updated 5/8/2009 10:21:57 AM ET 2009-05-08T14:21:57

Guest: Tom Ridge, Frank Ricci, Karen Torre, John Payton, Clarence Page, Howard Fineman, Joan Walsh

CHRIS MATTHEWS, HOST:  Firefight.

Let‘s play HARDBALL.

Good evening.  I‘m Chris Matthews.  Leading off tonight, Tom Ridge.  He announces he will not run for the U.S. Senate.  He‘s here to talk about the fate of Pennsylvania and his Republican Party.  It all started with Arlen Specter switching sides, an 80-year-old ex-Republican who says he‘s entitled to be treated like a senior Democrat but also refuses to say he‘s a loyal Democrat.

But what about the voters?  Aren‘t they entitled to an option, to be able to vote for a loyal Republican or a loyal Democrat?  Tonight, in his first television interview, we put that question to the popular two-term governor of Pennsylvania, Tom Ridge.  I‘ll ask him why he won‘t run, and who should.

Plus: The heat rises on affirmative action.  When does the quest for racial and ethnic balance become a blunt demand to share the jobs?  It‘s the first racial discrimination case of the Obama era, and it‘s sure to be a key point of debate when the president picks a Supreme Court nominee.  Frank Ricci is a firefighter in New Haven, Connecticut.  He wanted a promotion, but he needed to pass a test first.  So he studied hard, 13 hours a day.  He‘s dyslexic, so he hired someone to read textbooks onto audiotape, and it worked.  Frank Ricci finished 6th out of 77.

So what did the city of New Haven do?  It threw out the test because too few minority candidates qualified for promotions.  Frank Ricci took his case to the Supreme Court, and he joins us in just a minute to tell his side of the story.  Affirmative action is one of those hot-button issues, as you know, that stirs righteous passion on both sides.  We‘ll ask our own Pat Buchanan and “The Chicago Tribune‘s” Clarence Page about the Ricci case and how to get ready—well, by the way, you should just get ready for this meeting of the minds.

We start, however, with Governor Tom Ridge.

Why aren‘t you running for senator from Pennsylvania?  For weeks, I‘ve heard, Tom Ridge is coming.  He‘s going to knock the ex-Republican, Arlen Specter‘s, block off.  You‘re not doing it.  Why not?

TOM RIDGE ®, FORMER PENNSYLVANIA GOVERNOR:  Well, you know, Chris, because we‘ve done this show a couple times, I‘ve been a congressman 12 years and governor for 6 years, 9 months and 5 days, toughest personal and political decision I ever had to make.  And at this time in my life, I decided that I can do what I want to do for my party, which I enthusiastically joined almost 40 years ago.  I prefer to do it as a private citizen, in addition to promoting other causes that are important to me.  Pure and simple.

MATTHEWS:  Did you ever get a drift, from all the years you were a political partner of Arlen Specter, that he was not a Republican?  Did you ever think he wasn‘t a Republican, he didn‘t have the heart for it, he didn‘t feel like one, didn‘t want to be one, that he was ready to jump?

RIDGE:  Well, if you believe, as I do, that the Republican Party has some basic principles, but we have to tolerate differences of opinion from time to time—I know I worked for him and literally thousands and thousands of Republican committee people in Pennsylvania worked very, very hard for him for 30 years.  So we accepted him and his views as a Republican.

MATTHEWS:  And you didn‘t believe he was a Democrat all these years pretending to be a Republican.

RIDGE:  No, we accepted him.  He ran as a Republican, we supported him as a Republican, and he was a Republican.

MATTHEWS:  What do you make of somebody who says, I‘ll become a Republican if I win that first job of DA, and now has been a Republican as long as it has suited his purposes, and then admits publicly—I‘m not saying this for him, he‘s saying it for himself—I quit the Republican Party because I was losing a poll, that it looked like I would lose the nomination next time.  The party‘s no longer useful for me as a vehicle.  I‘m going to try the Democratic Party and say I‘m a Democrat now.

RIDGE:  Well, everybody has to make difficult decisions.  I just made one and announced it today.

MATTHEWS:  Yes.

RIDGE:  He obviously made one.  What motivated him to take his beliefs to the other side of the aisle, I think you‘re going to have to ask him.  From my point of view, I would have preferred to see him stay and fight for what he believed in as a Republican in the party that supported him literally for years.

MATTHEWS:  Well, what does it feel like to be in the “first wives club”?

(LAUGHTER)

MATTHEWS:  That‘s what the Republican Party has become, as per Arlen Specter.  It‘s a party to be dumped.

RIDGE:  Well, I think that may be his perspective, but we think there‘s great opportunities not only in Pennsylvania in 2010 but long term.  I mean, there are certain principles that guide us.  But frankly, I think we have to reshape our message, reduce the decibel level—we‘re a little bit too doggone shrill—and be less judgmental about those people within the party that may disagree with us from time to time.

As Mark Twain once said, what is it, The notice of my death is grossly exaggerated at this point.  We‘ve got a long way to go, but look out for 2010.  I talked to John Cornyn today, Mitch McConnell.  I‘m not going to be a candidate, but I will be involved in Pennsylvania.  To the extent that people want to listen to me around the country as we rebuild the Republican Party back to a significant force that‘s not regional but national, I‘m in.

MATTHEWS:  OK.  Governor Ridge, it‘s HARDBALL.  Ready?

RIDGE:  Got it.

MATTHEWS:  The way they vote on the floor of the United States Senate is you have a little thing there.  It says “aye” or “nay” on it.

RIDGE:  Yea, nay.

MATTHEWS:  There‘s only two ways.

RIDGE:  Got it.

MATTHEWS:  Yea or nay.  OK?  Which would have been your answer to the question of the stimulus bill?

RIDGE:  Nay.

MATTHEWS:  Why?

RIDGE:  Well, you know, I think there are ways that you could have targeted some of these...

MATTHEWS:  Because Arlen was aye.

RIDGE:  Well, it could be.  But I mean, as I took a look at the stimulus package, there were about 10 or 12 percent actually, I think, generated some kind of job creation.  But I take a look at what—remember, my context begins in 1982.  Inflation was double digit and employment was double digit and Ronald Reagan cut taxes, limited government, reduced some regs.  And there was a bit of a stimulus package, but my judgment is that these dollars were not focused to create commercial opportunities where people could actually grow—and grow jobs.

I would have loved to have seen President Obama say, All-in energy plan.  Let‘s build nuclear plants.  Let‘s do clean coal.

MATTHEWS:  Right.

RIDGE:  Let‘s do conservation.  Let‘s do all these things.  I‘d loved to have seen him target it to life sciences and biosciences, target some of the stimulus to those areas.  You‘re not picking winners or losers, but we know there is an international opportunity to deal with the environment, deal with the economy and create jobs at the same time.  I think they missed the boat, so I voted no.

MATTHEWS:  You talk like a moderate Republican, meaning you‘re a fiscal conservative mostly, but you don‘t call yourself a real conservative, do you.

RIDGE:  No, I‘m...

MATTHEWS:  I never thought of you as a conservative per se.

RIDGE:  I had a very, very conservative record when it came to spending other people‘s moneys.  I mean, one of the principles that I‘ve always felt the Republicans stood for is, as we look at your paycheck, it‘s yours, not ours.  And I recognize that government has no money of its own, so I want to be respectful...

MATTHEWS:  Yes, but you were not a hawk because—you‘re not a right-wing hawk.

RIDGE:  No.

MATTHEWS:  I watched your voting record.

RIDGE:  I‘m not.

MATTHEWS:  The reason Dick Cheney didn‘t back you for—well, you know all this history.

RIDGE:  Yes.

MATTHEWS:  Why am I telling you?  The reason you weren‘t vice president for the last eight years is because you voted against the MX.  You thought it was wasteful.  You had problems with High Frontier.  Dick Cheney wanted a vote for all that stuff.  He got mad at you for that when he was defense chief, right?

RIDGE:  Well, I don‘t think he—he obviously...

MATTHEWS:  So it‘s not a—you were the true conservative, you would argue.

RIDGE:  Well, I would argue...

MATTHEWS:  Because you didn‘t want to waste the money.

RIDGE:  I would argue that every vote, for me, was a reflection of what I thought was best for my country at the time.

MATTHEWS:  Yes.

RIDGE:  And somebody said a long time ago—I think Jack Kemp said it best, that you represent your party best when you represent your best thinking.  They bring you to Washington...

MATTHEWS:  Yes.

RIDGE:  ... to give you the benefit of your best judgment.  And on those occasions where I disagreed with my party, I exercised my best judgment.  So I‘m...

MATTHEWS:  Why do you think your party...

RIDGE:  ... a proud Republican.

MATTHEWS:  Why has your party begun to resemble the last of the Mohicans in the Northeast United States?  You‘ve lost all the members of the United States Congress in the House in New England.  You‘ve got left two or three—well, you‘ve only got Judd Gregg, and he‘s quitting.  You‘ve got the two senators from Maine, and that‘s it in the Northeast.  And by the way, the Northeast defined is all the way down to the North Carolina border.  That‘s the Northeast, and all the way to the Iowa border.

So what happened?  Was it the Iraq war?  Was it Cheney‘s war over there?  What did it to you?

RIDGE:  Well, I think both—I mean, I look at Pennsylvania as a frame of reference, and clearly—nationally—you know, there‘s certainly fundamentals that always guided us as Republicans, limited government, fiscally ethical government, competent government, outcome-based, and understand that government has no money of its own, so when you make an investment, make sure you get the outcomes that you need.

Our message became shrill.  We became very divided over these social issues.  And at some point in time, we‘re going to have to be a lot less judgmental...

MATTHEWS:  Yes.

RIDGE:  ... and a lot more tolerant because we will always be the pro-life party.  There‘s no question about that.  But we have to...

MATTHEWS:  Well, you‘re pro-choice.

RIDGE:  That‘s right.  But it‘s the notion of, Let‘s accept certain differences of opinion to understand that these are principled people who disagree with you, and let‘s treat them with greater civility and respect than, frankly, we have in the past.

MATTHEWS:  Did you have any conversation with Arlen Specter the last couple days?

RIDGE:  Did not.

MATTHEWS:  Did you have any conversation with the governor of Pennsylvania, the current governor?

RIDGE:  No, I did not.

MATTHEWS:  Did you talk to any top Republicans about this?  And what was your assurances—what was their case that you could win?

RIDGE:  Well, I mean, that several people ran polls, and some people even announced they were going to run some polls.  And I said, Don‘t bother, save your money.  I mean, if I had taken a poll, I‘d have never run for governor and probably wouldn‘t have run for Congress.

MATTHEWS:  But I have seen polls with you ahead.

RIDGE:  That‘s right.  But (INAUDIBLE) polls (INAUDIBLE) behind. And polls are a snapshot.  You and I have had this discussion before.

MATTHEWS:  Yes, but Bob Asher (ph) ran a poll up in Pennsylvania, Opinion Dynamics or whatever it‘s called, and you came out ahead.

RIDGE:  Yes.  And—but it would have been a tough campaign, tough primary, tough general election.  It‘s a contact—it‘s a competitive sport.  It‘s a contact sport.  I mean, the biggest challenge for me in making this decision—it was the toughest decision I ever had to make—was the fact that I had literally people—and I haven‘t been in the political arena in a contest for 10 years—who wanted to put on their helmet and go in...

MATTHEWS:  Yes.

RIDGE:  ... and compete (ph) with me.  And it‘s very humbling and gratifying at the same time.  But at this point in time, I decided it‘s just not what I want to do.

MATTHEWS:  What do you make of people that switch parties?  I‘m going through the list.  I wrote about this years ago.  First of all, it never turns out well for most of them.

RIDGE:  I don‘t think any of them.

MATTHEWS:  John Lindsey (ph) was one of the most attractive candidates who (INAUDIBLE) became a Democrat, nobody cared about him.  John Connally, a very attractive Democrat, became a Republican, went the other way, disappeared, got one delegate vote.  People don‘t like turncoats generally, do they.

RIDGE:  I don‘t think...

MATTHEWS:  “Turncoat” to strong a word for Arlen Specter?

RIDGE:  Well, no, I‘m not going to use...

MATTHEWS:  Is it too...

RIDGE:  ... that because I respect Arlen‘s 30 years of service and...

MATTHEWS:  Was it turncoat behavior?

RIDGE:  Well, I think it was—he made a decision that I think he may

now regret, given what the Democrats did to him.  But I don‘t second guess

I mean, that‘s—I‘m not going to second guess or...

MATTHEWS:  Well, what do you think of people that change parties?

RIDGE:  I would—here‘s what I would prefer...

MATTHEWS:  Right.

RIDGE:  ... instead of answering that question.  I would prefer that you stand your ground and fight, fight for what you believe in, in the context of the party that has supported you for 20 to 30 years.  People go to the Alamo not because they won, they go because people stood there and fought for something they believed in.

MATTHEWS:  Yes.

RIDGE:  And I would have preferred to see Arlen stand and fight...

MATTHEWS:  Yes.

RIDGE:  ... and not hold—and hold his ground.

MATTHEWS:  I didn‘t see Davey Crockett putting on a Mexican uniform, did you?

RIDGE:  No, I didn‘t.  You know, these are tough issues for us.

MATTHEWS:  Yes.

RIDGE:  And I do hope that my party, at some point in time, is less judgmental...

MATTHEWS:  OK...

RIDGE:  ... more expansive...

MATTHEWS:  OK...

RIDGE:  ... because I think...

MATTHEWS:  HARDBALL time.  Can Toomey beat a Democrat?

RIDGE:  Depends who the Democrat is.

MATTHEWS:  Could he beat Specter, the switcher?

RIDGE:  I don‘t know.  I don‘t know.  Depends on the nature of his campaign.  But I think he‘s going to have...

MATTHEWS:  Who you voting for?

RIDGE:  Well, I‘m going to wait and see who‘s in the primary.

MATTHEWS:  No, if you had to vote between Toomey, the conservative Republican, or Specter, the ex-Republican, who would you vote for?

RIDGE:  It‘s a wonderful country, this America.  It‘s called a secret ballot.

MATTHEWS:  Come on!

(LAUGHTER)

MATTHEWS:  Aye or nay?

RIDGE:  You got my answer, Chris!  That‘s hardball.

MATTHEWS:  Tom Ridge...

RIDGE:  It would have been really hardball if it‘d been Matthews versus Ridge.  That would have been a pay-per-view...

MATTHEWS:  That would have been two nice guys.

(LAUGHTER)

MATTHEWS:  That‘s not the Pennsylvania way these days!  Anyway, thank you, Tom Ridge.

RIDGE:  Thanks, Chris.

MATTHEWS:  Much more on the battle for the heart and soul of the Republican Party later on in the show.

But up next, that firefighter at the center of that discrimination case up in Connecticut.  Was he denied a promotion on racial grounds?  He‘ll join us.  He‘s going to be here right now in a minute.  You watch HARDBALL and stay with us on this hot topic.  It‘s coming up in just a minute here on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL.  It‘s a case that‘s firing up both sides of the Affirmative Action debate.  Firefighter Frank Ricci of New Haven, Connecticut, qualified for a promotion after scoring high on an exam.  But when too few minorities qualified for promotions after that exam, the city of New Haven just scrapped the exam and promoted no one.  Now Ricci is suing the city of New Haven and his case is pending before the Supreme Court.

In a moment, we‘ll be joined by the president of the NAACP Legal Defense Fund, but right now, Frank Ricci joins us.  Welcome, Mr. Ricci.  We‘re also joined by attorney Karen Torre.  Thank you, Ms. Torre, and thank you, Frank Ricci.

Frank, let me ask you this question.  When you took the exam and when you finished the exam, did you feel, after getting the results, that you were going to make it to it official?  You were going to get that promotion to lieutenant?

FRANK RICCI, CONNECTICUT FIREFIGHTER PLAINTIFF:  Yes, I did.  We, you know, worked very hard and studied and had a good command of all the material that was on the test.  And when we looked at the test after we took it, I felt pretty well.

MATTHEWS:  Were there any complaints by your fellow firefighters after the test as to the fact of whether the test was relevant or not?  Did anybody say these were a lot of obscure questions that didn‘t seem important to a fire official?

RICCI:  Chris, no, that wasn‘t the case at all.  The city went to extraordinary lengths to provide a roadmap for us to study for this exam, and the test went as far to even tell you what books the questions came from.  And the oral interviews were given by people from all over the country, fire department experts.  So we all felt really good about the exams and the way the exams were constructed.

MATTHEWS:  But were the questions concerning firefighting?  In other words, when you get to a fire, whether an electrical fire or chemical fire or something tricky, in the city of New Haven, did this testing seem relevant to the job you were trying to get, a fire official?

RICCI:  Without a doubt.  One percent, the test was valid.  It was fair.  It was drawn from nationally accepted materials, nationally accepted books.

MATTHEWS:  Let me go to Ms. Torre.  When did you get the word that these exams were going to be thrown out, that the city of New Haven didn‘t like the results, there weren‘t enough minority winners, they didn‘t like it because of political pressure—that‘s, I think, your argument—and they were going to junk them and not do anything at all, not promote anybody?

KAREN TORRE, ATTORNEY FOR FRANK RICCI:  Well, the results came out in late December, Chris.  And beginning of January of 2004, the city spent about three months scouring about, looking for some excuse to justify scuttling these promotions.  They spent almost three months trying to find a basis on which to attack these exams, and they came up with absolutely nothing.

And then as far as we‘re concerned, the vote, the 2-to-2 vote, I might add, by a fractured civil service board that had been pressured by city officials to scuttle the promotions, was the result of just raw exercise of political muscle and not anything to do with any legitimate concerns about Title VII.

MATTHEWS:  Let me ask you, Frank, within your department up there, how many people are there in the New Haven department, the fire department?

RICCI:  Approximately around 350, Chris.

MATTHEWS:  How many black officials do you have, people above—who are actually lieutenant or above?

RICCI:  I don‘t have the exact numbers off-hand, but our past chief of department was an African-American.  Our current chief of operations presently is African-American.  We have several African-American and Latino firefighters in command positions within the department.

MATTHEWS:  When the results came out, did you get to talk to any of your fellow firefighters who were African-American or Latino and did they individually express anger, or did it only come from the organized group?

RICCI:  No, but the anger might surprise you.  The anger came from the test being thrown out.  You know, I hate the black and the white and the Hispanic.  We‘re all firefighters.  But for example, one firefighter who just happens to be African-American filed an affidavit with the court that said in—and I‘ll paraphrase, but in past tests, he didn‘t score well, but on this test, he took time away from his family, he studied hard and earned a promotion if this list was certified.

MATTHEWS:  So that tells you what?

RICCI:  I don‘t understand your question.

MATTHEWS:  Well, what do you—what is the—I‘m trying to find out whether—let me go to Ms. Torre.  Individually, do the firefighters in New Haven who are African-American believe that they were discriminated against by the nature of this test?  Is that a fact or not a fact?  Do they believe it was a discriminatory test?  Not the organization that may be causing trouble for you up there or was active in pressuring the city government, but do individual black firefighters and Hispanic firefighters believe this was an unfair test?

TORRE:  I don‘t believe so.  I think there‘s a very tiny—very tiny group of people within the department who are really behind this dispute, Chris.  We had three African-Americans who were eligible for promotion.  They became victims.  We had two Hispanic victims.  And there was widespread support for us among the Hispanics in the department.  They publicly supported us.

MATTHEWS:  Yes.

TORRE:  And many African-Americans in the department agree that—that this was really a dispute started by a very small group of people who failed the exams.  And so if there‘s any fracture, it‘s really within the African-American community.  And for the most part, we‘ve enjoyed widespread support for our efforts.

MATTHEWS:  Let me ask you about your views about Civil Rights.  It seems to me from my understanding of Civil Rights, there‘s a couple ways you can look at these meritocracy tests.  One is that there should be a sufficiency level of knowledge.  It shouldn‘t just be who is the smartest person, they get the top jobs.  It should be, who is smart enough and knows enough to do the top jobs.  And then you find other ways of deciding who gets the jobs, like experience, ability to lead other people, those intangibles.  And you have to do that basically by watching people and watching their records and studying their records. 

And there‘s another belief that questions should only be relevant.  You don‘t ask people to speak Greek to put out fires or to understand deep and complicated philosophy, for example, to put out fires or to catch bad guys. 

So they have to be relevant tests, and they have to be aimed at screening out people who aren‘t qualified and finding people who are qualified, but not aimed at finding the smartest person who happens to know the most about whatever. 

Is that fair by your definition?  In other words, these shouldn‘t just be the jobs go to the people who get the best test scores.  They should go to the people who are qualified and the best qualified by a number of dimensions.  Do you accept that? 

TORRE:  That‘s correct.  I do.  But where people fail to understand how that applies to this case is in their failure to understand what kind of exams were given here.  There has been a lot of misinformation about these exams.  It was not solely a written exam.  There was a written job knowledge exam which tested for the job knowledge that you need, that‘s fire science, fire behavior, building construction, tactical protocols.

But the other half of the test did test for those intangibles.  There was a second phase in which candidates were rated by fire experts and they were rated for such things as leadership skills, their judgment skills, their ability to lead first responders in an emergency, how they would handle a variety of scenarios. 

This was a comprehensive examination that tested not just your knowledge of fire science but your leadership skills and your judgment skills.  So this test was right on the mark. 

FRANK RICCI, LEAD FIRE FIGHTER PLAINTIFF:  Chris.

MATTHEWS:  Well, let‘s come back and have.

(CROSSTALK)

MATTHEWS:  Please stay, both of you—I‘m sorry.  I‘ll let you finish your thought, Frank, go ahead. 

RICCI:  This test could be compared to the pilot‘s test or the bar exam, for that matter, where it has got multiple components to measure somebody‘s skills, ability, and knowledge. 

MATTHEWS:  OK.  Well, stay with us, both of you, Frank Ricci and Karen Torre, you stay with us.  When we return, we‘re going to get another viewpoint on this case.  We‘re being joined by the head of the NAACP Legal Defense Fund nationally. 

You‘re watching HARDBALL, only on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL.  We‘re back with firefighter Frank Ricci and his attorney, Karen Torre. 

We have a statement, by the way, from the city of New Haven.  It reads in part: “The city would have faced a lawsuit under Title VII brought by African-American and possibly Latino firefighters if the city simply promoted based on the results of this exam.  If it did not prevail in the lawsuit brought by minority firefighters, it would have been faced with the prospect of taking away badges from those who thought they were rightfully promoted or figuring out how to provide an opportunity to those wrongly denied a promotion.  Given that scenario, the often proposed solution of promote first and figure everything out later is no solution at all.” 

That‘s from the city of New Haven.  Let‘s bring in John Payton, who is the president and director of counsel at NAACP Legal Defense Fund, which has filed an amicus brief on behalf of the city of New Haven. 

Mr. Payton, thank you for joining us.  What is something—what are we missing here in this discussion so far? 

JOHN PAYTON, NAACP LEGAL DEFENSE FUND:  Well, let me give you something I think everyone would agree with.  If that test was discriminatory with respect to African-Americans, I think everyone would agree that we should set it aside, that none of the people who took that test actually ought to be able to benefit from whatever the scores were because if it‘s discriminatory, it should not be in play. 

And I think the real question here is, can an employer, in this case a public employer, New Haven, take steps to avoid discriminating against any of its firefighters?  And I think it should, and I think it actually has a responsibility to make sure that it‘s not discriminating. 

This was a flawed test, and it should be replaced with a test that is fair to every single one of the firefighters. 

MATTHEWS:  How do you determine or argue that a test is flawed or discriminatory by the results of the test, who passes, who fails, or by the questions asked in the test?  How would you decide how a test is flawed? 

PAYTON:  I think you look at all of those things.  You know.

MATTHEWS:  But they only looked at results in this case. 

PAYTON:  No, they actually looked at the test, too.  And they had concerns.

MATTHEWS:  When?  After they got the results. 

PAYTON:  Yes, but then they looked back at the test.  This test was used one time.  This is the one time it was used there.  So there is no track record.  And, you know, New Haven -- 30 percent of the New Haven firefighters, the 350 that you talked about, are in fact African-Americans or Hispanics. 

So New Haven has experience with minority firefighters.  Fifteen percent of the captains and lieutenants are African-American or Hispanic.  So New Haven has experience with people who have command positions, just as you heard. 

So they have a test, they give it, and none of the African-Americans would have been promoted.  And then they look at the test and see that some of the questions actually caused them some problems, and that‘s when they decide there‘s something wrong with this test. 

MATTHEWS:  Can you give me a substantive critique of the exam? 

PAYTON:  I can‘t, and—but the reason for that is that the test itself is under seal, and so none of us can actually go see that test. 

MATTHEWS:  Who—how did you get informed that some of the questions were discriminatory by their nature, not by their results? 

PAYTON:  Yes.  We have a few of the questions, I think three are discussed in the briefs.  Some were about things like, “what‘s uptown or downtown.” There is no uptown or downtown in New Haven. 

And then we have some other.

MATTHEWS:  Why would that advantage a white applicant? 

PAYTON:  It may not have advantaged anybody.  But it just shows that.

MATTHEWS:  Well, then it‘s not discriminatory. 

PAYTON:  Well, it just shows that the test may not be doing the work it‘s supposed to be doing.  What would the multiple choice test question be that would show you whether someone has command presence or not? 

This is a very sophisticated question.  Everyone who takes it has been a firefighter for three years.  The questions that you were talking about, do you know how to do this or that as a firefighter, everyone who takes it is a firefighter. 

The question is, who should be a captain or a lieutenant?  Who has command presence?  And that requires a very sophisticated set of questions and interviews, et cetera, and this test did not do the work it was supposed to do. 

MATTHEWS:  Was that in the oral part or the written part? 

PAYTON:  We believe it was the written part.  And a lot of other.

MATTHEWS:  With a multiple choice answer. 

PAYTON:  A lot of the other jurisdictions use the multiple choice part to a much lower degree than did New Haven.  They used it 60 percent.  Others used it 30 percent. 

MATTHEWS:  OK.  Let‘s be a priori this time instead of ex post facto, OK?  You‘re designing the test, sir.  Should we have multiple choice tests? 

PAYTON:  It should have a much lower presence in the overall... 

MATTHEWS:  Why is multiple choice by its nature discriminatory against African-Americans? 

PAYTON:  I don‘t think it‘s discriminatory, I think it‘s not.

(CROSSTALK)

MATTHEWS:  Well, then why did you just say a priori it should be a lower percentage of the judgment? 

PAYTON:  Because I think that the most important factor here is what you learn in the interviews, just what you were saying earlier, that you want to talk to someone.  You want to see what their experience is.  You want to see how they have command presence.  And I think you‘ve learned that by talking to someone. 

When you demote the significance of that, you let something that I think is less relevant come into play.  What was really flawed with this test, I don‘t think you or I or any of us on this can actually say because we haven‘t had the test to actually analyze it. 

There‘s an amicus brief in this case by a group of experts in tests who say that this is not the way you would go about doing this test or the weighting of this test if you wanted to actually measure for command presence. 

MATTHEWS:  Let‘s go back to Frank Ricci.  Your response to this, sir,

the arguments made by Mr. Payton is that there should be a lower percentage

of this exam that‘s in the multiple choice format and more in the oral

interview style.  What do you say to that?  You just—well, that wasn‘t -

you‘re not in charge of defining the test, so you just had to take it.  I don‘t know what your reaction is going to be. 

RICCI:  My reaction is the multiple choice partner of the test is critical.  You have to have a definitive understanding for fire behavior, building construction, experience is—may be the best teacher, but only a fool learns in that school alone.  You have to have a basis for that experience to make command decisions to keep firefighters safe. 

MATTHEWS:  Your response? 

PAYTON:  Look, I think everybody wants everyone who has—you know, who is a captain or lieutenant to be qualified and able to do it.  And everyone who takes this, let me just say it again, everyone who takes this test has been a firefighter for three years.  Every firefighter has an interest in this being a fair test to everyone. 

MATTHEWS:  I agree.  You know what, I agree with you in general terms.  I think the best lawyers do not come out of the—who do the best bar exams, I don‘t think they come out of the Ivy League schools.  There‘s a lot of moxie in life, right?

PAYTON:  Of course. 

MATTHEWS:  But we live in a world that has objective questions that you have to answer.  And there has to be a certain body of knowledge that you master before you use your moxie.  Do you accept that? 

PAYTON:  Of course.  But you know, when.

MATTHEWS:  That‘s what he just said. 

PAYTON:  When you were picking someone to be a colonel in the army, I guarantee you, you don‘t give them a multiple choice test and say, that‘s our colonel.  You actually look to see what they could do when they were leading men. 

MATTHEWS:  Right. 

PAYTON:  Who would follow them?  What‘s your command presence?  And that‘s how you pick leaders.  This was about who is going to be captains and lieutenants. 

MATTHEWS:  Fair enough.  Thank you for coming, Mr. Payton.  John Payton is general counsel—director of counsel at the NAACP Legal Fund.  And, Frank Ricci, sir, good luck in the next test and perhaps in the Supreme Court.  Karen Torre, thank you very much for coming in, Ms. Torre. 

And we‘ll be right back with, well, this fight.  We‘re going to talk about it, and the issue of affirmative action and when does it become a quota and when does it start the right way, perhaps end the bad way.  We‘ll be back with that.  This is a case of perhaps discrimination here.  We‘ll argue about it when we come back. 

This is a HARDBALL debate coming up.  You‘re watching it, only on

MSNBC. 

(COMMERCIAL BREAK)

(NEWSBREAK)

MATTHEWS:  Welcome back to HARDBALL. 

Well, the Ricci case forces us to look at the state of race relations in America, at least in this context of hiring and promotion.  How much progress have we made and has the need for legal protections for minorities changed particularly after the election of Barack Obama or not?  I think not.  Pat Buchanan is an MSNBC political analyst.  And Clarence Page is a columnist for The Chicago Tribune. 

This is the Bakke case all over again.  This fellow Frank Ricci seems like a good guy.  He took the test.  He has got learning disabilities.  He went outside, found a way to pass the test, scored well.  American hero, isn‘t getting the job because not enough minorities passed the test. 

Is this results-based justice rather than qualifications-based justice? 

CLARENCE PAGE, COLUMNIST, THE CHICAGO TRIBUNE:  Well, it is a lot like the Bakke case, but I think the real question here is, is the test fair?  What‘s the purpose of having tests, is fairness.  As long as people thought they were fair, it was fine.  But why are a lot of colleges and universities dropping the SAT and ACT now?  Because they can‘t rely on it to give them a diverse student population. 

So it‘s a similar situation.

MATTHEWS:  Well, wait a minute.  Well, is their ambition still to get the top students or to get a diverse student body?

PAGE:  Both, both.  But it‘s not just top students, Chris, or you and

I.

MATTHEWS:  My college dropped the SAT.

PAGE:  . wouldn‘t have gotten in.

(LAUGHTER)

MATTHEWS:  No, my college just dropped—Holy Cross just dropped the SAT as one of its requirements.  But I‘m not sure.  There‘s a lot of different reasons for doing that. 

Firefighting, Pat, should it be a written test? 

PAT BUCHANAN, MSNBC POLITICAL ANALYST:  Well, obviously written tests should be part of it, just like the lady indicated.  You have got to know fire science, what kind of building it is, how things burn.  These are things you‘ve got to study.  But the.

(CROSSTALK)

MATTHEWS:  If you‘re a fire official.  Let‘s remember, this is for officers... 

(CROSSTALK)

BUCHANAN:  Well, sure.  Well, sure, but you also need—there‘s a lot of other things you need to know, too.  Leadership and a lot of other skills, but—so obviously this intellectual component or the academic component is certainly part of the test. 

But I would agree with you, it‘s not the entire test.  The guy who is the smartest and knows the books the best is not necessarily the guy that can lead a department. 

MATTHEWS:  OK.  It doesn‘t sound like it‘s a smelly fire department in the sense that they‘ve had a history of rank discrimination.  They have got a good number of minority firefighters, a decent number of officials, 15 percent.  Although I think it‘s a more minority—there are more minorities in that city. 

PAGE:  Yes.

MATTHEWS:  So politically maybe there‘s pressure to increase the proportion even if it has been run fairly.  Maybe it‘s just sheer politics here.  Is that possible, Clarence, that what‘s going on here is a bunch of politically powerful people, like this reverend guy, that he has decided he can make some noise and get the door open for more of his constituents, fair enough, but it has nothing to do with the fairness or rigor of the test? 

PAGE:  Anything is possible, Chris.  To me the question is, how is the Supreme Court going to vote?  That‘s what it comes down to.  And let‘s face it.

MATTHEWS:  And what would you bet?  OK, let‘s move it ahead.

PAGE:  It‘s going to be down to Justice Kennedy. 

MATTHEWS:  Mr. Decider.

PAGE:  And he‘s a guy who, in the past, would indicate he would not vote in favor of affirmative action in this case.  However, he also likes to stand on precedent.  Sandra Day O‘Connor‘s opinion earlier in the University of Michigan case says we‘re going to need at least 20 more years of affirmative action. 

So I would put him on the fence.

(CROSSTALK)

MATTHEWS:  He‘s an unpredictable guy.  He voted the Lawrence case, Pat, in a way you might not have liked.  Kennedy, you never know where he‘s going to go. 

BUCHANAN:  I think it‘s going to go.  I agree with Clarence.  I think it‘s going to be five-four, with Scalia‘s side winning. 

MATTHEWS:  And the court will rule what?  They will rule that this case was fair?

BUCHANAN:  They will rule this guy, Frank Ricci, should be a lieutenant or a captain. 

MATTHEWS:  So will the remedy be that the city of New Haven has to act on that test and promote those firefighters? 

BUCHANAN:  I think that‘s going to be the ruling, because, Chris, look at the results here.  Why are we talking about the test?  For one reason—do you think New Haven really put together a bigoted test?  We are looking at the test because they don‘t like the results. 

They had all these white guys who won.  They won the competition, just like when you have the trial heats for the 100 or 200 meter dash, it turns out that they‘re all black guys.  Therefore, did they discriminate against white folks.  This is a dreadful thing, Chris.  What we‘ve got is Jim Crowe liberalism.

MATTHEWS:  Let me try another idea.  You‘re trying to pick the best basketball players and—

PAGE:  Chris, this is not Jim Crowe in reverse.  This is trying to get black firefighters and police officers after decades, centuries of discrimination.  We need to have—

MATTHEWS:  Now you‘ve gone there.  Now you‘re arguing results and you‘re arguing effectiveness. 

BUCHANAN:  He‘s saying maybe Frank Ricci shouldn‘t have the job because he‘s the wrong color, because blacks were discriminated 20 years ago.  What you‘re saying is new sins and crimes of discrimination are fine if they‘re done to undo old ones.  That‘s outrageous. 

PAGE:  I think you voted before Civil Rights act, did you Pat?

BUCHANAN:  No, I don‘t know if I did, but I may have.

(CROSS TALK)

BUCHANAN:  I don‘t think they let you write that editorial, Chris. 

(CROSS TALK)  

BUCHANAN:  I opposed open housing in ‘68, yes. 

MATTHEWS:  Let me tell you what I understood about civil rights law, which is the rule should be not who is the smartest guy, that reads every book in the world on chemistry.  It‘s not about who gets to be fire chief who read the most books.  It‘s a question of who has sufficient knowledge to be able to be a fire official, a high-ranking official, lieutenant or above. 

So it isn‘t who gets the highest score, who got enough of a score to justify consideration.  Do we agree with that?  That‘s a fair way to do it? 

(CROSS TALK)

BUCHANAN:  -- a scholarship for chemistry, you go all out with the best student who really knows his onions there.  But I agree with you.  This is different criteria.

MATTHEWS:  This is firefighting. 

BUCHANAN:  Firefighting, right. 

MATTHEWS:  If the Supreme Court rules against New Haven, you are going to see the end of the test.  They are going to throw it out, because the purpose of the test is fairness. 

BUCHANAN:  How do you judge fairness? 

PAGE:  That‘s what the court is being asked to do right now. 

BUCHANAN:  You‘re asking them to say it‘s not fair because we don‘t like the outcome. 

PAGE:  It‘s not my job.  It‘s the court‘s job to judge the fairness of the test.  The test has been thrown out before. 

MATTHEWS:  I wrote this before we went on tonight.  Is fairness a function of the results or is fairness a function of the questions asked?  What‘s your answer? 

PAGE:  It could be both. 

MATTHEWS:  Wait, then you know a test is a failure if the wrong people fail. 

PAGE:  I‘ve seen a lot of tests—

(CROSS TALK)

BUCHANAN:  There are tests—one question on a test long ago, it was about what do you do down at the Yacht Basin, had all these terms.  That‘s unfair to African-Americans, no doubt about it.  Just like if you use all this lingo from Harlem and you put it in the test, it is going to be unfair to white folks. 

PAGE:  Thank you for proving my point.  It can be unfair.

BUCHANAN:  I don‘t believe for a second the firefighters‘ test up there in New Haven, Connecticut was unfair.  Nobody thought this one was until the returns came in. 

MATTHEWS:  So why did the white guys do better? 

BUCHANAN:  I think because they studied harder and they know more, is why they did better.  That would be my guess.  What would be yours? 

MATTHEWS:  I think they did better in the test. 

PAGE:  I would be greatly relieved—

(CROSS TALK)

PAGE:  If it‘s really true that all the white firefighters studied really hard and the black firefighters went out and had a beer instead of studying, I would be relieved.  I don‘t think that‘s the case. 

BUCHANAN:  I think they may have studied harder.  They just didn‘t do as well.  I‘ve done tests.

(CROSS TALK)

MATTHEWS:  You know what, I‘d like to know why the court has sealed this test.  That‘s the kind of thing I‘m suspicious of.  This test should be on the front page of the New Haven newspaper.  We should all be able to read it, find out if we think it‘s fair. 

BUCHANAN:  Here is the thing, if city officials think it was an unfair test, show us the unfairness.  We can make a judgment whether the questions are biased this way or that way.  Why wouldn‘t they show it to us before they threw it out? 

They threw it out because they didn‘t like who won. 

MATTHEWS:  Right.

PAGE:  Yes. 

MATTHEWS:  Can I ask you a question about affirmative action? 

BUCHANAN:  Sure. 

MATTHEWS:  Is it fair for old rich people to get their kids in the ivy League Schools for the last 200 years automatically?  Was that fair? 

BUCHANAN:  Look—

MATTHEWS:  Was it fair? 

BUCHANAN:  Is it fair to George Bush—

MATTHEWS:  No, you won‘t answer my question.  Is it fair that old rich people got their kids in Ivy League schools without even lifting a finger for hundreds of years?  Is that fair?  That‘s affirmative action.  You have no problem with that? 

BUCHANAN:  I have no problem with that.  It‘s done.  I get guys into Gonzaga High School because I‘m a graduate.  My family is graduate.  So we got clout there.  That‘s right. 

MATTHEWS:  So you don‘t mind that? 

BUCHANAN:  They better—they got to pass the test though. 

MATTHEWS:  Oh.  You‘re hedging.  You‘re hedging.  You like old Wasps more than you do the new comer. 

OK, thank you, Pat.  You really will defend the old system that kept us out. 

BUCHANAN:  Chris, our party should defend the Frank Riccis and that‘s what the Republican party did well on when we stood up for those folks, who are white working class folks, who are the ones discriminated against most today. 

MATTHEWS:  Last word.

PAGE:  I think the public is a little more fair than that.  That‘s why the Republicans aren‘t getting much mileage on affirmative action. 

BUCHANAN:  Affirmative action has been defeated in California, Washington and Michigan. 

PAGE:  And so have Republicans. 

(CROSS TALK)

MATTHEWS:  The trouble is, Pat, you have to deal with 100 years of lousy literacy tests, which are nothing more than tricks to gyp black people out of voting.  Anyway, that‘s history we live with. 

I like this guy.  I think he‘s a good guy.  I‘m sure there are some good black guys that get screwed in this test too.  But we‘ll see.  Pat Buchanan, Clarence Page, I‘m going down the middle here. 

Up next, it‘s a Republican civil war.  One side of the party tries to recruit moderates.  The other side is chasing them away.  The latest attacks are on former Secretary of State Colin Powell.  By the way, he is going to be called a lefty any minute now by one of these characters. 

PAGE:  Oh yes.

MATTHEWS:  You‘re not going to do it, are you?

BUCHANAN:  He‘s a moderate. 

MATTHEWS:  OK, thank you.  Is that a bad word? 

BUCHANAN:  Yes. 

MATTHEWS:  OK, thanks.  What the Republican party needs to bring back. 

The politics fix is next.  You‘re watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  We‘re back in time for the politics fix, with “Newsweek‘s” Howard Fineman, from Pittsburgh, Pennsylvania.  He‘s our MSNBC political analyst.  And the Salon‘s Joan Walsh, who I denied a rematch with Pat Buchanan tonight.  I appreciate that.  You had some stand ins there.  Clarence was in there. 

Let me ask you, Larry King is a mainstream television show, not a hard-hitting political jamboree, like this place is.  Why would Arlen Specter bug out of doing a show last night on Larry King?  There‘s something up here.  The pressure on him must be mounting.  He may not have the quickness anymore to answer some of these questions.  He didn‘t do a good job with David Gregory on Sunday.  Is he still up to this? 

HOWARD FINEMAN, “NEWSWEEK”:  Chris, I think it has gotten more complicated faster than he expected that it would.  It‘s a more partisan atmosphere than it was years ago.  So paradoxically, when you switch sides, it‘s more treacherous. 

MATTHEWS:  Yes.

FINEMAN:  He didn‘t get the seniority positions that he says he was promised.  I could tell have told you, having been on the Hill Last week, talking to Democrats, he wasn‘t going to get them.  So I think he misunderstood that at the very beginning. 

MATTHEWS:  What was he offered? 

FINEMAN:  He wasn‘t offered much of anything.  The point is he chose to hear what Harry Reid said as probably more than it may have been. 

MATTHEWS:  Do you think Harry Reid really offered him only that you will the seniority of a senator, meaning you get to pick your office? 

FINEMAN:  I think Harry Reid was probably vague, and I think that‘s not a good sign for Senator Specter, that he might have been hearing what he wanted to hear.  Arlen Specter has always been the ultimate realist.  If he miscalculated, that‘s not a good sign. 

MATTHEWS:  Joan, he‘s made some odd comments.  He‘s still rooting for Norm Coleman out in Minnesota.  He said he forget what party he was in. 

JOAN WALSH, SALON.COM:  Just for a minute. 

MATTHEWS:  I don‘t know how you forget what party you‘re in, especially when you just changed parties.  He made a couple other comments.  He‘s entitled to seniority; nobody in the history of American civilization has ever claimed that.  He also said I‘m not a loyal Democrat, or I never said I was.  These protestations and strange comments do not sound like the work of a quick mind anymore.  And he has always been brilliant. 

WALSH:  He is brilliant and I don‘t understand it.  Howard is right. 

It seems as though he did not nail down exactly what he was being promised. 

He has a sense of entitlement.  Most of the people in the Senate do, Chris.  You know that.  But he didn‘t close the deal, as far as I can tell.  So now he‘s kind of wandering around lost, not quite sure which party he‘s in, not quite sure which committee he‘s heading too.  And it is very odd, unprofessional and kind of stumbling for such a senior person. 

MATTHEWS:  It‘s very hard to change sides politically.  Joan, let me go to Howard here again, because Pennsylvania has no real tradition of switching sides.  It‘s a state where you have two center-right, generally, and center-left parties.  Generally, they‘re not that far apart ideologically.  To me, that makes the uniform you wear all the more important, ironically, because obviously it‘s not a question of right wing versus left wing.  Uniforms wouldn‘t matter that much.  But uniforms mean a lot in Pennsylvania. 

FINEMAN:  Yes, they do.  As a Steelers fan, I can attest to that. 

MATTHEWS:  They do.  You know they do. 

FINEMAN:  The thing is—the other thing he‘s got to look at and may not have carefully examined enough is that the Democrats in Pennsylvania aren‘t necessarily going to accept him.  Just because he voted the way they liked on some things up here in Washington as a senator on the Republican side doesn‘t mean they will clasp him to their bosom as a member of their team. 

MATTHEWS:  Especially when he says I‘m not loyal.

FINEMAN:  Especially when he says hey, I hope Norm Coleman wins.  That doesn‘t help.

MATTHEWS:  He‘s going to come back and be brilliant one of these days, going to prove us all wrong.  I know he can‘t wait.  Perhaps he‘s playing possum right now.  Arlen, are you playing possum? 

We‘ll be right back.  Thank you, Howard Fineman, Joan Walsh.  Stay with us.  We‘ll be right back with these two geniuses to talk about the latest fight in politics, which is that old fight, affirmative action.  We‘ll be right back.

(COMMERCIAL BREAK)

MATTHEWS:  We‘re back with Howard Fineman and Joan Walsh for more of the politics fix.  I want to start with Joan on this one.  We all had a heated—well, it was a Donny/Brook with all the Irish the other night here.  And I always feel guilty about getting too crude and trying to understand a complicated case before I fully understand it.  That said, I‘ve been following this case today.  And I do think—I agree with Clarence.  I think the Supreme Court is going to rule in favor of those white, if you will, firefighters, who believe they were screwed after passing that test, because they didn‘t have the right ethnic or racial balance in the results.  Your thoughts. 

WALSH:  You know, that may be true, Chris.  I thought it was a great discussion today, because, first of all, I was glad to see some African-Americans in the mix.  You did a good job there.  And I also thought John Payton brought up some really smart points about look, New Haven is kind of unique in the fact that 60 percent of the test—the grade is about the written tests.  Other cities it‘s 30.  It‘s some cities it‘s as low as 10. 

There is an organizational consultants group that filed on behalf of the city an amicus brief to say, this is an eccentric test.  It‘s the first time you gave it.  What the city didn‘t do, Chris, is really explain why they think the test is unfair.  They gave it and they let men like Frank Ricci believe that if they did well, they would get their promotions.

So they managed to, I think, treat everyone unfairly.  The Supreme Court may well do what Clarence said.  I don‘t know. 

MATTHEWS:  But the oral part of the test included a lot—two thirds of the people administering were minority.  They were sensitive to the fact they wanted balance, Howard.  It wasn‘t a bunch of white guys getting together and saying, how can we screw together the minorities? 

FINEMAN:  No, I think they got the fuel mix wrong here.  Obviously the intent in any city is to have both quality and diversity. 

MATTHEWS:  And representation. 

FINEMAN:  Also, if you‘re going to lead people, the phrase command presence was used in your last segment a lot.  Command presence involves being able to deal with diversity, being diverse in your background and understanding.  It‘s a complicated mix.  So they want the knowledge, but they want the other. 

They got the test wrong.  They clearly got the test wrong, but that doesn‘t mean—

MATTHEWS:  It‘s a hot issue and it‘s not the end of this discussion, and we‘re going to get it right one of these days.  Howard Fineman, Joan Walsh, thank you. 

By the way, 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.

END   

Transcription Copyright 2009 CQ Transcriptions, LLC  ALL RIGHTS  RESERVED.

No license is granted to the user of this material other than for research.

User may not reproduce or redistribute the material except for user‘s

personal or internal use and, in such case, only one copy may be printed,

nor shall user use any material for commercial purposes or in any fashion

that may infringe upon MSNBC and CQ Transcriptions, LLC‘s copyright or

other proprietary rights or interests in the material. This is not a legal

transcript for purposes of litigation.>

Watch Hardball each weeknight at 5 & 7 p.m. ET

Discuss:

Discussion comments

,