is.

(CROSSTALK)

MATTHEWS:  Do you believe the same thing, that Roberts was pretty clear, he said stare decisis over and over again, precedent, precedent, precedent.  But Alito a couple of times, at least once, seemed to be saying I‘m keeping my powder dry, I have an open mind on this. 

GINSBERG:  I think this is counting angels on the head of a pin. 

ROSEN:  Ginsberg‘s going to give you the Alito answer. 

GINSBERG:  I‘m not giving you the Alito answer.

(CROSSTALK)

MATTHEWS:  Do you think he‘s more likely to reverse Roe v. Wade than the other guy?

GINSBERG:  No, I don‘t think you can make that assumption.  I think that these guys, when they get cases before them, react in certain ways to the fact of the case.  And I think all this analysis is part of the rhetorical ploys of the left that have not worked.  And now you‘ve got Democratic senators out voting in a partisan way, with Senator Reid‘s spokesman saying this is all part of the pre-rebuttal of the State of the Union.

MATTHEWS:  Look, you got Roberts approved.  He‘s on the court now.  We just saw a big vote and I‘m not sure where I stand—it doesn‘t matter where I stand.  But that vote about right to die and you know, that thing in Oregon—was it Oregon?  Where you see clearly saw a 6-3 vote with Roberts joining the conservatives, joining Thomas and joining Scalia.  So clearly it does matter who gets on the court, right? 

GINSBERG:  Absolutely it matters. 

MATTHEWS:  But you folks keep putting conservatives on the court, fair enough.  But you got to call them conservatives.  You can‘t just...

GINSBERG:  Right.  They are conservatives, but when it comes down to judging on particular cases, that‘s where the leap into political rhetoric goes, as opposed to looking at the overall philosophy and acknowledging that when a judge gets on a court, the facts of the case and the particular law that applies matters.  And you can‘t make these broad generalizations, Ms. Rosen.

ROSEN:  You know, if we went down that road, then Justice Scooter—

Souter wouldn‘t be the disappointment to the left. 

MATTHEWS:  Scooter Libby?

(CROSSTALK)

ROSEN:  We might have gotten there.  Justice Souter wouldn‘t be the disappointment to the right wing that he is and would not have been so discounted by these guys. 

MATTHEWS:  OK, when we come back, I want to talk about something.  I want to turn over the pill.  We‘re not going to talk about abortion rights here anymore.  I want to talk about the issue of executive power and privacy and who seems to be winning the argument in terms of how we live in this country.  What kind of country do we want to live in?  A country where there‘s a big brother watching us, who‘s good at protecting us, or a country where we don‘t have a big brother?  We‘ll be right back with Ben Ginsberg and Hilary Rosen.

Later on this show, the White House blitz on the NSA surveillance story.  That‘s what I‘m talking about.  You‘re watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  We‘re back with Republican strategist and former counselor to President Bush, Ben Ginsberg; and Democratic strategist Hilary Rosen. 

I want to talk about something that most Americans argue about all the time, which is what kind of a country we want to live in?  A country where security is very good, almost perfect and a country in which we have more freedom but the security is not so good?

According to the latest CNN/”USA Today”/Gallup poll, 46 percent of Americans think the Bush administration is right to wiretap without a court order.  That‘s a 4 percent drop from two weeks ago.  So if look at—hold up that number for a while there—it‘s clear that over the last several weeks, last two weeks, that the president‘s losing this argument, Hilary,  about whether he should be allowed to do surveillance electronically without a court order. 

ROSEN:  Well, I don‘t want to be so political about this.  I‘ll just be more analytical.  The president is talking about it a lot.  They‘ve gone on a determined P.R. blitz. 

MATTHEWS:  But he‘s losing this argument narrowly here.

ROSEN:  Because the more they talk about it, the more skeptical people become.  Because they‘re trying to understand it, they‘re struggling with it. 

And here is where I think Congress really plays an important role if they want to act like a third independent branch of government.  The administration should stop this P.R. blitz.  The more they say, the more they‘re at risk that when congressional hearings happen, something they‘ve said will have turned out to be not true. 

We don‘t know who they‘re wiretapping.  We hear stories about them going after political protesters.  This looks like a political vendetta.  People start to think about the old Nixon days.  This just gets to be a mess at the White House. 

GINSBERG:  I think you need a separation the facts from reality. 

(CROSSTALK)

GINSBERG:  Well, the president has—the administration has really just started talking about this and making the defense since yesterday, which those numbers don‘t reflect.  And this is—this is an argument that comes down to two things. 

Number one is the executive versus the legislative branch, a historic argument.  And the second is, do you trust the president to keep this country safe?  And that‘s where he‘s doing well and going to do well, because at the end of the day, this is, as I think they‘re starting to show, a policy that actually helps to protect the country. 

MATTHEWS:  Let‘s take a look at the other polls that may make your case.  The CNN/”USA Today/Gallup poll, same poll, shows that two-thirds of Americans have a great deal or a moderate amount of confidence in the Bush administration‘s ability to safeguard the U.S. against terrorism.  And 41 percent of Americans think the U.S. is winning the war on terror now, a seven point jump since August.

The argument here is that—I mean, everybody knows what we‘re talking about.  OK, the president is pushing a little too far here, we don‘t really like the fact he‘s surveilling some people that we may not even know who they are.  But overall, we want a tough guy running the country and defending us.  That seems to be the way the polls are showing.  They don‘t like the surveillance marginally, but they love the fact that they have a strong president looking out for them. 

ROSEN:  That‘s what they want, but that last poll just showed that more people still believe that we are not winning the war against terrorism than we are.  And you know, it‘s a slim margin, margin of error, but it‘s...

MATTHEWS:  He‘s picked up 7 points in two weeks with this argument. 

ROSEN:  But we‘re still not there, and the president hasn‘t closed this book on why this helps win the war on terror. 

GINSBERG:  That‘s part of why I think the Senate hearings will be very helpful to lay out that case.  The basic question you still have to answer is if two al Qaeda people are talking in Europe, everyone agrees it‘s OK to do their surveillance.  If one of those al Qaeda people calls up somebody in the United States, should they have to hang up the phone?  That‘s the position that you‘re making.

MATTHEWS:  Should the Army or the Defense Department be doing surveillance on the peanut butter brigade against Halliburton?  You got a bunch people handing out peanut butter and jelly sandwiches as a demonstration against Halliburton‘s arguable profiteering here.  Why should those people be under surveillance by the Defense Department?

GINSBERG:  If that‘s part of the wiretap surveillance issue that we‘re talking about, then that‘s something the administration‘s going to have to justify and rationalize...

MATTHEWS:  Can they do it to you?

GINSBERG:  ... if that turns out to be true. 

MATTHEWS:  Would you buy it? 

GINSBERG:  No, I wouldn‘t buy it, but I‘m not an al Qaeda person and if you read Gonzales‘ -- Attorney General Gonzales‘ speech today, these are carefully circumscribed surveillance mechanisms, but it‘s necessary. 

ROSEN:  Nobody is complaining about an instance where a known al Qaeda operative is calling someone in the United States, that person is being surveilled.

GINSBERG:  That‘s not right, that is part of the complaint. 

ROSEN:  Nobody‘s complaining about that.

GINSBERG:  That‘s not right. 

(CROSSTALK)

GINSBERG:  That‘s what the suit is about. 

MATTHEWS:  The ACLU is against any kind of data mining of this kind. 

GINSBERG:  That‘s exactly correct. 

ROSEN:  Well, regardless of whether the ACLU...

(CROSSTALK)

ROSEN:  I think there are a lot of them.  But that is not the case here.  What we‘re talking about is fishing expeditions.  That‘s the offensive thing to American people, when they don‘t have that kind of direct evidence.  And that has not been shown to be the case and what we are seeing is widespread political operations instead.          

GINSBERG:  You are right, if there are fishing expeditions going on against Americans without the proper rationalization, then that is a problem and it will have to be justified but there‘s no proof of that.  That‘s precisely what the president and the attorney general has said.       

MATTHEWS:  It‘s surveillance versus security versus freedom and all the things we should be talking about.  Thank you Ben Ginsberg.  Thank you Hilary Rosen.  Up next, the White House is firing on all cylinders to defend what we‘re talking about here.  N.S.A. spying.  You‘re watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

(MARKET WRAP)

MATTHEWS:  Welcome back to HARDBALL.  A week before the State of the Union address, the Bush administration is launching an all-out media campaign to defend the N.S.A.‘domestic spying program and Democrats are positioning themselves as the party to clean up corruption in Congress. 

In the end which issue will resonate with Americans, corruption or security or surveillance? 

Ed Rogers is a Republican strategist and former aide to the first President Bush and Steve McMahon is a Democratic strategist. 

I just think the State of the Union is coming up this Tuesday, we‘re having a big runup on it here, the day before, just down in Texas talking to Tom DeLay and his opponent, probable opponent.  What would you rather have here, the issue of corruption? 

By the way, the president is going to be walking right into the belly of the beast, he‘ll be giving his speech in the chamber of the House of Representatives, where all the problems are, Robert Ney and everybody else, Tom DeLay perhaps.  All of that going on around him while he‘s going to be what, saying corruption is not the issue, the issue is national security and the need to surveil the enemy.              

STEVE MCMAHON, DEMOCRATIC STRATEGIST:  I think we have the issue of corruption.  This is a Republican scandal and it goes all the way from Congress up to the White House.  The leadership at every level is implicated in some way, weather under indictment, under investigation or awaiting trial. 

But if you think about security, I mean, he‘s not winning that argument.  You just had a poll a little while ago on your show that indicated the more he talks about it, the more people wonder just why it is that it‘s so important that they conduct the surveillance.        

MATTHEWS:  What‘s the big issue to you, Steve McMahon, Democratic strategist.  What is more important to the country, the fact that we have a focus on national security which may be over the line but it‘s definitely focused there.  The president may be doing too much, too much big brother, but he is Mr. Security, or corruption?  What is the bigger issue in this election?

MCMAHON:  Security is a bigger issue, but Democrats—you know, there‘s not a Democrat out there that doesn‘t think you ought to be able to wiretap al Qaeda members.  But there are a lot of Democrats out there who think that there‘s a piece of legislation passed by Congress to deal specifically with this matter that set up a court system and 2,000 warrants have been gotten through the court system and only three have been turned down.         

ED ROGERS, FMR. BUSH 41 AIDE:  It doesn‘t apply.                 

MCMAHON:  Yes it does apply.  If it didn‘t apply, the White House should have gone up to the hill and said we need additional authority.              

ROGERS:  They did all of that.  The president hopes that the State of the Union address is going to talk about peace and prosperity and I hope he‘s going to talk about the wiretap issue.  Maybe I‘m missing something, but I love this issue for us, in a partisan context. 

In Washington, we always say, a bumper sticker beats an essay.  Right now the Republicans have a bumper sticker.  The Democrats have a convoluted essay, and the degree to which the election is going to be about who is tougher on terror and who is not, that‘s a clear Republican advantage. 

This notion that we‘re going to say peace and prosperity, we‘re tough on terror and they‘re going to say wait a minute, there was a scandal 10 or 11 months ago that we‘re partially implicated as well, is ridiculous.  Also the next member of Congress to go to jail on a corruption charge is going to be a Democrat.                

MCMAHON:  Here‘s a bumper sticker --        

MATTHEWS:  Bill Jefferson?

ROGERS:  I won‘t mention any names, but yes.

MCMAHON:  Do you think he‘s going to beat Randy Cunningham there?  Here‘s a bumper sticker, don‘t you think it‘s time for the president to tell the truth.  Just yesterday we found out Karl Rove gave a speech and the President has intimated it‘s only al Qaeda members calling Americans here that were under surveillance. 

There were 10 peace protesters handing out peanut butter and jelly sandwiches at Halliburton that you were talking about on your show just last night.           

ROGERS:  That‘s part of the essay.  The Republicans have an aggressive forthright tack on national security and the war on terror.  The Democrats are wanting our war on terror to be more lawyer driven.  The Republicans are wanting it to be more special forces driven.  I‘ll take that argument in a political context any day. 

The Democrats are reverting to form, since the end of the cold war, we have sort of—national security issues diminished somewhat and I think it‘s partially what elected Bill Clinton.  Now we have a 21st century national security issue where again the Democrats are reverting to form as being more passive, more docile, more weak on national security issue.  I like this NSA issue.       

MCMAHON:  This is a country of laws and the ends don‘t justify the means and the problem this administration has is too many Americans have figured out that their point of view on the world is we can do anything we want, the rules don‘t apply to us, the laws don‘t apply to us.  If we want to reveal the name of a covert CIA agent, we‘ll do it.  If we want to say the president shook hands with Abramoff and didn‘t ever have a meeting with one of his tribal clients, we‘ll do that.

The problem for these guys is truth catches up with them.         

MATTHEWS:  How do you explain the incredibly low number on what people think of Congress and it‘s run by Republicans. 

What‘s wrong with the bumper sticker “Throw the bums out?” 

ROGERS:  That‘s a quick one.  “Throw the bums out,” can be a compelling message, but in a time of relative prosperity, it is very unlikely for that to get traction.

So on Election Day, look for a stock market that‘s above 11,000, look for a growth rate that‘s near 4 percent, look for gas prices—and watch this one—look for gas prices that outside the East Coast are below $2 a gallon. 

MATTHEWS:  Are you assuming that—just to get some—because I think events drive elections as much as arguments. 

(CROSSTALK)

MATTHEWS:  And your arguments are as good as anybody‘s, I suppose.

But suppose you have this whole string of indictments of U.S.  congressmen, overwhelmingly among Republicans; that doesn‘t put your party in trouble? 

(CROSSTALK)

ROGERS:  Sure.  We could work out a hypothetical that could be...

(CROSSTALK)

MATTHEWS:  You‘ve got all these Republican staffers squealing, they‘re singing like song birds up there to the U.S. attorney, and you‘ve got people all around the—DeLay‘s former office staffers, you got Robert Ney involved.  I don‘t even want to get into names, but the names are all over the place. 

ROGERS:  Sure.

MATTHEWS:  And there are Democrats—I mean they‘re Republicans...

(CROSSTALK)

MATTHEWS:  You think you can withstand a summer of indictment? 

ROGERS:  The answer to that is we will see.  And I think the Abramoff footprint is going to be much smaller than is popularly conveyed in the press right now. 

MCMAHON:  Do you think the president and the White House are going to release the Abramoff photographs? 

(LAUGHTER)

(CROSSTALK)

ROGERS:  I don‘t think they should. 

(CROSSTALK)

MATTHEWS:  Why not?

ROGERS:  Well, I mean, right now the issue is this:  Mr. President, you have some photos that may be embarrassing to you and may associate you with a scandal; would you please release those photos?  The answer to that question should be no, absolutely not. 

MCMAHON:  They were paid for with taxpayer dollars. 

ROGERS:  How do you know that? 

MCMAHON:  Well, it was a White House photographer...

(CROSSTALK)

MATTHEWS:  Why do you assume they‘re so bad?

(CROSSTALK)

MATTHEWS:  Why do you think they‘re so naughty that we shouldn‘t want to see them? 

ROGERS:  I think right now the president‘s political opponents want to

are desperate to associate him with a scandal.  That‘s why they‘re calling for it. 

(CROSSTALK)

MATTHEWS:  Aren‘t we imagining they‘re sitting there huddling together, mapping strategy, cutting deals? 

(LAUGHTER)

It may just be one of these...

(CROSSTALK)

MCMAHON:  It may be.

But you know what?

This is another example—the White House first said the president didn‘t know Abramoff and then they said, well, maybe he met him a couple of times. 

(CROSSTALK)

MCMAHON:  There‘s allegedly a photograph that has him in a meeting with one of Abramoff‘s tribal clients where the president apparently gave a 15-minute recitation...

(CROSSTALK)

ROGERS:  That‘s the problem with the Democrats, they overreach and exaggerate. 

MATTHEWS:  What were they doing in the meeting?

How do you have a 15-minute meeting...

(CROSSTALK)

ROGERS:  There‘s too much grandstanding. 

(CROSSTALK)

MCMAHON:  There are contemporaneous accounts of what apparently occurred at the meeting.  I don‘t know what occurred.  I certainly wasn‘t there.  Maybe, Ed...

(CROSSTALK)

MATTHEWS:  I‘ve never heard of a 15-minute long photograph. 

(CROSSTALK)

MCMAHON:  No, no.  It was a 15-minute long meeting between the president and one of Abramoff‘s clients. 

ROGERS:  According to Steve, according to Steve.

(CROSSTALK)

MATTHEWS:  You know what?  I disagree with you there.

I think we want to see those pictures.  We love pictures. 

(CROSSTALK)

ROGERS:  I‘m sure we want to see them.  There‘s no doubt we want to. 

Whether or not it‘s wise for the White House to release them. 

(CROSSTALK)

MATTHEWS:  You just keep holding on to those pictures.  It‘ll make them more hot by the time they come out.

Thank you, Ed Rogers and Steve McMahon.  I know you know better.

Up next, do pictures of President Bush with Jack Abramoff reveal anything about the lobbyist‘s connection, if any, to the White House?

“Time” magazine‘s Mike Allen (ph) and “Congressional Quarterly”‘s Craig Crawford (ph) when we return. 

You‘re watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back. 

For weeks, the Bush administration has sought to portray the corruption scandal over Republican lobbyist Jack Abramoff as a congressional problem, but the fireworks today were at the White House. 

The president‘s staff is refusing to release photographs—apparently a half dozen of them—of Mr. Bush, the president, and Jack Abramoff together.  That is sparking charges of a White House cover-up, a stonewall at least. 

HARDBALL correspondent David Shuster has the report. 

(BEGIN VIDEOTAPE)

DAVID SHUSTER, HARDBALL CORRESPONDENT (voice-over):  Nearly three weeks after White House officials denied President Bush knew or remembered meeting Jack Abramoff, the White House now acknowledges there are at least half a dozen photographs of the two men together.  And “Washingtonian” magazine reports that on one occasion President Bush knew enough about Abramoff to ask about the lobbyist‘s children.

So why did Press Secretary Scott McClellan make this statement earlier this month? 

(BEGIN VIDEO CLIP)

SCOTT MCCLELLAN, WHITE HOUSE PRESS SECRETARY:  The president doesn‘t recall meeting him and he certainly doesn‘t know him. 

(END VIDEO CLIP)

SHUSTER:  At the White House today, the confrontations were tough. 

MCCLELLAN:  There‘s a difference between responding to questions like that and engaging in a fishing expedition that has nothing to do with the investigation. 

SHUSTER:  McClellan is not the only White House official whose credibility on the Abramoff story has been hit. 

Yesterday, Presidential Counselor Dan Bartlett told the “Today Show” that Bush and Abramoff only interacted at holiday parties. 

DAN BARTLETT, WHITE HOUSE COMMUNICATIONS DIRECTOR:  We acknowledge that he attended some Hanukkah receptions. 

SHUSTER:  But “Time” magazine reported on Sunday that one of the photos is from a May 2001 meeting, when Abramoff posed with President Bush and some of Abramoff‘s tribal chief clients. 

One of the tribal chiefs has told MSNBC the White House meeting with Abramoff and President Bush was set up by anti-tax crusader and White House adviser Grover Norquist, and the tribe says it wrote Norquist this $25,000 check for the visit. 

The tribe‘s lawyer spoke to HARDBALL earlier this month. 

JIMMY FAIRCLOTH, ATTORNEY, LOUISIANA COUSHATTA TRIBE:  The tribe believed that Abramoff knew the secret handshake.  He knew the way to get influence in Washington and the tribe followed him down that path. 

SHUSTER:  Norquist, a friend of Abramoff‘s from their days as college Republicans, denies the tribe‘s check has any link to the White House meeting. 

In any case, this is not the first time presidential press secretary Scott McClellan has faced questions about the line he has put out. 

McClellan took heat for falsely stating that Karl Rove and Scooter Libby were not involved in the CIA leak investigation. 

(BEGIN VIDEO CLIP)

TERRY MORAN, ABC NEWS CORRESPONDENT:  You said this morning, quote, “The president knows that Karl Rove wasn‘t involved.” 

How does he know that? 

MCCLELLAN:  Well, I‘ve made it very clear that it was a ridiculous suggestion in the first place. 

I mean, it‘s public knowledge.  I‘ve said that it‘s not true and I have spoken with Karl Rove. 

(END VIDEO CLIP)

SHUSTER:  Last year, after Libby was indicted and Rove was under investigation, McClellan fell back on to this. 

(BEGIN VIDEO CLIP)

MCCLELLAN:  We need to let this legal process continue.  The special counsel indicated the other day that it is ongoing. 

(END VIDEO CLIP)

SHUSTER:  Jack Abramoff and Karl Rove have a long history together, and Abramoff‘s lobbying of George W. Bush dates back to when Mr. Bush was governor of Texas and Abramoff had clients concerned about actions in the state legislature.

(on camera):  Nobody has suggested, however, that Abramoff is going to make accusations about anybody in the White House.   So the administration‘s refusal to release Bush/Abramoff photographs or details Abramoff‘s meetings with White House staffers in order to get the story over with all puzzle some Republicans on Capitol Hill.  And these Republicans argue that the White House strategy, while possibly helpful in the short run, may in the long run keep this stench around. 

I‘m David Shuster for HARDBALL in Washington. 

MATTHEWS:  Thank you, David Shuster.  For more of the rough and tumble, we‘re joined by “Time” magazine‘s Mike Allen and “Congressional Quarterly”‘s Craig Crawford. 

Craig, the old political rule was, it‘s like fish.  Put it out, get rid of it, because it starts to smell.  Even something stupid like a picture. 

CRAIG CRAWFORD, “CONGRESSIONAL QUARTERLY”:  You know, there was only two alternatives here, it seems to me, for their strategy, or two reasons for it.  I think one is to make the story go away.  The other is to keep the story alive.  And I‘ve begun to think this White House wants to stay in the news.  The more they stay in the news, the less we begin to think they‘re irrelevant. 

MATTHEWS:  Don‘t they begin to look like the guy out there with the postcards he‘s going to show you?  Come here, I want to show you these pictures, you know?  It makes it seem pretty furtive, that they‘ve got something they don‘t want us to look at.  Mike Allen?

MIKE ALLEN, “TIME” MAGAZINE:  Well, Chris, they originally had planned to put out the list of meetings and what is known about contacts between the president, Mr. Abramoff.  They now have decided they‘re not going to put out additional information.  Nobody blames Scott McClellan for that.  The decision was made.  They‘re not going to do this and so he has to go out there everyday and hold that ground.  And luckily he has a sense of humor about it.

CRAWFORD:  For a White House claiming the right to spy on anybody it wants to, they don‘t want to tell us much about what they‘re up to. 

MATTHEWS:  You just thought of that right now?

CRAWFORD:  Yes.

MATTHEWS:  You had another quote about this.  What was it—what were you saying? 

CRAWFORD:  Well, I mean, listening to these quotes in David‘s package makes me think of Bill Clinton when he stood in the Roosevelt Room and said I did not have sexual relations with that woman.  This is the platonic version.  I did not have relations with that man.

MATTHEWS:  OK, let‘s play it tough here, Mike.  So what?  So what if the president met with the guy?  He meets with thousands of people.  When we go to—when we reporters all go there Christmastime, we wait in the Santa Claus line, we get our picture taken with him.  We‘re not on intimate terms with him.  I know, he knows who we are, maybe.  But we don‘t hang out, we don‘t deal, we don‘t have any relationship beyond the most courteous kind of Mr. President kind of relationship.  What‘s that tell you about Abramoff that he might show up in a couple White House pictures?

ALLEN:  Yes, it‘s exactly—they point out the president has taken tens of thousands of pictures.  But what they‘re saying is he did not have a personal relationship with him.  And in fact, there is no indication that that was the case. 

MATTHEWS:  What does that mean?

ALLEN:  Well, it‘s certainly broader than saying the president does not remember meeting him.  Now we know that he‘s met him. 

CRAWFORD:  I mean, I don‘t understand why they just don‘t go ahead and put it all—give a full accounting of the president, the White House relations. 

MATTHEWS:  Well, it could be it‘s the week before the State of the Union.  You guys—and “Time” and everywhere else will spread it all over the magazine the whole weekend.  The morning—Monday morning pictures will be the president hanging out with Jack Abramoff on the front cover of “Time.”

ALLEN:  Yes, I mean, their idea is...

MATTHEWS:  That‘s one reason not to put it out. 

ALLEN:  Right, their idea is don‘t abet the frenzy.  If they put out a list of 10 meetings, obviously, you know, it‘s like pouring A1 sauce when the sharks are circling.  And so the idea is to just not play the press‘ game and provide more fuel for the fire. 

MATTHEWS:  Do we have any evidence that the president was corrupt in any way with regard to Jack Abramoff? 

ALLEN:  No. 

(CROSSTALK)

MATTHEWS:  Any guilt at all? 

CRAWFORD:  I mean, what‘s corrupt?  I mean, if you raise $100 million twice to run for president...

MATTHEWS:  And Jack Abramoff.

CRAWFORD:  And Jack Abramoff, the Jack Abramoffs of the world, are central to that.  It‘s a matter of what we call corruption.

MATTHEWS:  And we‘ll be right back with Mike Allen and Craig Crawford.  And a reminder for the best political debate online, just go to hardlog or our political blog Web site.  And now you can download podcasts of HARDBALL.  Just go to our Web site, hardball.MSNBC.com.        

(COMMERCIAL BREAK)

MATTHEWS:  We‘re back with “Time” magazine‘s Mike Allen and Craig Crawford of “Congressional Quarterly.” 

You know, when we have the State of the Union, which is coming up next Tuesday night—and everybody watches it, no matter what they say—it‘s a huge audience.  Up to 100 million people watch this thing.  You‘re going to be looking at those shots in the audience, right?  Now what the Republicans have done the last week or two, and the bloggers and everybody else, is put Hillary Clinton right in focus.  You‘re shaking your head. 

That camera—I don‘t care which network you‘re watching, C-SPAN, us or anybody else—our camera is going to be going on to Hillary and getting her reaction.  Was that smart of the Republicans to sort of tee her up as the biggest face in the Democratic side? 

CRAWFORD:  Well, I think they believe that they would like to run against her in 2008, which is why they keep telling everybody in town that, you know, she‘s so strong, she‘ll be the nominee, we‘re worried.  I actually think that‘s a scam. 

MATTHEWS:  You‘re used to fakes.  Is that a head fake? 

CRAWFORD:  I think it‘s a total head fake.  I think they believe deep in their hearts they can beat the Democrats if Hillary‘s the nominees.

MATTHEWS:  It would take 40 states away from her, really roll it up. 

CRAWFORD:  Yes, yes. 

ALLEN:  Putting aside whether they want to or not, I think that they believe that she is going to be the person they‘re running against.  And so they‘re starting to run their game...

MATTHEWS:  They‘re already running her... 

ALLEN:  And just as they believe the president is his own best salesperson, they believe that she is her own best impediment.  And the more that she‘s focused on, the more she‘s allowed to talk...

MATTHEWS:  LBJ in ‘66 attacked Nixon.  He said he was the perennial candidate, right?  Nixon gets all the publicity of becoming Mr. Republican in ‘66, wins the nomination in 1968, beats Hubert Humphrey in ‘68 in the general.  So sometimes when they tee up these people, or they focus on them, they get what they don‘t want. 

CRAWFORD:  Exactly.  Jimmy Carter teed up Ronald Reagan.  They wanted to run against Ronald Reagan.  They he was a kook. 

ALLEN:  This is very interesting—during the Democratic primaries, Mr. Rove and others made the point that you can be careful...

MATTHEWS:  Is that dangerous...

ALLEN:  ... you have to be careful of what you wish for. 

MATTHEWS:  Have you call him Mr. Rove?  You can him Mr. Rove really?

ALLEN:  He calls me Mr. Allen. 

MATTHEWS:  No, I wonder if he‘s that dangerous to people inside? 

ALLEN:  We were just talking about Mr. Abramoff, what are you talking about?

MATTHEWS:  Let me ask you this.  Do you think Karl Rove is smart and he thinks Hillary‘s going to be the nominee or are they trying to set her up? 

ALLEN:  Well, Mr. Matthews, I don‘t know that.  But he coined a phrase that I think we‘re going to hear a lot more of, a phrase you didn‘t hear much about from his speech.  He said the president has set himself up as one of history‘s great liberators.  And I think you‘re going to hear that again and again. 

CRAWFORD:  A lot of it is they know how to run against the Clintons.  So it‘s something—it‘s the war they fought before, so they want to fight it again. 

MATTHEWS:  You know what I‘m impressed by about Hillary?  And like every politician I talk about in this show, I have mixed feelings about them and mixed attitudes.  I like the way she didn‘t apologize for the plantation remark.  Right or wrong, an apology would have put her into full Jimmy Swaggart, put in there, out there with all the apologizers out there.  I voted for the 87 before I voted against.  It gets you in that area.  You don‘t want to be in that area.  She is in a position of strength, right or wrong.  Thank you.

CRAWFORD:  It‘s like John Wayne.  Never say you‘re sorry.  It makes you look weak. 

MATTHEWS:  Did he say that?  Anyway, Mike Allen, thank you.  Craig Crawford.  Craig Crawford, Mike Allen.

Join us again tomorrow at 5:00 and 7:00 Eastern for more HARDBALL. 

Right now it‘s time for “THE ABRAMS REPORT” with Dan.

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