updated 5/8/2009 10:16:16 AM ET 2009-05-08T14:16:16

Guest: Sen. Orrin Hatch, Sen. Sheldon Whitehouse, Susan Molinari, Kevin Madden, E. Steven Collins, Roger Simon, Eugene Robinson

CHRIS MATTHEWS, HOST:  Republican rhubarb.

Let‘s play HARDBALL.

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

Judges who care?  Barack Obama doesn‘t want some pencil-neck on the Supreme Court.  He wants a red-blooded person who understands how the law affects people.  He wants empathy, darn it!  He wants a Justice who can understand and appreciate the struggles and challenges of the little guy.

Sounds good.  The problem is, some on the right fear that what he‘s really talking about is adding to the Supreme Court some judge who wants to help the little guy by making up the law.  We‘ve got two senators on the Judiciary Committee with us tonight, Republican Orrin Hatch of Utah and Democrat Sheldon Whitehouse to say what kind of nominee each of them would like to see president Obama pick to replace David Souter.

Plus, the emerging battle between the Republican insiders—call them the shirts—and the wilder outsiders—they‘re the skins in this half-court game.  Mitt Romney—he‘s one of the shirts—was asked why only two Republicans, Rush Limbaugh and Sarah Palin—they‘re most definitely playing for the skins—how they made into “Time” magazine‘s list of the 100 most influential people in the world.  Was he mocking Palin or just trying to avoid the question?  Let‘s listen.

(BEGIN VIDEO CLIP)

MITT ROMNEY (R-MA), FMR PRESIDENTIAL CANDIDATE:  But was that the issue on the most beautiful people or the most influential people?  I‘m not sure.

(LAUGHTER)

ROMNEY:  If it‘s the most beautiful, I understand.

(END VIDEO CLIP)

MATTHEWS:  Well, whatever Romney meant, the Republican Party‘s waning influence is why Romney and others are trying to rebrand the GOP and are desperate to get the media focus off of Limbaugh and Palin.  We‘ll talk to two Republicans about how or whether that‘s a good idea for the Republicans.

And can you imagine what Democrats in Pennsylvania were thinking when party switcher Arlen Specter came up with this denial yesterday on “MEET THE PRESS”?  Let‘s listen.

(BEGIN VIDEO CLIP)

SEN. ARLEN SPECTER (D), PENNSYLVANIA:  I did not say I would be a loyal Democrat.

(END VIDEO CLIP)

MATTHEWS:  I am not a loyal Democrat.  Then who should loyal Democrats vote for?  And what‘s up with this decision to clear the field for Arlen?  Was it smart for the party establishment to award a lifelong Senate seat to someone who swears not to be loyal?  Is it just possible that this faustian deal could fall by the sword of the very popular governor and homeland defender Tom Ridge?

And why is John Edwards getting investigated?  A federal prosecutor is following the money, and that‘s campaign money, to see if it was used for personal purposes, something to do with his relationship with a former campaign consultant.  That and more in the “Politics Fix” tonight.

And finally, I‘ll pay tribute tonight to a very good man, Jack Kemp, who passed away over the weekend.  More than anyone other than Ronald Reagan, Jack Kemp helped steer Republicans to become the party of lower taxes, and he tried to make the party more sympathetic to minorities and the poor.

We begin with two members of the U.S. Senate Judiciary Committee, Orrin Hatch of Utah, a Republican, and Sheldon Whitehouse of Rhode Island, a Democrat.

Gentlemen—Senator Hatch, thank you very much for joining us.  Sir, why can‘t the Supreme Court include people we‘ve heard of before?  Why do you have to go to the corners, the dark corners of the legal community to pick strangers?  For example, why are we not hearing the names of politicians, like William Howard Taft, Earl Warren, presidential candidates, former vice presidential candidates, governors, senators?  Why are you not looking at a longer list of public figures?

SEN. ORRIN HATCH (D-UT), JUDICIARY COMMITTEE:  Well, I think in a very real sense, a lot of Democrats were insisting during the Bush years that he pick appellate court judges or judges with experience in judging.  And we heard that drumbeat over and over and over.  Well, some of the greatest Justices that ever sat on the Court never walked into a courtroom, never tried a case, never took an appeal.  And yet they became great judges because of their intellect, their ability in the law, and so forth.

So I don‘t think the president necessarily has to pick somebody who‘s served on the bench.  I think that‘s a very good, positive thing to do.  On the other hand, I think that you can find some very, very fine people who haven‘t served in the judiciary themselves.

MATTHEWS:  What do you make, Senator Hatch—I want to stay with you for a minute—of the word “empathy”?  Apparently, that‘s become something of a lightning rod.  The president said something about picking somebody with empathy.  That could mean someone who knows what the world‘s all about.  It could mean something else.  What do you take it to mean?

HATCH:  Well, the president called me today, and he made it very clear that, you know, he wants people who are not out of the mainstream.  He wants people who are not radical, who are not extreme.  And he said he‘s going to make a pragmatic choice and he feels he‘ll pick somebody who‘s pragmatic.

But if you start talking about empathy—do you allow your empathy to change the law so that it meets with your empathetic feelings, or does that mean that you at least have some sort of a feeling about what really moves the world and makes the world go within the rule of law, the framework of the rule of law?  If it‘s that, fine.

But the president also has said that he‘s going to pick somebody who might use their own political preferences, feelings, or other approaches.  And you know, these are kind of the words that bother those of us who think that the judiciary should be limited to what it should do.  There are limitations on what a judge can do.  They‘re appointed for life.  They are not elected to go and make laws.  And when they start making laws, rather than interpreting laws, that‘s when I think they have a rough time with me.

MATTHEWS:  Let‘s take a look at what the president said, and then we‘ll go to Senator Whitehouse.  Here‘s President Obama on Friday using that word, “empathy.”

(BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES:  I view that quality of empathy, of understanding and identifying what 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.

(END VIDEO CLIP)

MATTHEWS:  And here‘s Senator Leahy, the chairman of the committee, a Democrat from Vermont, saying something like that.  Let‘s listen to that.

(BEGIN VIDEO CLIP)

SEN. PATRICK LEAHY (D-VT), JUDICIARY COMMITTEE CHAIRMAN:  I want the

president to pick somebody for all the American people.  In the past few

years, the Court—many members of the Court have seemed to be more and

more isolated from real Americans, real people.  I‘d like to see something

I‘d like to see an appointment of somebody who has real life experiences not just within a judicial monastery, but somebody who can reflect the feelings of real Americans.

(END VIDEO CLIP)

MATTHEWS:  Well, let‘s go to Senator Whitehouse.  You know, I look back on those big Court decisions of our lifetime, like the Brown case back in ‘54.  You talk about empathy—apparently, as part of their judicial discovery in trying to figure out how to rule on “separate but equal,” they looked at what impact separate schools did for young black kids.  And what it did was convince them that white dolls are better than black dolls.  And it was that empathetic look at what separate education was doing to these kids and giving them inferiority complexes that partially led them to the ruling in the famous Brown versus Board of Education case.

Is it wrong to look at empathy?  Should you look at the law or the history of the law only in the Constitution, or should you look at its impact?

SEN. SHELDON WHITEHOUSE (R-RI), JUDICIARY COMMITTEE:  I think it‘s important to look at empathy.  I think the president is onto something very important.  And I have great respect for Senator Hatch.  He‘s a very distinguished former chairman of the Judiciary Committee.  But I think it‘s premature at this point to leap to the conclusion that empathy requires overturning the rule of law.  The rule of law is a vital prerequisite for this judge, but within that rule of law, there is abundant room for human characteristics like empathy to help define the way decisions are made and the way decisions are framed.

MATTHEWS:  Are you concerned, Senator Hatch, that some Justice could come along and in a big broad decision, lead the Court to believe that implicit in our founding documents, including the right to the pursuit of happiness in the Declaration, that you should have same-sex marriage, that that would be part of an empathetic decision, feeling for those same-sex couples and their predicament?

HATCH:  I have no problem with judges having a heart, wanting to do what‘s right and wanting to live within the legal constraints that do exist.  When they start substituting their own personal policy preferences for what the law really is, then that‘s the misuse of empathy and it means that a person like that shouldn‘t be sitting on the bench.

One of the statements that President Obama did say is that he said he‘s going to pick judges who, you know, are going to have political preferences, are going to rule on feelings, and et cetera, et cetera.  Now, that worries you because if that means that their feelings and their political choices and  their political preferences take over from the rule of law, then I think that makes for a very poor judge.

Now, I think Sheldon would probably agree with that.  And I‘m hopeful that the president will do what he said today to me personally.  He said, Look, don‘t worry.  I‘m not going to appoint a radical or an extreme person.  I‘m going to appoint somebody in the mainstream, and I‘m going to be very pragmatic about what I do.  And if he does that, I feel like he‘s going to be going a long way towards having a slam dunk, to use a phrase that others have used.

MATTHEWS:  Yes.  Well, you know, I was just thinking, Senators, that a lot of us believe in the founding documents implicitly.  We really do love them and we love the words.  We love the way they put together our Declaration and our Constitution and the Federalist Papers and everything.  We believe they were inspired in so many ways, in a secular sense or in a religious sense, by some standards.

And I just wonder, how do you square that with these broad Court decisions in our lifetime?  The Brown case, they had to find some inherent problem with “separate but equal.”  In the prayer case, they had to find something about the establishment clause in just reading the King James Bible in class.  In Roe, they had to find some inherent notion of privacy that wasn‘t in the document.

Senator Whitehouse, you first.  How do you square the need to preserve and protect our Constitution with this very broad ability that these courts have done in these landmark cases to find constitutional law where it‘s not written?

WHITEHOUSE:  As you said...

MATTHEWS:  How do they do it?

WHITEHOUSE:  As you said, Chris, the great ideas of the Constitution and the great phrases of the Constitution are eternal, and the judges have to follow them.  But they play across a new landscape that new centuries and new generations have spread before them, and it‘s important that a judge be attuned to the new features in the new landscape as time moves forward.  And that‘s what some of those great decisions adapted to.

We can‘t have a Constitution in a freezer that doesn‘t apply to the new situations of our country, and I think it‘s very important that we see that and allow that to take place.  It‘s been part of our constitutional history.  Frankly, it‘s been in many respects, some of the proudest parts of our constitutional history.

MATTHEWS:  Well, Senator Hatch, let‘s get down to the bone here.  The commerce clause was used in judicial review of the Civil Rights Act on public accommodations, and the Court said it was within the purview of the federal government to regulate interstate commerce and to outlaw discrimination in restaurants and hotels.  And that was a decision that the public went along with, although I would say it‘s a broad interpretation.

What happens if a Court comes along and says due process includes the right to a same-sex marriage?

HATCH:  well, let me just choose just one case out of many—two, Plessey versus Ferguson.  That had to be overruled.  That was a case of judicial activism.

But let‘s take Roe versus Wade, the abortion case.  Look, that case has probably caused more problems.  Even the top liberal authorities on this have said that there was no justification for the Court deciding that case that way in any way, shape or form.  And that case has probably caused more lack of bipartisanship than any other case that I can think of.  Where, if it had been left to the elected representatives of the people, yes, there would have been fights all over the country, but at least the people who were elected to make the changes would make them, and not unelected judges.

And that‘s what I‘m talking about.  When they go way beyond what the Constitution says and conjure out of thin air laws that really should be left up to the elected representatives of the people, that‘s when I think judges get in trouble.  And the president assured me today that he‘s not going to pick somebody who will do that.

MATTHEWS:  But in the past, we‘ve had Republican appointees who have found that a woman has a right to have an abortion. In many circumstances, Senator Whitehouse, judges have found that right in the document.  Somehow, they have found it there.

WHITEHOUSE:  And I would say that other cases that we‘re very proud of, like Brown versus Board of Education, have also caused problems, but they‘ve been good problems.  They‘ve been the problems that America should face.  They‘ve moved the ball forward, so that “separate but equal” went into the trashbin of history and we began to have a culture in which black or white, you had the same shot at an education.

Did it create problems?  Sure, it did.  It created problems throughout the South.  It created problems in Boston.  It created all sorts of problems.  But you don‘t flinch from those problems when the clear import of the Constitution and its tendency toward justice are at stake.

HATCH:  I don‘t know anybody who would disagree with Brown versus Board of Education.  That‘s a case that I think fits well within the Constitution, even though it was a case of first impression.  But when you start making cases like Roe versus Wade that really decide these great sociological and very, very important principles by unelected judges who really take one side or the other, that‘s a bad mistake.

When it comes to gay marriage—look, I take the position that marriage is a sacred institution.  It ought to be between a man and woman.  But that doesn‘t mean we shouldn‘t—that we should be discriminatory against gay people at all.  But you know, I think the Court has to decide some of these issues, but they ought to decide them—it would be far better to decide really tough issues by the elected representatives of the people, than by the courts themselves who are not—they‘re not appointed to make laws.  They‘re appointed to interpret laws that are made by those who have to stand for reelection.

MATTHEWS:  I think we‘re right at the heart of the issue, gentlemen.  Thank you for taking us there, to the cutting-edge question as to the role of the Court and how broad should be their interpretations of the written Constitution.  Thank you, Senator Orrin Hatch, and thank you very much, Senator Sheldon Whitehouse.

Coming up: Mitt Romney talks down on Sarah Palin.  Well, you listen to what he says when he‘s asked about what‘s she doing on the list of 100 most influential people of “Time” magazine and suggesting maybe she ought to be on the list of the most beautiful people.  Well, you interpret it.  I think that‘s what he meant.  Anyway, we‘ll see.

As the two sides of the Republican Party point fingers at each other, how long is the party going to be kicking around before it‘s got it figured out?  We‘re going to ask two Republican insiders about the long way back to power.

You‘re watching HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL.  Some boldfaced names in the Republican Party were on a self-described “listening tour” this weekend—it sounds like Hillary Clinton—Jeb Bush, Mitt Romney, Eric Cantor—as part of an effort to get the Republican Party back on track.  But comments like this one from Mitt Romney don‘t exactly enhance party love.  He was asked about the two Republicans who did make “Time‘s” 100 most influential list, Sarah Palin and Rush Limbaugh.  Here‘s his reaction.

(BEGIN VIDEO CLIP)

ROMNEY:  Gee, I‘d like to have a lot more influential Republicans.  I think there are a lot more influential Republicans than that would suggest, but—was that the issue on the most beautiful people or the most influential people?

(LAUGHTER)

ROMNEY:  I‘m not sure.  If it‘s the most beautiful, I understand. 

We‘re not real cute.

(END VIDEO CLIP)

MATTHEWS:  Wow.  Susan Molinari‘s a former GOP congresswoman from New York and Kevin Madden was a spokesman for Romney during the campaign and still a Romney backer.

Let me ask you this.  Is this little bit of sniping between the elite of the party, Mitt Romney, and the cowgirls, the cowboys out there, like Palin and Rush Limbaugh—is this a class issue here that‘s going on here, shirts and skins?

SUSAN MOLINARI (R-NY), FORMER CONGRESSWOMAN:  I don‘t know.  I don‘t think it is.  Do you?

MATTHEWS:  What are you looking to him for?

(LAUGHTER)

MATTHEWS:  Come on, Susan!

(LAUGHTER)

MATTHEWS:  Come on.  You‘re trying to get together on this thing.

MOLINARI:  No, I don‘t think it is.  Look, I do think—what I think has to happen is that we get them all together, and I think that is an important point.  And I think—you know, look, Sarah Palin and Rush Limbaugh are influential to our party, and so is Mitt Romney and so is Rudy Giuliani.

I mean, there is—we have to go back to the roots and continue to expand our base and talk about all the people that we have and all the good news, quite frankly, that I think is going to start coming on the horizon for the Republicans.  So—I mean, I know little things like this like to get everybody saying, Oh, there they go, the Republicans, sniping again.  I think we‘ve got a lot good coming our way.  And I think what Eric Cantor and Ed Gillespie and others are doing for a party is going to take us a long way, as well as some...

MATTHEWS:  OK, who‘s...

(CROSSTALK)

MATTHEWS:  ... Brooks Brothers or Wal-Mart?

(LAUGHTER)

MOLINARI:  Oh.

(CROSSTALK)

MATTHEWS:  Come on, Brooks Brothers.

KEVIN MADDEN, REPUBLICAN STRATEGIST:  No.

(CROSSTALK)

MATTHEWS:  I mean, it is the Brooks Brothers party.  It‘s Mitt Romney trying to act like he‘s not cute.  And he‘s obviously cute. 

(LAUGHTER)

MATTHEWS:  Putting down Sarah Palin for being a good-looking person, I mean, it was a weird kind of reaction, wasn‘t it?

What did he mean there; maybe she should be on the most beautiful list...

MADDEN:  No.

MATTHEWS:  ... but not on the most influential list? 

What did he mean by that?

MADDEN:  I don‘t think that was a putdown. 

MATTHEWS:  What did he mean?

MADDEN:  I think it was—I think it was self-deprecating, that if it was—there should be more people on it, except that Republicans, you know, we‘re not known as the beautiful...

(CROSSTALK)

MATTHEWS:  Why was he saying maybe she‘s on the beautiful list?  Why does he says she‘s on the beautiful list? 

MADDEN:  I don‘t think it had anything to do with that.  I think he was talking about how, if it‘s a list that has only that few Republicans, it must be because we‘re not all pretty.  He was talking about himself.  He was being self-deprecating. 

MATTHEWS:  Oh.  Oh, really?

(CROSSTALK)

(LAUGHTER)

MATTHEWS:  Can you explain Joe Biden‘s comment on the subways, now that you‘re at it? 

(LAUGHTER)

MATTHEWS:  You‘re pretty good at this. 

(LAUGHTER)

MATTHEWS:  You are good at this. 

No, I‘m just teasing. 

MADDEN:  Look, I think...

MATTHEWS:  Let‘s stay on the subject.

MADDEN:  Yes. 

MATTHEWS:  Only got a couple minutes.

And you first, Kevin.

MADDEN:  Well...

MATTHEWS:  You‘re smart.  You went through a campaign where—Mitt Romney has definitely got a chance to win the nomination next time.  He‘s coming back.

And, by the way, in your party, you wait your turn, you get the job.  Dole finally got it.  McCain finally got it.  Nixon finally got it.  You‘re a wait-your-turn party.  So, maybe it is your turn.

But how do you deal with the more wilder crowd, the more visceral, the gun people, the snowmobile people, the Sarah Palins and the Limbaugh people?  How do you incorporate them into an establishment political party, like your party? 

MADDEN:  Well, I think, at first, what we have to do is, we have to be

again, we have to be the party of ideas. 

I think you go through the kind of data of discovery of the 2008 election.  And what we found is that, many voters didn‘t look to the Republican Party for reform.  They didn‘t look to us for ideas.  They didn‘t look to us—or at least we didn‘t align up with them on many of the big issues. 

So, I think that‘s fundamentally what we have to do.  I mean, I think, if you break it down to just these sectors, well, is it the right, is it the left, is it the middle, I think it has more about a party that is built on big ideas. 

One of the reasons that we won in 2004 was because, if you look, historically, at some of the data from past presidential elections, there was a big gap on where Republicans were vs. Democrats on issues like health care, issues like education, issues like energy.  And we had closed that gap because we were not afraid to talk about those issues.  And we were solution-oriented.  We put together ideas and an agenda that spoke to that wider swathe of the electorate that wasn‘t just the radical right, as you guys like to call it in the media, but, instead, it was about...

MATTHEWS:  No, but I know...

(CROSSTALK)

MADDEN:  It was about independents and Democrats.

(CROSSTALK)

MATTHEWS:  I know how you won—you won in Ohio, which was the key state.  You won by scaring the hell out of the black community over same-sex...

(CROSSTALK)

MADDEN:  Ohio...

(CROSSTALK)

MATTHEWS:  That was brilliant run, but don‘t tell me it was about ideas. 

MOLINARI:  Well, look, but I also...

(CROSSTALK)

MATTHEWS:  It was a scare tactic.  It was a brilliant wedge campaign.

(CROSSTALK)

MADDEN:  I disagree with you.  I worked in Ohio.  It was not scare...

(CROSSTALK)

MATTHEWS:  You worked with Don King and Karl Rove? 

MADDEN:  We—we talked about...

MATTHEWS:  You weren‘t working the Cuyahoga County blacks?

MADDEN:  We—no, no, no, we made—we made a...

MATTHEWS:  Right. 

MADDEN:  We made a direct appeal to Ohio voters on whether or not their—their economy was going to grow with a George Bush approach, which was lower taxes and more open trade, vs. John Kerry, who wanted to wall off the Ohio economy.  That‘s how we won Ohio.

MATTHEWS:  OK, let me tell you what you don‘t know.  Don King, the fight promoter, was working with Karl Rove to work with the black clergy up in Cuyahoga County.  And you managed to get the black vote for the Republican candidate up to 17 points, which was the high number you ever...

MADDEN:  I worked...

MATTHEWS:  ... highest number you ever got. 

MOLINARI:  OK, guys.

(CROSSTALK)

(LAUGHTER)

MADDEN:  I worked hard on that campaign.  It was about the economy.

MATTHEWS:  You put that on the ballot.

(CROSSTALK)

MOLINARI:  Let me just say that, look, I think it is about ideas.  I think the Republican Party is going out there.  And now we have the Democrats that are going to be in control, you know, probably of the Senate, of the—in terms of the filibuster...

MATTHEWS:  Right. 

MOLINARI:  ... in the House, the White House. 

The comparison and contrast is about to happen right now.  And we have good people and good leaders in the field, whether you talk about Christie running for governor in New Jersey, McDonnell in Virginia, you know, if Ridge enters this race in...

MATTHEWS:  Yes. 

MOLINARI:  Governor Pataki is... 

(CROSSTALK)

MATTHEWS:  And you got a good candidate for governor in Pennsylvania. 

You got Tom Corbett.  You got some good candidates there, yes. 

(CROSSTALK)

MOLINARI:  ... is coming close.

(CROSSTALK)

MATTHEWS:  Are you going to get Arnold—Arnold Schwarzenegger to run against Barbara Boxer?  Is that going to happen, too?

(CROSSTALK)

MOLINARI:  We have got...

(CROSSTALK)

MOLINARI:  ... announcing for Ohio.

MADDEN:  See, that‘s a perfect example.  I mean, you want to look at the...

(CROSSTALK)

MOLINARI:  We have got a really good group of people coming up.

(CROSSTALK)

MATTHEWS:  Basically, they‘re good candidates.

(CROSSTALK)

MOLINARI:  Giuliani is killing Paterson in polls right now in New York.  I mean, just...

(CROSSTALK)

MATTHEWS:  Is Giuliani going to run against Paterson? 

MOLINARI:  I think he‘s thinking about it, but I don‘t think...

(CROSSTALK)

MADDEN:  If you want to look at the future of the Republican Party, look to Ohio, Rob Portman, John Kasich.  I became a Republican because I saw John Kasich on C-SPAN when I was in college. 

(CROSSTALK)

MADDEN:  That‘s the...

(CROSSTALK)

MATTHEWS:  The way a lot of political parties come back is, first of all, they start winning governor‘s races.

MOLINARI:  Right. 

MATTHEWS:  And they win in the administrative jobs, not ideological jobs.

MADDEN:  Right. 

MATTHEWS:  But they can do a better job as governor.

Is that the future, what you‘re saying?

MOLINARI:  But listen to what I just said, too.  I also just talked about races in the Northeast that we can win. 

MATTHEWS:  Governor‘s races.

(CROSSTALK)

MOLINARI:  Governor‘s races, a few Senate races that we can win and some high-profile...

(CROSSTALK)

MATTHEWS:  That‘s winning with practicality and competence, not with ideology. 

MOLINARI:  It‘s with both, Chris.  It‘s with both.  And I think it‘s going to send us into the next presidential with a little more wind at our backs.

MATTHEWS:  Are the Democrats in New York stupid enough to run Paterson? 

(LAUGHTER)

MATTHEWS:  Because they know that Rudy is coming for him.

(LAUGHTER)

MOLINARI:  I hope so. 

(LAUGHTER)

MATTHEWS:  You hope so.  Thank you, Susan.

(CROSSTALK)

MATTHEWS:  What‘s your best pick for an upset next time, big Republican win in next election, next year?

MADDEN:  An upset.

MATTHEWS:  Big upset. 

MADDEN:  Ron Christie.

I‘m sorry—not Ron Christie—Chris Christie in New Jersey. 

MOLINARI:  Chris Christie in New Jersey.  It‘s going to be a great campaign.

(CROSSTALK)

MATTHEWS:  OK.  Thank you.  Well, that would be an upset.  Over Corzine, over the incumbent?

(CROSSTALK)

MADDEN:  Right. 

MOLINARI:  Thank you. 

MATTHEWS:  It‘s doable.  I mean, it‘s happened in the past. 

Incumbents have lost in New Jersey.

MOLINARI:  He‘s a good—and he‘s a good candidate. 

MATTHEWS:  And New Jersey is an angry state against the established politicians over the years.

MADDEN:  Yes. 

MATTHEWS:  They have been tough.  They knocked out Florio. 

MOLINARI:  Yes, no, no, no. 

(CROSSTALK)

MATTHEWS:  They almost knocked Bradley out. 

MOLINARI:  Right. 

MATTHEWS:  Tough state. 

Thank you, Susan Molinari.

Thank you, Kevin Madden. 

Please, come back, and we will talk more about shirts vs. skins.  But I had two shirts here.  I want a skin next time. 

(CROSSTALK)

MATTHEWS:  I want a wilder candidate.

(CROSSTALK)

MATTHEWS:  I want a Palin or a Limbaugh in here. 

(CROSSTALK)

MOLINARI:  Come on, for God‘s sakes.

(LAUGHTER)

MATTHEWS:  Up next: a tribute to the man who led the Republican Party toward tax cuts, your friend and mine, Jack Kemp. 

(CROSSTALK)

MOLINARI:  The best.

MATTHEWS:  Supply-side economics.  That‘s Jack Kemp, a great guy, a giant of economic principles on the conservative side, and, by the way, a really good guy and a big-tent guy.  He died this weekend after a real terrible bout with cancer. 

You‘re watching HARDBALL, only on MSNBC.  

(COMMERCIAL BREAK)

MATTHEWS:  Back to HARDBALL. 

Let me tell you about Jack Kemp.  I have three children, and all three love Jack Kemp.  He and his wife, Joanne, had us out to their place in Colorado to go skiing once.  And my daughter, Caroline, baby-sat for his son a number of times.  And I saw Jack and Joanne at every Redskins game here in Washington. 

And, of course, I had Jack on the show many times.  I will get to that in a minute. 

Do you know what Jack Kemp was like?  He‘s the guy who lit up the room

when he came into it.  He was always up, literally up in the air, when he

came, smiling at you.  He was a college big man on campus, a football hero

and I can‘t believe he was 73 -- who never lost the magic. 

I have never met a guy who is so—who lived so alive, all the time gung-ho, all the time to ski, to follow a game in football, to take an interest in other people‘s kids, and, of course, his own. 

You know what gave him the greatest pride at the end?  Giving all those speeches on the road for money to help pay for the education of his grandkids.  That was his kick.  And that is what he sold on his politics, self-reliance and the self-respect that comes with it, not welfare, not a make-work job, not life on a project or in a lousy school, but enterprise zones and vouchers, the tickets to get their—get out on their own in this country. 

Jack was devoted to the cause of civil rights.  He was friends with black football teammates who faced discrimination on and off the field in his lifetime, later telling U.S. Congressman Vin Weber, “I can‘t help but care about the rights of the people I used to shower with.”

Jack caught the political bug during his off-season jobs, which included an internship with then California Governor Ronald Reagan.  He was elected to Congress in 1970.  And he went on to serve nine terms through the 1980s.

And, through it all, Jack just didn‘t accept that his party and his conservative philosophy should be limited in its appeal.  He never stopped pushing to expand the Republican tent outward.  He wanted Republicans to push and keep on pushing for votes in minority neighborhoods.  As HUD secretary, he worked to stop insurers and lenders from discriminating against minorities.  He helped attract businesses to dying neighborhoods with tax-free zones, all as part of his push for economic empowerment. 

Here he is on HARDBALL six years ago, talking about his legendary refusal to write off any voters. 

(BEGIN VIDEO CLIP, DECEMBER 2, 2003)

MATTHEWS:  Do you think the unions would vote for a Republican candidate for president, under any circumstances? 

JACK KEMP, FORMER U.S. CONGRESSMAN & HOUSING AND FORMER URBAN

DEVELOPMENT SECRETARY:  Maybe the union leadership. 

I was president of the American Football League Players Union. 

(LAUGHTER)

KEMP:  I had the steel workers, autoworkers, communication workers, electrical workers beating the heck out of me every two years, but I got the votes of the working men and women of Buffalo, New York, because I was on their side by lowering the tax burden on labor and capital, and talking about creating jobs by encouraging entrepreneurial capitalism...

MATTHEWS:  OK. 

KEMP:  ... in the inner city. 

(END VIDEO CLIP)

MATTHEWS:  Well, after the 2008 election, which his party lost to Barack Obama‘s Democrats, Jack wrote the following: “Our nation doesn‘t require uniformity or unanimity.  It does require putting the good of our people ahead of what‘s good for mere political or personal advantage.  The party of Lincoln needs to rethink and revisit its historic roots as the party of emancipation, liberation, civil rights, and equality of opportunity for all.”

That‘s Jack Kemp‘s words—good words from a very good man. 

I can still hear him.  I can still see him smiling and his smiling face, wild with enthusiasm for life and what this country can be. 

(COMMERCIAL BREAK)

MIKE HUCKMAN, CNBC CORRESPONDENT:  I‘m Mike Huckman with your CNBC “Market Wrap.”

And stocks rallying, after some encouraging economic reports today, the Dow soaring 214 points, the S&P 500 gaining 29 points, closing above 900, and moving into positive territory for the year, and the Nasdaq jumping 44 points.

A sign of hope in the housing market today—pending home sales rose more than 3 percent in march.  It was the second straight monthly increase and the first back-to-back gains in almost a year. 

In addition, construction spending was up in March, after five straight monthly declines.  Meantime, federal regulators have reportedly told Wells Fargo bank to shore up its finances, after government stress tests showed the bank would have trouble surviving a deeper recession.  Despite that, though, Wells Fargo shares soared 23 percent today, following bullish comments by investor Warren Buffett. 

And oil rose to a five-month high today, crude gaining $1.27, closing at $54.47 a barrel. 

That‘s it from CNBC, first in business worldwide—now back to

HARDBALL. 

MATTHEWS:  Welcome back to HARDBALL. 

Did the newly minted Democratic Senator Arlen Specter invite a primary challenge when he uttered these words on “Meet the Press” with David Gregory? 

(BEGIN VIDEO CLIP, “MEET THE PRESS”)

SEN. ARLEN SPECTER (D), PENNSYLVANIA:  I did not say I would be a loyal Democrat.  I did not say that.  But I...

DAVID GREGORY, MODERATOR, “MEET THE PRESS”:  All right, just to be

clear, Wednesday, in “The Wall Street Journal,” Jonathan Weisman and Greg

Hitt reported that, when you met with the president, you said, “I‘m a loyal

Democrat,” and according to people familiar with the White House—quote -

“I support your agenda.”

So, that‘s wrong?  You didn‘t say those things? 

SPECTER:  I did not say, “I‘m a loyal Democrat.”

(END VIDEO CLIP)

MATTHEWS:  Wow. 

Well, apparently, George Stephanopoulos disagrees with Arlen Specter on this, because he said, apparently, he did say that to the president, according to a number of reports. 

Did he decrease, by the way, in his denial this Sunday his chances of winning that Democratic primary, or did he encourage other people to enter it next year? 

Let‘s turn to Philadelphia talk show host E. Steven Collins. 

E. Steven, thank you.

This is really bizarre.  Maybe that was a tough question to answer.  Maybe there was no good answer.  But being a loyal member of a political party is sort of a prerequisite to getting people to go out and bust their hump for you, and getting the nomination and then winning the election.  It‘s the normal way people get involved.  They believe in loyalty, and not on party-line everything.  But you generally sort of identify with the party‘s purposes and general overall culture, don‘t you? 

E. STEVEN COLLINS, RADIO TALK SHOW HOST:  (NO AUDIO)

MATTHEWS:  I don‘t hear...

COLLINS:  (NO AUDIO)

MATTHEWS:  I‘m not hearing E. Steven. 

I think we have got a problem here.  We‘re going to come back in a minute, right after this. 

We‘re going to get to Michael Smerconish, hopefully, as well.

Right back with a big topic of this crazy thing in Pennsylvania—we will be right back. 

(COMMERCIAL BREAK)

MATTHEWS:  Well, we‘re back.  Joining us right now is the “Washington Post‘s” Eugene Robinson, who is an MSNBC political analyst, and a Pulitzer Prize winner, and the “Politico‘s” Roger Simon.  Gentlemen, thank you.

You know, we were going to—we‘ll talk to you guys about it because it‘s fascinating.  This thing about Pennsylvania, just when you think the pie has been baked and Arlen Specter is going to be the Democratic nominee and the inevitable winner in the general election, with no primary competition, he goes on “Meet the Press” with David the other day and denies he ever said he was a loyal Democrat.  I don‘t really know what to make of that.  It seems to me that would be a minimal requirement to be a loyal party member, even if you just switched. 

ROGER SIMON, “POLITICO”:  Why do we get the feeling that that the only thing Arlen Specter is loyal to is Arlen Specter? 

MATTHEWS:  I don‘t know. 

(CROSS TALK)

MATTHEWS:  Is this a Faustian deal that‘s come asunder? 

SIMON:  I don‘t know if it‘s come asunder or not.  The president and the party—the Democrats have certainly gotten what they want out of it.  We don‘t know if Arlen Specter will. 

(CROSS TALK)

MATTHEWS:  The way we keep score in American politics is who wins. 

EUGENE ROBINSON, “THE WASHINGTON POST”:  Yes. 

MATTHEWS:  Next year, if Tom Ridge, the very popular former governor, two termer, pro choice—that won‘t be an issue, abortion rights.  He comes back in the race.  He was homeland security guy.  He has a book coming out.  He‘s very likable. 

Arlen is not very likable.  I‘m not sure likability is more important than party label, but look at this.  A new Quinnipiac poll just out shows Specter beating Pat Toomey by a lot, 53 to 33.  But in a match up against former Pennsylvania Governor Tom Ridge, who might enter, it‘s within the margin of error, 46-43, against a guy who has been a little bit on the sidelines the last couple of years, against a guy who has been in the news every second for two weeks.  That suggests to me a match-up. 

ROBINSON:  Well, that would be quite a match-up.  I think that would be a really tough race.  And what are the loyal Democrats of Pennsylvania to think of voting for a guy who says I‘m not a loyal Democrat. 

(CROSS TALK)

MATTHEWS:  Is there another—is this going to be like the provisional IRAs?  We‘re going to have the loyal Democratic party?   

SIMON:  He can back out of this.  He can say look, I‘m serving the people.  I don‘t follow anybody‘s party lines. 

MATTHEWS:  How does that work with the ward leaders in South Philly, who bust their hump every day for the Democratic party, who bring in the Democratic ticket every year as a living.  That‘s what they do.  They‘re party leaders in Allegheny and Scranton in Pennsylvania, all over the state.  They believe in their party.  They now have a nominee who says I‘m not really one of you guys.  I‘ll vote with you occasionally—

ROBINSON:  It‘s a cultural thing.  You‘re a Democrat or you‘re a Republican, but you‘re not somewhere in between, right? 

MATTHEWS:  I think some people are but they‘re not active in political parties. 

ROBINSON:  Well, I‘m not really one of you, I‘m just—

SIMON:  Joe Lieberman made it work.  If you can deliver the goods to those people you‘re talking about, the ward bosses, the ward bosses will tend to support you. 

MATTHEWS:  Yes.  But in defense of Joe Lieberman, on domestic issues, he identified with those working class people in Connecticut, regular Democrats, the lunch pail guys, if you will.  They came out and worked for him like hell.  He didn‘t win because of the elite or the college types.  He won because regular Democrats beat hell of the party and gave him the seat back as a Democrat.  I‘m not sure Arlen fits in that cultural mode of working class Democrat. 

SIMON:  Exactly. 

MATTHEWS:  Let me go to a guy who is a working class Republican, Jack Kemp.  Your feelings?  This guy really did talk the talk and I think walk the walk about inclusion. 

ROBINSON:  He really did.  It was striking.  He was at times a lonely voice in the Republican party, but a consistent voice for expanding the party and including minorities.  One wishes one heard more of that from the party.  I think he set an example that I wish others would follow.  The Republican party has a good core set of principles you can build something on. 

MATTHEWS:  It‘s a great case for integration, because one of the things you learn is when kids go to school together, they sit in different seats in the dining room and all that—we‘ve been through all that, the cafeteria.  But they do get to know each other.  And the racial differences, the ethnic differences do tend to drop.  We know that.  We know that. 

Here is Jack Kemp, who spent his life playing a sport which is very integrated, pro football.  And he identified with his other players.  He identified with their denial of rights. 

SIMON:  Oh, sure.  He had a good record on civil rights.  He had a good record on housing.  But he had a bad record on getting members of his own party to go along with him.  He even alienated the guy who put him in the HUD seat, George H.W. Bush.  I mean—

MATTHEWS:  For talking too much. 

SIMON:  Yes, by—Jack Kemp was a wonderful guy, but he was an enthusiast about everything he did. 

(CROSS TALK)

MATTHEWS:  I used to go to Redskins games with him.  Every game, he was totally into it.  He got the ring, football ring.  Totally in to skiing.  Totally into kids, other people‘s kids.  You‘re right. 

SIMON:  We don‘t have to put him on a pedestal.  His whole supply side, trickle down economics, Laffer curve, the whole bit, turned out not to be true.  I mean—

MATTHEWS:  Let me say this, not—I don‘t claim to be a Republican, but he did help reduce the tax rates from up around 70 percent, where they were ridiculously high.  And all we had was tax cheats at 70 percent, because the people who had some moxie and some lawyers and accountants, didn‘t pay 70 percent.  They had loopholes that got them down.  He said, it‘s better to have a lower rate that people actually pay. 

ROBINSON:  Roger is right.  It was Voodoo economics.  But the great thing about Jack Kemp was he would go into low income, ghetto communities and see not, you know, ghetto dwellers, but see human potential, see people who could be doctors, lawyers—

MATTHEWS:  That‘s why he fought the vouchers and fought for enterprise zones. 

ROBINSON:  Exactly.  He saw the need for opportunity.  And, you know, that‘s a significant thing.  And I think we ought to remember him for that. 

MATTHEWS:  I think when the Republican party looks at its big tent potential, they might listen to this guy, but you don‘t? 

SIMON:  Sure.  Big tent is great, but the fact is, you‘re not going to be able to sell what Jack Kemp lived his whole life for, which is tax cuts and forget about deficits. 

MATTHEWS:  What about vouchers? 

SIMON:  Vouchers are popular now.  What is not popular is—

MATTHEWS:  Why is the Democratic party in Washington killing the voucher program for those 1,700 kids, minority kids, who are going to be thrown back into lousy schools by killing the voucher system? 

ROBINSON:  There‘s an issue that I think a smart Republican could make hay with.  I really do, because the vouchers are very popular in some of the communities that would really benefit. 

MATTHEWS:  And you can usually tell a kid who benefits from a voucher and gets his shot. 

(CROSS TALK) 

MATTHEWS:  Sometimes liberals make smart moves occasionally.  They don‘t always have to be knee jerk big government.  We‘ll be right back.  We have something to talk about in this next segment.  It‘s going to be very exciting.  IT has to do with John Edwards.  We‘ll be right back.

(COMMERCIAL BREAK)

MATTHEWS:  We‘re back with Eugene Robinson and Roger Simon.  We‘re getting back into the hanky panky country here.  Father to daughter apparently or child—

SIMON:  He says no. 

MATTHEWS:  OK, well, there‘s that story.  It‘s out there.  And now there‘s the Feds are out looking at whether he spent some money to keep this quiet.  Is this put bluntly enough?

SIMON:  This is a guy who paid for his haircuts with campaign funds.  I‘m not sure he was scrupulous of how he paid his mistresses.  Having said that, let me also say that I think it‘s going to be really tough to get a criminal conviction for even what is being bandied about in the press.  Paying hush money is not a crime.  People get paid hush money all the time.

MATTHEWS:  What are you talking about?  A hundred thousand dollars to this person who makes videos for him.  Apparently, these are not the value claimed.  Fourteen thousand dollars for, quote, furniture, which apparently didn‘t exist. 

SIMON:  But she‘s going to say I made videos.  So they were crappy videos, so what?  Crappy videos get made all the time.  And in terms of hush money—

(CROSS TALK)

MATTHEWS:  There she is making movies.  There‘s evidence that she‘s making movies. 

SIMON:  I don‘t want to accuse the victim with the victimizer, but Elizabeth hushed it up too.  It‘s not like anyone came in front of the American people and said, this guy is having an affair. 

ROBINSON:  There may be a difference between a crappy video made by Joe Blow and a crappy video made by the mistress.  Right?

(CROSS TALK)

MATTHEWS:  You know how investigations work.  As Bob Woodward, our hero, once said, follow the money.  The way it matters is that this is money collected by private contributors, who didn‘t think they were spending money to, quote—well, I‘m not even going to guess, to shut up somebody.  Just guessing.  That‘s a crime.  And you‘re saying that‘s not a crime? 

SIMON:  I‘m saying, first of all, you have to prove a quid pro quo. 

Then is who is she shutting up to.

MATTHEWS:  Who is leaking the fact that the Feds are conducting this investigation?  I always wonder, who decides to investigate, because there‘s a prima faci case there or they wouldn‘t be blowing it all over the place and doing this investigation. 

SIMON:  Well, the US attorney from Raleigh, North Carolina is not commenting, officially. 

MATTHEWS:  He‘s commenting to the press. 

SIMON:  He‘s not on record as saying it exists.  But apparently the press feels confident enough to say that it exists, to say it‘s so.  But the fact is this is a pretty complicated story.  It‘s not like campaign funds directly went to this woman.  This woman was getting private funds from a big Edwards contributor.  We know that.  He admitted it.  Now he‘s dead, so we‘re not able to explore that. 

Also, now, we have PAC money that went to her, but then we have a transfer of funds from the campaign to the PAC.  There‘s not a clear bright line here. 

ROBINSON:  But exactly, as Chris said, follow the money.  And the fact that there is money kind of going every which way in this story I think almost obliges the U.S. attorney to at least scratch your head and say, gee, what was going on? 

MATTHEWS:  Why do you think he chose to run for election to the presidency again, after getting beaten the first, time having this marital complications going on? 

SIMON:  Well, he did well in Iowa.  He had every reason to believe he was a front-runner in the polls. 

MATTHEWS:  He thought this would never come out.

SIMON:  No one knew Barack Obama Was going to run when he decided to run.  It wasn‘t even sure Hillary Clinton was.  He was doing fine.  And he probably knows a half dozen, if not more, politicians who get away with affairs and, you know, it doesn‘t get exposed.  And, as a matter of fact, as I pointed out, nobody exposed this who had direct knowledge of it. 

MATTHEWS:  No, I think you‘re right.  Let me ask you about something that‘s a little more sublime, that‘s the Supreme Court.  The president of the United States, the new president, Barack Obama gets to do something that puts his name in history, right up there perhaps with health care.  He could can pick a very strong liberal judge who could compete intellectually with a bright conservative, Antonin Scalia.  He could make history.

Or he could not.  He could pick a very good brain like Steven Breyer, who would be a great judge, but he wouldn‘t make history.  What‘s he going to do?  Your choice.  You‘re a Pulitzer Prize winner. 

ROBINSON:  I‘m not clairvoyant, however, so I don‘t know what he‘s going to do.  You know, my guess is—you know, he was a professor of Constitutional law.  And so my guess is that he‘s not going to do what we expect him to do. 

MATTHEWS:  But he is, apparently to those who have studied his scholarship as a professor at the University of Chicago, say he‘s basically a person who believes in pragmatic jurisprudence.  He does not believe in landmark decisions on order.  He doesn‘t believe in activism per se. 

SIMON:  But he also knows he‘s going to have 60 votes in the Senate. 

He doesn‘t know how many more seats he‘s going to get. 

MATTHEWS:  Now is the time to push a leader?

SIMON:  I bet you he does something bold.  He really wants to do without any constraints about, can I get this person confirmed or not. 

ROBINSON:  He‘s not someone who goes for small gestures.  He tends to see an opportunity and go for it.  But I don‘t think it‘s necessarily going to be a liberal lion. 

MATTHEWS:  Why do we keep making these—excuse me, the expression, pencil necks, we never heard of.  Why can‘t we pick a public figure that we‘ve heard of?  Why not a Jennifer Granholm?  Why not a Maria Cuomo, or someone younger, perhaps like him?  What‘s wrong with picking a public figure with a public record, who knows the Constitution and believes in it? 

ROBINSON:  I wouldn‘t rule that out. 

MATTHEWS:  We always get set scholar.  By the way, why do they all have to be Ivy Leaguers? 

ROBINSON:  For much of the country‘s history, that‘s what the Supreme Court was. 

MATTHEWS:  The Supreme Court was never—every member of the Supreme Court now, eight of them, went to either Harvard, Yale, most of them, and one at Columbia, and one to Northwestern, the ninth.  Everyone is an elite. 

SIMON:  Mario Cuomo turned it down, let‘s remember.  Also, Hillary Clinton ruled it out.  I thought, early on, before she took secretary of state, it would not have been a bad move for Barack Obama.   

MATTHEWS:  She‘s certainly intellectually up to that job.

SIMON:  Yes, and she certainly could get confirmed.  In fact, she could give up state and still do it.

MATTHEWS:  And you think she won‘t?

SIMON:  I think it probably won‘t be offered.

(CROSS TALK)

MATTHEWS:  Our minds are now melded into the same vocabulary. 

(CROSS TALK)

MATTHEWS:  Will he go to the usual cookie cutter?  He‘s supposed to pick a Latina, a Hispanic woman, or a Latina would be a woman.  Would he do that just because that‘s sort of the unfilled void in his patronage plan so far?  It‘s been argued—

ROBINSON:  I doubt it.  I doubt it. 

MATTHEWS:  Sonia Sotomayor from New York? 

SIMON:  He wouldn‘t do it just because.  But if you‘re asking, if there was a qualified Latina out there, would he recognize the symbol of it and say this would be a good—

MATTHEWS:  Even if she was involved in a case that involved firefighters and the old question of the old white firefighters fighting for their position and holding on to what they have, against the new breed guys, the people of color coming along.  That‘s the kind of fight that goes on all the time. 

SIMON:  It would be a fight.  But he‘s going to get his choice through the Senate and through the Judiciary. 

MATTHEWS:  No matter who? 

SIMON:  No matter who.  Almost no matter who.

MATTHEWS:  You know that‘s what they said about the Titanic. 

ROBINSON:  Yes. 

MATTHEWS:  Not even God himself could sink this ship. 

(CROSS TALK)

MATTHEWS:  I want to take that back.  He could lose. 

SIMON:  Who could lose? 

MATTHEWS:  Barack Obama could lose in this court appointment. 

SIMON:  He could.  It‘s possible.  But it‘s so unlikely -- 

MATTHEWS:  I‘m just trying—we‘ve had a Faustian decision with Arlen Specter—

(CROSS TALK)

MATTHEWS:  Your thought now, the Supreme Court?  And one thing just to finish up with Arlen Specter; is it possible that if he serves the rest of this year as a Democrat, which is probably going to happen, we could predict that, that he will vote for health care and Barack Obama will get done the number one goal of his first year? 

ROBINSON:  Yes, I think that‘s right. 

SIMON:  I suspect that.

MATTHEWS:  I think you get health care thanks to Arlen Specter.  Thank you, Gene Robinson and Roger Simon.  Join us again tomorrow night at 5:00 and 7:00 Eastern for more HARDBALL.  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.

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