updated 5/4/2009 11:18:04 AM ET 2009-05-04T15:18:04

Guest: Maria Teresa Petersen, David Corn, Kim Gandy, Ruben Navarrette, Joe Sestak, Sen. Ben Cardin, Margaret Brennan, Pete Williams, Pat Buchanan

CHRIS MATTHEWS, HOST:  Here comes the judge!

Let‘s play HARDBALL.

Good evening.  I‘m Chris Matthews in Washington.  Leading off tonight:

Hitting the Court.  One of the advantages of being president is that you get to pick the members of the Supreme Court.  One of the disadvantages of being president is you have to pick members of the Supreme Court.  That means you get blamed for not picking the people and the groups who think they deserve to be represented on the Court.

David Souter‘s decision to step down from the Supreme Court gives Barack Obama his first opportunity to remake the Court.  Ronald Reagan and George W. Bush remade the Court in a rightist direction.  Now it‘s President Obama‘s turn to move the Court leftward.  The battle to replace Justice Souter is certain to reignite all those hot button social issues, like abortion rights, that Mr. Obama has cleverly avoided.  We‘ll get to the political fight that lies ahead with two members of the Senate Judiciary Committee.

Plus: Who will it be, a woman, Latino, a politician, a legal scholar, a leader?  Already, interest groups are lining up.  Remember the battles over Robert Bork and Clarence Thomas?  Every choice has its perils, and we‘ll talk to two people with very definite and different views of what the president should do.

And Arlen Specter‘s party switch may have been good for Arlen Specter, but was it good for Pennsylvania Democrats?  They‘re already—they were already in line to elect one of their own, but not anymore.  Democrat Joe Sestak had hoped to run against Specter, many believe, and he‘ll join us later.

And another YouTube moment for Sarah Palin of Alaska.  Remember that interview Governor Palin gave while turkeys were being slaughtered right behind her?  Well, look at this.  That‘s Palin being interviewed with TLC, the show “American Chopper,” and you got to look at this.  You have to give Palin this, she‘s still out there selling herself to anyone who‘s buying. 

By the way, that‘s a dead bear right behind her there.

And finally, we‘re giving out another HARDBALL Award tonight.  This week‘s award goes to a cool customer in a tough, gritty big city.

But we begin with Justice David Souter‘s retirement and NBC News justice correspondent Pete Williams.  Pete, it is so great to have you sitting in front of me right now with this tough question.  Will the president with his first pick look to someone as a leader?  Many people are buzzing about the possibility that the Democratic president will look for a liberal Justice who will begin to lead the Court in a big, historic direction, in another direction from Reaganism.

PETE WILLIAMS, NBC CORRESPONDENT:  I think that that prospect is unlikely for the simple reason that the left of the Court already has an extremely capable leader and that‘s John Paul Stevens.  Justice Stevens is 89, but he shows no desire of stepping down from the Court.  And really, he‘s hitting his stride in the last couple of years, showing that he is a master strategist, able to assemble the Justices to come up with decisions that a few years ago might not have seemed possible—search and seizure cases, police power cases.  It‘s really been fascinating to watch, and whoever is the newcomer on the Court couldn‘t possibly hope to step into that role.

Now, maybe in several years, they could hope to aspire to the kind of strategy that Justice Stevens is an expert at.  But I think right now, he is looking in a different direction, and you know, I think the only thing is he wants someone that has all those characteristics you mentioned today plus, I assume, he‘ll want someone who is comparatively young because both of George W. Bush‘s nominations to the Court, Alito and Roberts, were in their 50s and can stay a long time, and you would think that President Obama would want someone who could have a liberal or moderate legacy for a long time to come.

MATTHEWS:  The Court‘s packed right now with people with Ivy League law degrees.  Do you think he might go with someone who‘s not from that elite background?

WILLIAMS:  Yes, I think that‘s possible, although he has a touch of that himself from the University of Chicago.  That is a very distinguished law school.  But it seems to me that what he really wants, Chris, is the female equivalent of himself, someone who is a legal scholar, knows the law, an expert on the Constitution, but has had some hard knocks, has worked on the streets, has some political experience.  If only he could find that female version of himself.

And I say that because I just assume that it‘s correct, what so many people are saying, which is he will be under enormous pressure and may well want himself to appoint another woman to the Court so we‘re back to two, as we were when we had Justices Ginsburg and O‘Connor.  But maybe he‘ll go in the direction of a judge.  Maybe he‘ll go in the direction of someone like Secretary Napolitano from Homeland Security, who is a former governor, former federal prosecutor, knows the law.  So there‘s a lot of different ways that he could go here, but I just think it would be stunning if he didn‘t choose a woman.

MATTHEWS:  What about Jennifer Granholm, the governor of Michigan?  I believe she‘s Yale law...

WILLIAMS:  Yes.

MATTHEWS:  ... has that qualification, plus the political background.  I‘ve seen her on lists.  Do these lists mean anything, by the way?  “The New York Times” had a list out.  They must have had it ready because that was already in the paper this morning.  A lot of women...

WILLIAMS:  We‘ve all had...

MATTHEWS:  Go ahead.

WILLIAMS:  Yes, we‘ve all had our own lists, and I think they all mean nothing.  There‘s only one list route now that matters, and that‘s the one we don‘t know, which is, which are the ones that President Obama is interested in?  But that‘s only going to reflect his own knowledge, and it‘s the obligation of his staff to reach more broadly and bring to him people that he may not have been aware of.

You know, the fact that Justice Souter sent the letter to the president today I think is an interesting thing, Chris, because what we had been led to believe is that Justice Souter had sent this signal to the White House earlier, telling several people that he intended to step down at the end of this term, and he wanted to do that to give the White House a head start so that they could choose someone to replace him shortly after this term ends and get on with the confirmation and have that person ready to go out by October.

So what does he do?  He immediately sends the president a letter once this becomes public.  That allows the second phase of the selection process really to switch into high gear so that they can now begin to interview people.  They can now begin to do things much more in the open, which will accelerate the process.  And I think it‘s interesting Justice Souter wanted to keep it moving along.

MATTHEWS:  OK, thanks very much, Pete Williams, getting a first take at this.

And now to go to two people who know something about it, Senator Ben Cardin of Maryland, who sits on the Judiciary Committee, and MSNBC political analyst Pat Buchanan.

Senator Cardin, do you think we live in a time where we still have sort of implicit quotas for these jobs?  You know, you and I grew up in a country where you had something called the Jewish seat, Frankfurter, before that Brandeis and Cardoza, and that sort of drifted away after—after Fortas and that problem.  And then we had the black seat with Thurgood Marshall and that sort of drifted away when we got a conservative African-American on there, Clarence Thomas.  Are we going to still try to find people to fit these molds?

SEN. BEN CARDIN (D-MD), JUDICIARY COMMITTEE:  No, I don‘t think so, Chris.  There‘s only nine Justices.  I think the president‘s going to look for the very best person he can find.  This clearly is an issue that he‘s going to take personal interest in.  I heard you talking about lists.  The only list that matters is the list that he‘s looking at, and I think he‘s going to try to find the very best person he can because, after all, this is a critical position.  We‘re talking about how the Supreme Court could perhaps in (ph) critical decisions.

So I think he wants somebody has a real passion for the Constitution.  President Obama taught constitutional—taught criminal law, constitutional law as a professor.  I think he‘s going to look for someone in that mode.

MATTHEWS:  What‘s wrong with picking someone who‘s not a legal scholar, picking something with, obviously, a law degree but who has had a more practical experience in life?  The president himself, as a candidate, said that he was looking for someone who‘s had some real life experience.  Here he was, by the way—well, let‘s go with that thought, just the idea of picking somebody with real life experience, not who‘s lived in chambers most of their life.

CARDIN:  I don‘t think there‘s any formula as to who the person should be and—or what the background is, whether the person‘s involved in a political life or an academic life.  I think you want to try to get the very best person.  I don‘t think he‘ll have any specific formula of any particular law school or has to be a judge.

MATTHEWS:  Pat, let‘s talk about it there.  You‘re a conservative.  What do you think?  Do you think he‘s got—is he afraid or he‘s ready to pick a leader?  We‘ve had the experience...

PAT BUCHANAN, MSNBC POLITICAL ANALYST:  Right.

MATTHEWS:  What I like is these guys got it wrong in the old days.  Frankfurter turned out to be a conservative.  FDR thought he‘d pick a liberal.  Ike picked Earl Warren, said it was the worst decision he ever made in his life because he picked a liberal.  Can you—with the paper trail today, with all this studying of people‘s documents, are we still going to have any more serendipity anymore, or is all going to go the direction these guys program it?

BUCHANAN:  You‘re not going to have serendipity.  Warren—he also picked Brennan, Ike did.  Nixon picked Harry Blackmun.  We thought he was a conservative.  Look at George—I mean, Gerald Ford picked who?  John Paul Stevens, the most liberal member of the Court.  Reagan began to get it right, and George W. Bush did get it right.

I see Barack Obama, Chris—I think what he ought to pick is, basically, a liberal Democrat John Roberts who has real stature, impresses people, maybe even gets Republican votes.  But I think what he will do is, I think he‘s going to go for a minority, a woman and/or a Hispanic because I think he sees that as their turn.  Nixon was looking for an Italian way back when.  You know...

MATTHEWS:  He was...

(CROSSTALK)

MATTHEWS:  ... by name, by culture.

BUCHANAN:  I don‘t know if—he was looking for an Italian and a Southerner.  And I think Barack Obama will be looking for a woman and an Hispanic especially because that‘s a tremendously broad section of the electorate, growing hugely, went for him 2 to 1.  But again, he ought to go for someone who is really conspicuously highly qualified.

MATTHEWS:  OK, let me go to the senator on that.  Senator Cardin, I—this is such touchy territory, and I know we all know this, because we‘re talking about, to some extent, identity politics and groups.  And they all have their legitimate desire to have a piece of the pie.  That‘s always part of these discussions, to be honest.

CARDIN:  Right.  Sure.

MATTHEWS:  But you start getting too much into the sort of the simultaneous equation, where you say, It must be an Hispanic, must be a woman, therefore must be from the Southwest.  And you find yourself picking somebody by formula.  And then you go, Wait a minute, were they really the best pick?  And can the president really say that Clarence Thomas was the best pick, or did he just want an African-American conservative who was reliably Republican in his thinking?  And after a while, you begin to think, Well, wait a minute, this was a formula.  He was picking out somebody he wanted to program, basically.

CARDIN:  We don‘t know how many appointments a president is going to get to the Supreme Court.  This may be his only one.  You just don‘t know.  He‘s got to pick the very best.  It‘s not by what interest group you might be behind.  Look, whatever—whoever he appoints, there‘s going to be people who are going to be upset because he didn‘t pick from their special interest.  He‘s got to pick the very best.  There‘s only nine on the Court.  He can‘t say this has to be filling a particular spot.  I just—there‘s just not—it‘s too important.

BUCHANAN:  Let me—let me disagree with the senator to this extent.  He will have to pick, from his own standpoints, somebody who‘s going to uphold Roe v. Wade because if he picks someone who joins Scalia and the others to overturn that, he would have a real political disaster on his hands.

I think these folks are better vetted these days.  He‘s going to pick himself a solid liberal who will be solid down the line, just like Souter was.  But the question is the stature gap.  I think—here‘s the thing, Chris.  He‘s sending a message to America with this appointment.  People are looking at it to say, Is he going to pick somebody like John Roberts, who whether you agree with him or not, that guy is a young Chief Justice.  Is he going up that high?  I think he‘s got to do that, but at the same time, I do think the political considerations are going to pull him very hard.

MATTHEWS:  Well, let‘s take a look at...

CARDIN:  Pat...

MATTHEWS:  Here‘s the president today talking about the kind of—here he is, talking about the kind of person, Senator, he‘s looking for to replace Justice Souter, who announced today that he‘s going to retire.

(BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES:  Now, the process of selecting someone to replace Justice Souter is among my most serious responsibilities as president, so I will seek somebody with a sharp and independent mind and a record of excellence and integrity.  I will seek someone who understands justice isn‘t about some abstract legal theory or footnote in a casebook, it is also about how our laws affect the daily realities of people‘s lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation.

(END VIDEO CLIP)

MATTHEWS:  Here‘s President Obama when he was a candidate just before election day with NBC‘s Brian Williams.  Let‘s listen.

(BEGIN VIDEO CLIP)

OBAMA:  The right to marry who you please isn‘t in the Constitution.  But I think all of us assume that if a state decided to pass a law saying, Brian, you can‘t marry the woman you love, that you‘d think that was unconstitutional.  Well, where does that come from?  I think it comes from a right to privacy that may not be listed in the Constitution but is implied by the structure of the Constitution.

(END VIDEO CLIP)

MATTHEWS:  Senator Cardin, it looks to me like he‘s getting into very tricky territory there with the Lawrence decision.  Is he saying, basically, there might be a Supreme Court Justice he‘s looking for, he picks, who could see in the Constitution some inherent right to same-sex marriage?

CARDIN:  Well, look, as we pointed out...

MATTHEWS:  That sounds like what he‘s saying.  He couldn‘t be saying anything else, if you ask me.

CARDIN:  I think he wants to find someone who has respect for legal precedent, who has an understanding of the Constitution and the importance of the Constitution in protecting our most vulnerable, particularly against the actions of government.  That‘s what he‘s looking for, and I think that‘s what a lot of us in the United States Senate are going to be questioning.

But remember, once this person is confirmed, no one knows how they‘re going to rule on individual cases.  We‘ve seen that historically.  It‘s difficult to predict.  But we want somebody who has a passion for the Constitution.

BUCHANAN:  Let me—let me disagree with the senator to this extent. 

I think the idea of looking out for the vulnerable and all the rest of it -

that is the job of elected legislators and executives who decide on laws.

CARDIN:  Not under our Constitution.

BUCHANAN:  The Supreme—all right.  Under the Supreme Court—my view of the Supreme Court Justice, he should lay down the law that‘s been passed by the Congress and signed by (INAUDIBLE)  Does it comply and comport with the Constitution of the United States, or does it violate it?  This is the real difference between liberals and conservatives, Chris.  We believe that‘s what a judge does.  It‘s a narrow role, that these changes in society, social and all the other...

MATTHEWS:  Right.

BUCHANAN:  They should be done by people we elect...

MATTHEWS:  That‘s where you guys disagree.  Senator, you disagree with that.

CARDIN:  Well, I think the Courts have to enforce the Constitution.  I think that‘s important, including right to privacy, including the rights that poor people have for counsel.  Those are issues that need to be enforced by our courts when the legislature doesn‘t act.

MATTHEWS:  OK, there‘s the issue right there.  You just heard the divide between a liberal interpretation of the Constitution, which the Justices from that side will render, and the ones the strict constructionists—by the way, Pat, where in the U.S. Constitution does it provide for an air force?

BUCHANAN:  Well, that‘s what—it provides a common defense.

MATTHEWS:  No, it provides for...

(CROSSTALK)

BUCHANAN:  You provide for the common defense an army and navy...

MATTHEWS:  Senator, last thought...

BUCHANAN:  ... the Army Air Corps.

MATTHEWS:  I don‘t see the Air Force in there.

BUCHANAN:  The Army Air Corps!

(LAUGHTER)

(CROSSTALK)

MATTHEWS:  OK, thank you, sir—thank you very much, Senator Ben Cardin of the Judiciary Committee...

CARDIN:  Thank you.

MATTHEWS:  ... and also a great senator from Maryland, and Pat Buchanan, who holds no office, but his portfolio is broad.

(LAUGHTER)

MATTHEWS:  Coming up, the political battle ahead for President Obama.  Does his pick to replace Justice Souter need to be a woman—by the way, or a Latino and maybe both because that‘s all the ink right now that‘s being spilled is in those two directions.  And will the president be able to reverse that mentality that‘s out there that somebody started the word it‘s a woman and perhaps Latino?  Can he fight that if he wants to, even, at this point?  And with everything else the Obama administration‘s dealing with, are we ready for this fight?

You‘re watching HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

OBAMA:  I view that quality of empathy, of understanding and identifying with people‘s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.  I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role.  I will seek somebody who shares my respect for constitutional values on which this nation was founded and who brings a thoughtful understanding of how to apply them in our time.

(END VIDEO CLIP)

MATTHEWS:  Welcome back to HARDBALL.  Does President Obama‘s Supreme Court pick need to be a woman?  Does it need to be an Hispanic nominee?  Kim Gandy is president of the National Organization for Women and Ruben Navarette is a syndicated columnist and a member of the editorial board for “The San Diego Union-Tribune.”

Ruben, thank you for joining us.  I want to start with Kim.  You know, identity politics and the idea that we used to have on the Court—I mean, we had that long tradition of—it sounds so odd now—the Jewish seat.  You know, we had Cardoza and then we had Brandeis—these are great judges -- and of course, Frankfurter.  And then we finally had a guy who got in trouble—what was his name?  Fortas.  He got into trouble there.  So that stopped for a while.  And then we had the black seat, if you will, Thurgood Marshall, and that sort of never really developed the way the liberals hoped it would.  And then we had, of course, Harriet—what‘s her name? --

Sandra Day O‘Connor, and we have, of course, Justice Ginsburg now.

KIM GANDY, PRESIDENT, NATIONAL ORGANIZATION FOR WOMEN:  Well, you know, Ruth Bader Ginsburg, herself, has talked about this, as did Sandra Day O‘Connor.

And O‘Connor said, it made a huge difference when Ruth Bader Ginsburg joined the court.  You can talk to any woman who was the—the only woman around the board of directors table, or the only woman in the legislative committee, and ask her how it changed when a second woman came on the committee or when a second woman joined that board of directors. 

It makes a difference.  It increases the voice.  It increases a perspective.  And it adds something to the entire body.  There‘s actually research that says that male judges tend to vote a little differently when there are women on the court with them. 

MATTHEWS:  Really? 

GANDY:  Absolutely. 

MATTHEWS:  And this is—this is evidence from lower courts, not just the Supreme Court?

GANDY:  No, it‘s only—it‘s only from lower courts, actually. 

MATTHEWS:  Yes, because there‘s not enough examples otherwise. 

Let me go to Ruben.

Do you think this should be someone from your community here?  Or this

there‘s been a lot of talk—let‘s be honest about it—that the Hispanic—or the—the Latino population of America...

RUBEN NAVARRETTE JR., EDITORIAL WRITER AND BOARD MEMBER, “THE SAN

DIEGO UNION-TRIBUNE”:  Right. 

MATTHEWS:  ... politically, hasn‘t gotten its piece of the action from this new administration...

NAVARRETTE:  That‘s right. 

MATTHEWS:  ... after all the votes they got for him. 

NAVARRETTE:  Absolutely. 

Chris—Chris, we‘re due.  And I don‘t just mean we‘re due from the Obama administration.  I mean we‘re due throughout history. 

The real reason, the most compelling reason, I think, to put a Latino on the Supreme Court is not because Latinos turned out and gave two-thirds of their vote to Barack Obama.  You will hear a lot about that in the coming days.

The real reason that you need to put a Latino on the Supreme Court, this is the fastest growing minority in the court.  This is a minority that, by 2032, will represent a quarter of the entire country.  They got passed over, so to speak, during the Clinton years.

And every other person—every other group you can think of, whether it be Irish, Italian, the Jewish group you mentioned...

MATTHEWS:  Right. 

NAVARRETTE:  ... women and African-Americans, have broken a barrier. 

It‘s the Latinos‘ turn to break their barrier.

MATTHEWS:  OK, let‘s talk simultaneous equations.  Should it be a woman and a Latino—or should it be a Latina, to be proper?  What are you saying?

NAVARRETTE:  Yes, it could be.  I mean, there are some really qualified folks out there. 

Let me take—it‘s funny.  I want to link up with Kim on this, because I—I‘m not about to differ with her opinion.  I think she‘s right on about this.  And I think that your previous guests, Pat Buchanan and Senator Cardin, were off-base, completely off-base. 

It‘s easy enough for white males to come forward and say that race and ethnicity or gender shouldn‘t matter.  But the fact is, this is the way we have always done this.  And whether it was important for Italian-Americans to get Antonin Scalia there, or important for African-Americans to get Thurgood Marshall there, why is it, all of a sudden, when it‘s Latinos‘ turn, that, oh, that‘s identity politics?

It‘s just not fair.

MATTHEWS:  OK.  Was it helpful to the African-American community to get Clarence Thomas on the court, Ruben?

NAVARRETTE:  Well, no, African-American...

(CROSSTALK)

MATTHEWS:  If identity politics is the game, if it‘s just as simple as that, than it—there‘s more to this than just identity, ethnic, or gender, isn‘t there?

NAVARRETTE:  Yes. 

Yes, but the conversation always boils down to, do you want the minority or woman, on the one hand, or the most qualified?  I have got news for you.  You can have both.  The president is an example of that.  You can be a nonwhite male and still...

MATTHEWS:  Yes. 

NAVARRETTE:  .. be extraordinary, the way the president is. 

MATTHEWS:  I don‘t like that way of talking either, but I think what people are saying is, you‘re really looking for the solution to a simultaneous equation.  You‘re saying, not just the smartest person or the best person—by the way, I‘m not sure there is such a thing as an objective statement as to who the best justice would be. 

I think personal experience, somebody who has some hard knocks.

NAVARRETTE:  Right.  Right. 

MATTHEWS:  You don‘t have to go to one of the Ivies to be one of the smartest judges in the world.

By the way, the best courtroom lawyers almost never went to the Ivies. 

GANDY:  I would say that that‘s true, as a—as a litigator myself.

MATTHEWS:  Yes. 

GANDY:  And—and you‘re right.  The eye of the beholder has a lot to do with who is the most qualified.  There‘s no doubt in my mind.

MATTHEWS:  Earl Warren was not a—was not an intellectual.  He was the former governor and politician from California, in fact, had engaged in that nefarious effort to round up Japanese-Americans who were citizens in World War II.  And, yet, he became the great—perhaps greatest liberal jurist of the century.

NAVARRETTE:  Sure.

GANDY:  You know, it really tends to be unpredictable, when you don‘t look at the ideology of the person before you appoint them.  I think...

MATTHEWS:  So, what should we do on that?

Let‘s move off gender for a second and ethnicity for a second. 

GANDY:  I think they are going to look at ideology.

MATTHEWS:  How do you—how do predict that “Whizzer” White, Kennedy‘s good buddy, would turn out to be a conservative, or that Frankfurter would turn out to be a conservative, or that Souter would turn out...

GANDY:  Yes. 

MATTHEWS:  ... as a liberal, moderate...

GANDY:  Absolutely.

MATTHEWS:  ... or Blackmun, who came out with Roe v. Wade. 

GANDY:  Roe v. Wade.

MATTHEWS:  You—well, how do you do it?  Do we water-board these people, or what we do we?

(LAUGHTER)

GANDY:  No.

MATTHEWS:  I‘m serious. 

(LAUGHTER)

GANDY:  Ask Sean Hannity about that.

MATTHEWS:  Oh, OK, Sean—no.  I think he‘s up for water-boarding himself.  And I might want to kick into that one.

But, Ruben, you want to pick somebody from your community.  Fair enough.

NAVARRETTE:  Right. 

MATTHEWS:  And I do accept the fact that, if it‘s always by—supposedly by, well, greatness, the white guys decide who it is, and it‘s a white guy.  OK.  Fair enough. 

But how do you—how do you do this?  Tell me how you would do it if you were sitting in the president—if you were Greg Craig...

NAVARRETTE:  Right. 

MATTHEWS:  ... the president‘s counsel right now...

NAVARRETTE:  Right. 

MATTHEWS:  ... and you would advise him how to put that mind—the mind game he has got to play with himself...

NAVARRETTE:  Right. 

MATTHEWS:  ... to pick somebody for the next 30 years, do you pick a younger person? 

NAVARRETTE:  Absolutely. 

And you also, I think, take full advantage of the full breadth that‘s represented in the Democratic Party right now.  We all know the Republican Party is sort of limping along on life support, but the Democratic Party has liberals, conservatives and moderates all under one Democratic tent. 

What he should do, the president, is look for somebody on the moderate side, maybe moderate to left, but not far-left, absolutely not far-left, somebody who can bring in some Republican votes, and someone who is sort of center-left. 

MATTHEWS:  Give me your candidate. 

NAVARRETTE:  I think that there‘s—you know, Judge Sotomayor in New York has been talked about a lot.  There are going to be other Latinos who are talked about a lot.

(CROSSTALK)

NAVARRETTE:  There are some female candidates that are talked about a lot. 

But I think the main point is, it should be somebody who, as was mentioned before, is of very high caliber, like Roberts or Alito, and still brings a little something, diversity to the court.  You can find those people. 

MATTHEWS:  OK. 

Do you want to second that one? 

GANDY:  I will—I will second that one.  I think that‘s a great suggestion.

(CROSSTALK)  

GANDY:  But I will also say that there are many qualified women, Hispanics who frankly were more qualified than Roberts or Alito, and more deserved to be on the court than either of them.

MATTHEWS:  I think it‘s going to be a great debate.  And it‘s going to take a couple months.  We are going to pick somebody who is going to have gone through a serious vetting.  I can tell you that‘s coming. 

(LAUGHTER)

GANDY:  Absolutely.

NAVARRETTE:  Absolutely.

MATTHEWS:  You better have a right record for this job.  And your taxes, check the taxes. 

Anyway, Kim Gandy, thanks for coming in tonight, on a Friday night. 

(CROSSTALK)

MATTHEWS:  Ruben, good luck. 

NAVARRETTE:  Thank you.  Thank you, Chris. 

MATTHEWS:  I know you are going to cause some trouble with everything you said, but thank you for coming on. 

(LAUGHTER)

NAVARRETTE:  Thanks, Chris. 

MATTHEWS:  It is tricky business.  It is about politics.  It is about values, and it is about our Constitution. 

Up next, once again, it‘s time to give out a serious HARDBALL Award tonight.  And thank God we have got somebody really good to give it to.  And there will be no dispute about how this person deserves this high award, and deserves it this week. 

I‘m getting a chill.  I am.  He deserves it—it‘s a he—he deserves it so much. 

(LAUGHTER)

MATTHEWS:  You‘re watching HARDBALL, only on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  Back to HARDBALL, and time for the HARDBALL Award. 

This week, New Yorkers suffered through a brief, but disturbing moment of deja vu.  A good number of them, reasonable people like you and me, were terrified by the sight of a jumbo jet and a fighter plane roaring low through the skyscrapers of Manhattan. 

Here it is on somebody‘s home video.  Look at that.  Obviously, people on the ground feared the worst, another 9/11 terrorist attack. 

Well, it turned out the whole thing was a deliberately planned P.R.  photo shoot set up by the Military Office at the White House.  The thing is, people in New York weren‘t warned about this crazy photo shoot. 

And that included the mayor, Michael Bloomberg. 

(BEGIN VIDEO CLIP)

QUESTION:  Just to clarify you said—excuse me—that you just found out about it when your BlackBerry went off. 

MICHAEL BLOOMBERG (I), MAYOR OF NEW YORK:  That‘s correct. 

QUESTION:  And you heard people were evacuating buildings.  And what was your reaction?

BLOOMBERG:  No, that I didn‘t hear until I talked to people, other people.  Nobody e-mailed me they were evacuating.  Saying this was a dumb idea was the nicest e-mail I got. 

QUESTION:  So, you—you sort of heard about this when the public was hearing about it?

BLOOMBERG:  That‘s what I just told you.  What part of...

(CROSSTALK)

BLOOMBERG:  ... did you not understand? 

(LAUGHTER)

BLOOMBERG:  ... not understand?

(END VIDEO CLIP)

MATTHEWS:  Well, then came the swine flu cases in New York.

Again, the mayor showed a strong hand, not closing schools, as they did in Texas, but keeping the public aware of the threat, without causing fear and panic.  He even jumped on the subway on the morning after the vice president had mistakenly told people not to ride such transportation. 

So, for demonstrating the right kind of political moxie, which we prize here at HARDBALL, especially in times when other people are being a bit crazy, I hereby grant the HARDBALL Award to New York Mayor Michael Bloomberg. 

Good for you.  I always liked that guy.

Anyway, up next:  Arlen Specter is a Democrat now, but does that make Democrats in Pennsylvania very happy?  And how do they feel about a longtime Republican running as their candidate in 2010?  I am going to ask U.S. Congressman Joe Sestak, who was considering, many people believe, running for Specter‘s—and may still be planning to run against him in the primary next year. 

And on to “The Chris Matthews Show” this Sunday: a big debate coming up among our panel of top journalists about this court fight that‘s coming, the big fight over who should be on it. 

You‘re watching HARDBALL, only on MSNBC.  

(COMMERCIAL BREAK)

MARGARET BRENNAN, CNBC CORRESPONDENT:  I‘m Margaret Brennan with your CNBC “Market Wrap.”

Stocks closing higher, after a seesaw day, but the late-day boost to stocks added 44 points on to the Dow Jones industrial average.  The S&P 500 climbed higher by nearly five.  And just two points to the Nasdaq, but it is up on the week.

Chrysler faced its first bankruptcy hearing today, and revealed that it will close five more plants by the end of next year which employ almost 5,000 people.  Chrysler says they will be offered jobs at other plants. 

Meantime, auto sales fell in April to their lowest level in almost 30 years.  Chrysler sales plunged 48 percent from a year ago.  GM sales fell 34 percent.  And Ford sales were down 32 percent.  Toyota sales also plunged 42 percent. 

And the Federal Reserve now says that it will release the results of those bank stress texts—tests next Thursday, instead of on Monday, as previously planned. 

That‘s it from CNBC, first in business worldwide—now back to Chris and HARDBALL. 

MATTHEWS:  Welcome back to HARDBALL. 

Arlen Specter defected to the Democratic Party to try and save his Senate seat, but are Pennsylvania Democrats happy with the deal they‘re getting, a five-term Republican who is now their candidate, supposedly, in 2010?

U.S. Democratic Congressman Joe Sestak, a former admiral in the U.S.  military, is considering, we‘re told, challenging Senator Specter next year. 

Admiral, U.S. Congressman, highest ranking military man ever to be in the Congress, I have got to ask you, are you thinking of running against Specter in the primary next year? 

REP. JOE SESTAK (D), PENNSYLVANIA:  You know, I was thinking of getting in.  And I haven‘t made my final decision, and I‘m not going to rule it out. 

This was a very interesting decision, Chris, and you know that.  Here is a fellow that was running against somebody, said, it‘s too tough, so I‘m going to try an easier race.

But, Chris, what is he running for?  He derailed health care back in the ‘90s.  But maybe he has got a new idea.  Now, what I have got to see, all right, Arlen, do you have the leadership that failed on the Republican Party to shape it?  How are you, if you have told us you‘re not going to change your vote, you‘re going to shape us? 

If he has got the right answers, he can be the man.  I‘m not opposed to that. 

But, right now, boy, I got to tell you, I just don‘t know if he‘s the man to take—in the middle of a crisis, to take us forward, where I‘m worried it‘s more about political survivability. 

MATTHEWS:  Let‘s—let‘s...

SESTAK:  Too many people have lost their jobs to worry about his. 

MATTHEWS:  Let‘s skip the talk about issues for a minute, because we have no idea which way Arlen Specter is going to go on any issue.  You never can predict him. 

So, let‘s—you don‘t, because he will do what he thinks works politically.  But let me ask you this.

(LAUGHTER)

MATTHEWS:  Well, you‘re laughing because it‘s so true. 

Let me ask you...

SESTAK:  But it shouldn‘t be true, Chris.  That isn‘t the point of politics.

MATTHEWS:  But it is true.

Well, let me ask you about democracy.  You went up there and busted your hump.  You raised the money you needed to do to get—to win a seat away from an incumbent Republican.  You‘re a United States congressperson from Pennsylvania. 

You served your country for all these years.  I sound like Howard Cosell here.  You have done everything right.  Now you‘re being told by the president of the United States, there‘s not even going to be a primary next year, because he has dictated it‘s going to be Arlen Specter, the longtime Republican, is going to be the nominee of your party. 

Is that democratic? 

SESTAK:  Well...

MATTHEWS:  Is that democratic, yes or no? 

(LAUGHTER)

SESTAK:  Look, I don‘t think politics is a sport.  And I don‘t think that President Clinton—Obama, who I have such respect for, really can dictate what happens. 

And I have got to go back to my military background.  You remember, George Washington gave the very first medal, and he said, it‘s only going to go an enlisted guy?  Because he wanted the way to the top to be perceived as open to everyone.

There aren‘t any kings.  There aren‘t any king-makers.  There aren‘t any kings.  And there‘s no king-makers in this democratic process.  So, I‘m interested of what the president and others, the political establishment in Washington, has to say.

But, at the end of the day, it‘s about the kid—it‘s the family sitting in Llanerch Diner, as you and I are speaking, Chris, in Upper Darby that‘s going to make that decision.  And I‘m one of them.  I‘m a very independent individual. 

And, Chris, you remember—or you might have heard—that, when I got out of the Navy three years ago, somebody said I had to tell the DCCC about—that I intended to get in the race.  I didn‘t even know what DCCC, Democratic Congressional Campaign Committee, meant. 

MATTHEWS:  Right. 

SESTAK:  And when I called them, they told me not to get in. 

I got it.  I appreciate it, and I will listen.  But, at the end of the day, Chris, it is about issues.  I understand the political calculus, but I didn‘t get in this for political calculus.  It‘s what‘s right. 

In the middle of this crisis, can Arlen, who found it too hard, really be the right standard-bearer as we make such critical decisions on policy of the future?

And, so, Chris, I have got to kindly disagree.  I understand everybody treats politics as a sport, but that‘s not why I got in it.  It‘s too serious. 

MATTHEWS:  I had a wonderful uncle named Uncle Bill.  He‘s a plumber. 

Every time an issue came along—he was somewhat cynical about politics.  He would say it‘s like everything else.  You know it‘s like everything else. 

It seems to me the cynics out there about politics are going to say this again.  They‘re going to say, yes, a bunch of big shots got together.  They carved this up and they protected the incumbent.  The people didn‘t get to vote.  They gave the seat to Arlen for another six years.

I just wonder what you think the public reaction is in Delaware County, where you‘re from, in Montgomery County, around the state?  What are people saying about this deal, this Faustian deal that protects an incumbent from the electorate? 

SESTAK:  We have got a lot of calls in.  And even last night at the local Democratic dinner that was held, and I wasn‘t there, they were pretty concerned about it. 

It‘s not that Arlen is the right guy or not the right guy.  There is such a cloud of cynicism over Washington, D.C. that if this is even perceived to be another shovel full, and many people look at it that way, that ideal of transforming the establishment down there—and then, no, no we didn‘t do it, we put another shovel full, was probably the greatest harm that could be done. 

I have to believe that this is a decision that was made probably understandably by the establishment.  And I don‘t have that many ties into it.  So maybe this expediency is just something I don‘t understand, but to me it‘s what they‘re running for. 

MATTHEWS:  Congressman, let‘s work on it.  Let‘s assume the worst kind of political cynicism, and you assume somebody in the White House is working this out?  OK.  What did they do it for?  If Arlen Specter‘s polls are right—he‘s pretty convinced they are.  He was going to get killed in the Republican primary next April.  He wasn‘t going to be the nominee.  He was going to be out of business career-wise.

They would be running a guy on the far right, Pat Toomey, who would not win the general election.  The Democrats would walk into that seat if you ran, or Alison Schwartz ran, or Pat Murphy ran, or Joe Torcelli, or any of the other potential candidates who would run.  They were going to own that seat. 

You‘re going to have two senators from Pennsylvania.  Now you get a senator from Pennsylvania and Arlen Specter again.  Why would anybody cut a deal like that that the gave the party nothing?  What does the president get out of this? 

SESTAK:  I don‘t know.  And that‘s the question Pennsylvanians have to ask.  We can‘t be told who our candidate is.  I‘m perplexed, and I think—

MATTHEWS:  Do you think they got a deal?  I‘m just guessing here.  Do you think they got a deal on health care, that Arlen said, OK—he did that thing he always does, that difficult thing he does, playing hard to get, but he did tell Rahm Emanuel or somebody at the White House you can count on me on health care.  It‘s an issue important to me.  I will be your 60th vote to break the filibuster. 

Do you think they got that from him?  Because they gave him everything else.  They gave him seniority, money, the backing of the party, and the president campaigning for him.  Did they get anything for this?

SESTAK:  I can‘t see how health care could have been it because, unfortunately, and I say unfortunately, in the budget resolution reconciliation is in there, where health care reform can be passed on a single party vote, 51, no filibuster.  No cloture is required.

What have they gotten except a potential of cynicism?  I don‘t

understand it.  That‘s why I‘ve got to listen.  But at the end of the day -

-

MATTHEWS:  We want to make news, Congressman.  You are a man of stature in Pennsylvania.  I‘m sure you poll—

SESTAK:  Well, I don‘t want to overdo that. 

MATTHEWS:  Are you going to make a move?  When are you going to make it?  When will you come back on this show and announce you‘re going to run for the United States Senate nomination in Pennsylvania on the Democratic ticket? 

SESTAK:  Chris, I think it can‘t be too far down the pipe.  I would imagine—I would have liked to have made this decision—you have to understand, I love my job in the seventh district.  But I think some time within the quarter or so, you have to make this decision, or certainly thereafter.  It‘s going to be a fight, and I think you should prepare well.  That‘s what you learn in the military. 

All that said, I think I need to listen for a bit and see if—I‘ll go back to it.  If Arlen has changed his stripes again.  If he has, how much can we believe he‘ll be consistent to carry us forward?  But I‘ve got my grave doubts. 

MATTHEWS:  OK.  Thank you very much for coming on HARDBALL the week you‘re making news, Congressman Joe Sestak, who may well run for the Senate nomination next year in Pennsylvania. 

Up next, could President Obama‘s pick to replace retiring Supreme Court Justice David Souter actually re-energize the Republicans after months of flailing around?  Could this be the hot issue that gets them back?  This is HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

OBAMA:  I‘m sorry to Gibbs for screwing this thing up.  You know, there‘s a job to do.  Please, everybody have a seat.  If there‘s a job to do, you got to do it yourself. 

ROBERT GIBBS, WHITE HOUSE PRESS SECRETARY:  See you guys later.  Have a good weekend. 

OBAMA:  This is kind of cool, Robert. 

GIBBS:  It‘s way cooler than it seems. 

OBAMA:  Yes.  Absolutely. 

(END VIDEO CLIP)

MATTHEWS:  Well, that‘s our new president, with bumping rights for his press secretary Robert Gibbs, breaking up a briefing today.  Anyway, during this discussion of Judge Souter, discussing his retirement from the Supreme Court.  That is the president with another huge big news day.  We‘re back with the politics fix.  We call them in this business the news gods just keep giving us news. 

David Corn joins us.  He‘s Washington bureau chief of “Mother Jones.” 

And Voto Latino‘s Maria Teresa Petersen.

First of all, I‘ve got to go to Maria.  We had on Kim Gandy of NOW, the National Organization for Woman.  We had Reuben Navarette from the San Diego union speaking to us, both saying we need to have—I think they agreed it should be a woman and it should be a Latina.  Is that where we are at now, that these Supreme Court nominations are going to open up something of a bit of ethnic warfare, if you will, over the spoils of victory here? 

MARIA TERESA PETERSEN, VOTO LATINO:  First of all, Christmas came early right now for the Obama administration.  First Spector and now a vacancy on the Supreme Court.  That said, I think what Obama needs to identify is the most qualified person, because he has so much, such a rich domestic agenda that he needs to pass. 

He doesn‘t want a cultural war, Chris.  And that has the possibility of doing so. 

MATTHEWS:  You know, being a student of the politics of your community

do you think there is a heavy weight out there in the legal community who has your background that could be a pick that would just stop all the noise? 

PETERSEN:  I think when the supreme court justice in New York is Sonia Sotomayor and she‘s fantastic. 

MATTHEWS:  She‘s appellate.  She‘s circuit, right?  Pretty high up. 

PETERSEN:  Right. 

MATTHEWS:  And it would be a natural promotion for her to go to the Supreme Court? 

PETERSEN:  It would.  Now I think what happens is the Republicans need to take a step back and make sure they don‘t go after her, because they already have a he difficult time trying to fill the Latina vote. 

MATTHEWS:  David Corn, that goes to the question of, you‘ve got to be careful about some of the—you‘ve got to be careful who you attack, because people have identity and sometimes when you attack people, you attack everybody with that identity.  Is this going to be smart politics for the president to pick someone from the Latina community, a woman? 

DAVID CORN, “MOTHER JONES”:  I think that whatever he does, it will be politicized.  There‘s some on the opposition, Republicans and conservatives, I think, who won‘t go for a fight if they think the nominee is qualified.  But others, I think, in the absence of any real Republican leaders these days—you know, on this show, we talked long and hard about who are the Republicans leaders.  They are still looking for some issue. 

And they can take any one of these judges, Judge Sotomayor, anybody else, and turn them into a boogie man or boogie woman for their base, to gin up fund raising support and electoral support.  So I think we can talk about qualifications.  And virtually everyone we‘re talking about, put aside their gender or their ethnic background, they are all going to be qualified. 

Nevertheless, there will be an effort on part of the right, not on the whole right, to—

MATTHEWS:  Let me start a fight now.  Do you think, Maria, that people of the same gender have implicit in the United States Constitution the right to marry?  Is it in there somewhere like the right to privacy with the regard to reproductive rights?  Is it one of those rights like not to be separated by race when you go to public school? 

PETERSEN:  I think it‘s a flash point.  I think that—

MATTHEWS:  What do you think, though?  Do you think it‘s a right? 

PETERSEN:  I do think it‘s a right.  I think that‘s a decision that should be done between your partner.  And it should be private.  And for the government to legislate that—

MATTHEWS:  I think the president may well be on the edge of thinking

that.  David, I have a quote from the president a while ago, where he is

assaying, basically, when they used to have rules about who you can marry -

I think he‘s very familiar that his parents weren‘t allowed to marry under the previous laws of many states.  He doesn‘t like that kind of intervention.  Do you think he might be open to picking somebody who might say same-sex is constitutional, in fact, denying it is unconstitutional? 

CORN:  I don‘t think that will be a deal breaker for him.  I don‘t think he would lead with that, because his position is that he doesn‘t support gay marriage. 

MATTHEWS:  OK.  He can‘t say it legally.  He can‘t say it politically. 

But if the court ruled that way, you don‘t think he‘d—

CORN:  My guess—I don‘t like to mind read, particularly when it comes to the president—is that he wouldn‘t be unhappy with that type of court decision.  He hasn‘t denounced the court decisions we‘ve had throughout the country on this front. 

MATTHEWS:  OK.  We have worked too hard this week.  We‘re going to come back and talk about Governor Palin, because she‘s started again with this photo op.  It‘s really funny.  I‘m not knocking her.  I‘d love to have her on the show.  I think she‘s delightful and she is definitely representative of a big part of Republican party thinking.  But wait until you come back.  We‘re going to come back with Maria Teresa and David.  We‘re Going to watch her with this dead bear.  Well, wait until you see it.  She‘s talking to some tough looking bikers, too.  It‘s fun.  Back with HARDBALL.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

GOV. SARAH PALIN ®, ALASKA:  Nice to see you.  Are you—

Snow machine, yes.

UNIDENTIFIED MALE:  What kind of snow mobile to you drive?

PALIN:  We‘ve got an Arctic Cat.  We have a couple of different kinds, race machines. 

UNIDENTIFIED MALE:  Do you really? 

PALIN:  I inherit whatever Todd rejects from the year prior. 

UNIDENTIFIED MALE:  Your husband is a real—

(END VIDEO CLIP)

MATTHEWS:  That‘s Alaska Governor Sarah Palin on last night‘s episode of TLC‘s “American Chopper” doing an interview on a sofa draped by a dead grizzly bear.  You saw the friendly face of that bear right behind her.

We‘re back with David Corn and Maria Teresa Petersen.  I don‘t want to be the East Coast elitist, because one thing I‘m not is an elitist.  I can tell you, I‘m something else.  I may drive some people crazy, but I‘m not an elitist.  What do you think—I want to give Corn a chance at this.

David, she‘s appealing here very clearly to the rough and ready in the Republican party.  Look at these guys.  What is it?  Is she—I don‘t know how to do this without getting in trouble.  But she‘s definitely appealing to a certain brand of politics which is not East Coast girls are hip kind of think.  What do you think? 

CORN:  Motorcycle mamas are where it‘s at?  You have that dead bear there.  I‘m thinking it should be a dead elephant, given what is happening with her party.  But she‘s certainly trying to expand her appeal.  If you want to call it sex appeal or red neck appeal or motor bike appeal, whatever it is, in a way that‘s probably better for her than going on the “Jerry Springer Show” to talk about her family.  She‘s changing the channel, literally.  TLC and choppers instead of the gossip channels, which is where she‘s been most recently.

MATTHEWS:  She‘s paying tribute, by the way, in this interview, to the patriotism of bikers.  It‘s so interesting.  They are patriotic.  They have the flag and I know instinctively these guys are.  A lot of them are Vietnam vets.  The pony tails and all—all these guys are real and they have a hell of a good time. 

But she‘s clearly working a certain part of the room here. 

PETERSEN:  And I think that—as I said, I think that‘s also the Wal-Mart Joe‘s.  They‘re saying that‘s where the sub club guys are. 

MATTHEWS:  So is she going to get that end of the Republican party and let Mitt Romney, an elite, grab the country club crowd? 

PETERSEN:  I think she needs to cast her net a lot broader. 

(CROSS TALK)

MATTHEWS:  I think she‘s got it.  I‘m sorry.  I think she‘s a genuine article politically.  I hope she‘s watching.  Left, right or center, I think if she would just get the act down a little more in depth, she could be a real powerhouse running for the nomination.  These other guys are stiffs.  Any way, thank you. 

By the way, we don‘t even like a lot of those other people.  I‘m sorry.  We‘ll be back on Monday at 5:00 and 7:00 Eastern for more HARDBALL.  David and Maria, thank you.  Right now, it‘s time for “THE ED SHOW” with Ed Schultz. 

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

END   

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