updated 5/11/2009 2:25:38 PM ET 2009-05-11T18:25:38

Guest: Scott Wheeler, Todd Webster, Ron Christine, Jack Rice, Ezra Klein, Jim Downey, Frank Gaffney, David Rivkin, Al Sharpton, Lawrence O‘Donnell

(BEGIN VIDEOTAPE)

ED SCHULTZ, HOST:  I‘m Ed Schultz.  This is THE ED SHOW.

(END VIDEOTAPE)

LAWRENCE O‘DONNELL, HOST:  Good evening 

Live from 30 Rock in New York City, it‘s THE ED SHOW on MSNBC.

I‘m Lawrence O‘Donnell, in for Ed Schultz tonight.

Tearing down the conservative torture defense, why everything the right says to justify torture is wrong.

Preemptive strikes—the conservative campaign against President Obama‘s Supreme Court is already under way.

And it‘s easier to get 51 votes than 60, right?  Well, there are no shortcuts in the United States Senate, and that‘s why reconciliation might not be the answer for health care reform.  That‘s in the playbook later on.

Plus, the one word I think deserves Ed‘s term “Psycho Talk.”   That‘s coming up.

But first, tonight‘s “OpEd.”

Dick Cheney is pushing forward with his campaign to defend torture.  Here he is yesterday speaking to Scott Hennen on the Scott Hennen radio show in North Dakota.

(BEGIN AUDIO CLIP)

RICHARD CHENEY, FMR. VICE PRESIDENT OF THE UNITED STATES:  This whole question of detainees and interrogation of detainees and the terror surveillance program and so forth, closing Guantanamo, I don‘t think the vast majority of Americans support what he wants to do.  I think, in fact, most Americans are pleased when they think about it, that we were able to go nearly eight years without another major attack on the United States.  They think we handled it pretty well, that piece of it.

We were not a perfect administration.  There never is.  But I think what we did in the whole counter-terrorist area was extremely effective.

(END AUDIO CLIP)

O‘DONNELL:  The ends justify the means.  Eight years without an attack, therefore anything they did is justified. 

There is not one iota of evidence that torture worked.  Torture defenders like to use the library tower plot as an example.  They‘re out there peddling this ridiculous Jack Bauer story that the good people of Los Angeles were saved only by a renegade administration willing to waterboard Khalid Sheikh Mohammed, except that the plot was foiled a year before Khalid Sheikh Mohammed was captured, and the FBI is skeptical that there ever really was a plot.  But that‘s another story.

David Morris attended the U.S. military‘s SERE program, Survive, Evade, Resist and Escape.  This is where many of the Bush/Cheney techniques were tested on Marines like Morris to prepare them for possible torture situations.

Here‘s how Morris described it: “While I was in the school, I lived like an animal.  I was hooded, beaten, starved, stripped naked, and hosed down in the December air until I became hypothermic.”

“At one point, I couldn‘t speak because I was shivering so hard, thrown into a 3 x 3 foot cage with only a rusted coffee can to piss into.  I was told that the worst had yet to come.”  He sums it up by saying, “I was only incarcerated for a few days, but my mind quickly disintegrated.”

Now, does this sound like the way to get someone to disclose reliable information or does it sound like the way to get someone to tell you exactly what you want to hear?  But torture supporters are very worried about the Obama administration, at least that‘s what radio host Scott Hennen says.  He asked Dick Cheney, who left office with a 13 percent approval rating, for some kind of assurance. 

(BEGIN AUDIO CLIP)

SCOTT HENNEN, RADIO TALK SHOW HOST:  These are the kinds of things that I think worry people, that essentially you‘ve got an amateur hour going on at the White House. 

CHENEY:  For a while, there was this talk out there that we ought to cut these guys some slack and that they shouldn‘t be criticized in the early days of their administration.  I haven‘t obviously spent a lot of time operating according to that proposition.

(END AUDIO CLIP)

O‘DONNELL:  Again, that was Dick Cheney, former vice president for the United States, taking his case to a radio host that I‘ve never heard of. 

Amateur?  They‘re worried that the Obama White House is amateur?  Isn‘t the notion that a terrorist willing to die for his convictions would change his mind while being subjected to waterboarding?  Isn‘t that amateur? 

Isn‘t the claim that since we weren‘t attacked, torture must have kept us safe?  Isn‘t that amateur?  Isn‘t the circular logic that anyone who is in Gitmo must be a terrorist because he‘s in Gitmo?  Isn‘t that amateur? 

Joining me now is Frank Gaffney, the founder and president of the Center for Security Policy. 

Frank, these things sound like amateur notions to me that the vice president is throwing around and that right-wing radio is supporting. 

FRANK GAFFNEY, FOUNDER & PRESIDENT, CENTER FOR SECURITY POLICY:  Well, there‘s no accounting for taste, Larry, is all I can say.  I think that they sound like serious concerns that are being expressed by serious people who previously had serious responsibilities. 

In fact, some of the most serious this country has ever faced.  Namely, dealing with terrorists that were not just possibly going to attack us, but that had.  And that in the person of Khalid Sheikh Mohammed, for example, we know that the waterboarding did work.  It was one of very few instances in which it was applied, and it had the desired effect of distracting not just whatever he wanted us—he thought we wanted him to tell us, but actually important information that led to the interception of a variety of other terrorists. 

O‘DONNELL:  What?  The interception of what?  Frank, how can you say it worked, that it intercepted what?  And when you say very few times, was he the one who was waterboarded 83 times or was he waterboarded over 100 times?  Which one was he? 

GAFFNEY:  You know, I can‘t keep the numbers straight...

O‘DONNELL:  No, it‘s hard to keep them straight, isn‘t it?

GAFFNEY:  ... but he was one of very few people who was waterboarded.  And the point is that it was used selectively and it was used to good effect.

O‘DONNELL:  What did we get from him?

GAFFNEY:  As I understand it—unlike you, I guess I don‘t have firsthand knowledge of exactly what we got from him, but my understanding is what we got from him was information about individuals who were associated with actual plots that were under way at the time and that were...

O‘DONNELL:  What plots? 

GAFFNEY:  ... leading—if they...

O‘DONNELL:  What plots, Frank?

GAFFNEY:  I they had gone to fruition, would have resulted in the death of more American lives. 

O‘DONNELL:  What plots?  Do you know what plots, or are you just throwing this out there?  Because here‘s my position. 

GAFFNEY:  I‘m repeating, Larry, what...

O‘DONNELL:  ... I don‘t know what we got from him.  You seem to know what we got from him.  I don‘t know what we got from him.  As far as I know, we got nothing.

(CROSSTALK)

GAFFNEY:  No, no, to the contrary.  To the contrary.  You seem to know what we got from him, and I‘m saying... 

O‘DONNELL:  I don‘t know what we got from him.  I‘m asking you what we got from him.  And when you say plot, I‘m going to ask you, what plot? 

GAFFNEY:  And what I‘m going to tell you is, I have not been privy to the information that he disclosed.

O‘DONNELL:  Can you say the words “I don‘t know”?  Are you capable of saying “I don‘t know” when you don‘t know?

GAFFNEY:  I don‘t know because I don‘t have access to that information.

O‘DONNELL:  Because I‘m willing to say I don‘t know when I don‘t know. 

GAFFNEY:  OK.  What you don‘t know I think is at least as important as what I don‘t know. 

And here‘s the message that the American people need to hear from both of us, is we‘d rather err on the side of caution.  We would rather err on the protection of American people, not on the idea that we have some higher moral standard that results in them getting killed.  And I think that‘s what Dick Cheney stood for.

O‘DONNELL:  What about a practical standard, Frank?  What about a practical standard?

FBI experts and others involved say this does not work.  This will not extract the information that you need. 

What about the practical standard? 

GAFFNEY:  Well, obviously you can pick your expert witnesses.  There are others who have used it to good effect, and I think there‘s no question that...

O‘DONNELL:  What do you mean that used it good effect?  You just say they used it to good effect.  Can you tell me what good effect they‘ve ever used it for? 

GAFFNEY:  I believe that, as Dick Cheney has said, the good effect that they used it for was keeping some of the terrorists who would otherwise have been using devastating techniques against us from being able to do that.  That is the good effect. 

O‘DONNELL:  OK.  But Frank, there‘s no specificity here.  So are you and Cheney and the torture defenders simply going to go on with no specifics because you...

(CROSSTALK)

GAFFNEY:  Unlike you and me, Dick Cheney does actually have access to the information as to what information was gleaned and what the effect of it was.  I suggest you ask him instead of going off on some talk show radio show host who had the privilege of talking to him. 

I he will tell you that to continuously refer to me and everybody else...

O‘DONNELL:  Can you get Cheney to come on this show for me or Ed to talk to him?

GAFFNEY:  It‘s not my job, but I‘m sure if you approach him properly, and with proper respect...

O‘DONNELL:  I would love it.  I would love it.

GAFFNEY:  ... he would be happy to speak to you. 

But I will just say to you I think that you do a real disservice to this discussion, this debate, if that‘s what it is, by insisting on referring to people like me as torture supporters.  I don‘t think that‘s accurate.  I don‘t think that reflects my position. 

O‘DONNELL:  What‘s wrong with it?  You support the use of torture.  Cheney supports the use of torture.  Why wouldn‘t I call him a torture supporter?

GAFFNEY:  No, you say I do.  You say I do.  I don‘t believe that I‘ve given you reason to say that. 

O‘DONNELL:  Are you opposed to the use of torture? 

GAFFNEY:  I am opposed to the use of torture. 

O‘DONNELL:  But you think that Cheney‘s use of torture and advocacy of torture from the White House was a good idea that you defend? 

GAFFNEY:  No, I didn‘t say that.  What I would say is that I believe what they were doing was not torture, and that‘s what makes the distinction between what I‘m saying and what you‘re saying I‘m saying, and that‘s why I appreciate having the opportunity to clarify that.

O‘DONNELL:  So you think the description that we just got from a Marine who went through this was not torture, what he described was not torture?

GAFFNEY:  Well, I think it‘s pretty unpleasant, no question about it.  And that‘s why we subject those servicemen who are likely to be given that sort of treatment at best by our enemies to it, so that they know what they are in for.  But if it were torture, I don‘t think we would be subjecting them to that. 

O‘DONNELL:  All right.  My next guest believes that torture memos prove that we didn‘t torture.

David Rivkin is a former Justice Department official under George H. W.  Bush.  He‘s now co-chairman of the Center for Law and Counterterrorism at the Foundation for the Defense of Democracies.

You believe that these procedures that we described here are not torture. 

Is that correct?

DAVID RIVKIN, FOUNDATION FOR DEFENSE OF DEMOCRACIES:  Absolutely.  And the proof is in the pudding.

If you look at these memos that describe—by the way, out of the 10 techniques being described in the memo, nine have been used in the SERE program.  And with all due respect to Mr. Morris, one of the key pieces of evidence that the lawyers relied upon is the fact that there had been two congressional investigations into the SERE program long before 9/11, because Congress likes to investigate how the military treats its own people, be it (INAUDIBLE) Academy, training accidents or this type of training. 

Both congressional investigations gave it a green bill of health.  And over 40,000 Americans have gone through this program.  Lots of them, actually, were waterboarded.  Not all, but lots of them.  They have been followed up by psychiatrists...

(CROSSTALK)

O‘DONNELL:  David Rivkin, have you ever served in the military? 

RIVKIN:  No, I have not. 

O‘DONNELL:  So you, for one, have not come close to going through this program, right? 

RIVKIN:  And I would not—I would not like to.   But that‘s not the point. 

O‘DONNELL:  Let me—it is the point, because your point is it‘s not torture.  I‘m going to read to you what you‘re trying to tell America is not torture.  You tell me that you could go through this and not feel tortured. 

“While I was in the school, I lived like an animal.  I was hooded, beaten, starved, stripped naked, and hosed down in the December air until I became hypothermic.”

RIVKIN:  I heard this.

O‘DONNELL:  “At one point I couldn‘t speak because I was shivering so hard, thrown into a 3 by 3 foot cage with only a rusted coffee can to piss in.”

Have you ever lived like that?  How many days have you spent like that in your life? 

RIVKIN:  That is not the point.  The point is this—that we have done this to 40,000 Americans in the ‘70s, ‘80s, and ‘90s. 

You had follow-up by trained psychiatrists and psychologists, which I‘m not, who looked at it and said this...

O‘DONNELL:  We did it to prepare them for torture.

RIVKIN:  But wait a minute.

O‘DONNELL:  It was done to prepare them for torture.  That‘s why it was done.

RIVKIN:  Excuse me.  As a matter of law, it‘s not a question of—think about what you‘re saying.  You‘re basically saying we tortured 40,000 people of our own people, but that‘s OK because we...

(CROSSTALK)

O‘DONNELL:  I didn‘t say it‘s OK.  I don‘t think it‘s a good idea.  I don‘t think we‘ve developed useful information as a result of using that program.

RIVKIN:  No, no, no.  I‘m talking about SERE.

O‘DONNELL:  You‘re the one who thinks this is a great idea...

RIVKIN:  No.  You just said that SERE was torture. 

O‘DONNELL:  ... but would never submit yourself to it.

RIVKIN:  No, you just said that SERE was torture.  So on your logic, we tortured 40,000 people of our own people.  We‘re for (ph) Congress.  We‘re for pro-Obama military services, or SERE is not torture, in which case SERE is not torture not by these techniques, which, by the way, were quite a bit milder than we‘ve done to our own people. 

The bottom line is this—you throwing the word “torture” around as if (INAUDIBLE) torture.  Torture is defined very precisely—deliberate infliction of severe physical and mental pain and suffering. 

(CROSSTALK)

O‘DONNELL:  Did you not hear that description of severe pain and suffering, including mental suffering? 

RIVKIN:  That is a subjective view.

O‘DONNELL:  Pain is subjective. 

RIVKIN:  I can tell you—look, under your logic, everything is torture. 

Every bit of inconvenience. 

O‘DONNELL:  No, everything is not torture, David.  Not at all.  You‘re the defender of torture here.  You‘re the one who‘s saying, I could take this. 

You could take it, right?  How many days of this do you think you could take? 

RIVKIN:  My personal...

O‘DONNELL:  You wouldn‘t crack under this, right, because it‘s not tough at all?  This isn‘t torture, right?  You can take it. 

RIVKIN:  And by the way, on the question of, does it yield results?  Why don‘t you support what the vice president has called for? 

There are numerous classified memos, which are, by the way, referenced in those SERE memos.  There‘s a memo by the CIA inspector general that goes for 90 pages describing the intelligence that was contained.  Why don‘t we declassify those memos and then the American people will be able to see? 

O‘DONNELL:  David, that‘s our one point of agreement.  I want every one of those memos out. 

Up next, President Obama is breaking with old school Democratic interests on education.  We‘ll talk about that next. 

(COMMERCIAL BREAK)

O‘DONNELL:  Welcome back. 

An unlikely trio met with President Obama yesterday at the White House—

Mayor Michael Bloomberg, Newt Gingrich, and the Reverend Al Sharpton.  The White House said the meeting was about education reform, but what was really going on there? 

Joining me now is one of the men at that meeting, Reverend Al Sharpton, president of the National Action Network. 

Al, come on.  What was it really about? 

REV. AL  SHARPTON, PRESIDENT, NATIONAL ACTION NETWORK:  It was about education. 

O‘DONNELL:  Education reform? 

SHARPTON:  Absolutely. 

O‘DONNELL:  When did you become the education reform guy? 

SHARPTON:  Well, what I became is one that observed that around this country, education is not given equally to students in public schools.  And we‘re concerned about that.  And that‘s a civil rights issue.  I think quality education for all Americans is the civil rights issue of the 21st century, and I‘m a civil rights guy. 

O‘DONNELL:  There‘s a lot of political blowback here in New York City today about that meeting.  People suggesting that it functioned as a President Obama endorsement of Mike Bloomberg for mayor. 

Did you see it that way? 

SHARPTON:  Oh, not at all.  I think the president had invited two mayors.  He invited Antonio Villaraigosa, who couldn‘t make it because of intense union negotiations.

I think what he was trying to have is the mayors of the two largest cities in the country and two people that disagree on many—on most, if not everything, Newt Gingrich and myself, to talk about how we can build a consensus to deal with the crisis in education in this country. 

O‘DONNELL:  Now, what steps do you think the president is willing to take in Gingrich‘s direction?  For example, on school vouchers, which exists as a pilot program in Washington, D.C., where successive Democratic mayors have asked for it and black children have wildly over subscribed to the voucher program, can‘t fill enough of those voucher seats. 

Is that something President Obama would be interested in compromising on? 

SHARPTON:  Well, he extended it yesterday, I think, because he said these people were already in place.  He‘s still against vouchers, as I am. 

I think what he‘s willing to do is listen and come up with the best formula.  I don‘t think that we‘re going to see a radical shift either way.  But I think you have a president that is uniquely gifted in bringing different sides together, saying, wait a minute, this doesn‘t work.  I‘m willing to take on my party, but I‘m willing to take on your party, because in the middle of this, we have kids that are not graduating. 

Fifty-two percent of African-American children are not getting a high school diploma.  That‘s a crisis.  And I think the president did the right thing bringing people in to talk about it.

O‘DONNELL:  The Democratic Party has been promising to improve the public education system for 40 years.  They‘re promising to do it five years from now, 10 years from now, for 40 years. 

SHARPTON:  That‘s right.

O‘DONNELL:  There has been, as far as you can tell, no improvement during all those years of promises, right? 

SHARPTON:  That‘s exactly right.

O‘DONNELL:  We have in Washington, D.C., a pilot program on vouchers where you have poor children, black children, overwhelmingly, saying, I want to get out of this public school that Al Sharpton is a dying public school.  I want to get out of it and I want to go to this private school where I can get a better education. 

Thousands of them want to do it.  Al Sharpton says to them, no, I don‘t want to let you do that. 

Why?

SHARPTON:  No.  Al Sharpton is saying that the responsibility of government is to educate all children.  And while those thousands go out and a few hundred get in, what happens to the tens of thousands still left in those public schools?

And I think we ought to concentrate on who we save the whole rather than say let‘s save those that can escape.  Why are we trying to work out an escape and ignore that the overwhelming majority will still be left in those schools? 

Why don‘t we have the nerve, the courage, as the president is showing, to try and save the whole quality teachers, performance incentives, and things that are out of the box?  Because ultimately, if we did vouchers, we‘re saving how many students and leaving millions still left in the public school system? 

O‘DONNELL:  Well, but you‘re saying that this school doesn‘t function, that school doesn‘t function.  And in many situations, there is a school in that neighborhood run by religious orders or run in a private system that does work, and you‘re saying, I don‘t want those kids leaving the dying public system to go to that. 

We don‘t look at public housing that way.  We don‘t say everybody stay in the housing projects until we improve all of the housing projects.  You know people want to get out of housing projects.  You don‘t say stay there.

SHARPTON:  I think what we do is you take the systems that may be working and you put it into public schools.  And until now, we have not had a president and a secretary of education that has had the courage to say that. 

O‘DONNELL:  How many more decades do you want to give the Democratic Party to fail at this promise? 

SHARPTON:  I don‘t think it will be many decades.  I think it will be a lot shorter that trying to, in some kind of incremental way, let people escape.  And one day, by and by, when the morning comes, we‘ve educated every American by having those that escape reeducated, and leaving 98 percent of those kids in dying schools. 

Let‘s save the schools.

O‘DONNELL:  Thanks, Al Sharpton, straight from the White House. 

Up next, the reason I believe all the talk about socialism is, as Ed would say, “Psycho Talk.”  

(COMMERCIAL BREAK)

O‘DONNELL:  In tonight‘s “Psycho Talk,” we take on a word.  That word is “socialism.”

There goes Bachmann, linking socialism to an endless Democratic Party conspiracy.  But Boehner, (INAUDIBLE) and Bachmann are by no means the only people who like to talk about President Obama dragging the country into socialism. 

The fear mongering is widespread. 

(BEGIN VIDEO CLIP)

REP. JOHN BOEHNER ®, MINORITY LEADER:  Well, the stimulus, the omnibus, the budget, it‘s all one big down payment on a new American socialist experiment. 

UNIDENTIFIED MALE:  It‘s probably the next major step towards socialism. 

REP. MICHELE BACHMANN ®, MINNESOTA:  If you look at FDR, LBJ, and Barack Obama, this is really the final leap, I think, towards socialism. 

GLENN BECK, FOX NEWS:  Hey, has anybody noticed this crazy thing that we‘re on the road to socialism?  I‘m just saying. 

NEWT GINGRICH, FMR. HOUSE SPEAKER:  The boldest effort to create a European socialist model we have seen. 

RON PAUL, FMR. PRESIDENTIAL CANDIDATE:  I can‘t agree with socialism. 

UNIDENTIFIED MALE:  I‘m not a socialist. 

SEAN HANNITY, FOX NEWS:  It‘s day 101.  Now America‘s moving from a free market economy to a socialist economy. 

UNIDENTIFIED MALE:  How do you quantify whether or not your country is socialist? 

PAT ROBERTSON, TELEVANGELIST:  For long we‘ll have this gigantic socialist colossus.

BECK:  We are really, truly stepping beyond socialism and we‘re starting to look at fachism. 

(END VIDEO CLIP)

O‘DONNELL:  That right-wing talk may actually be catching on.  Pollsters regularly ask for the word they‘d use to describe a candidate or president.

Back in September of 2008, just six percent used the word “socialist” to describe Barack Obama.  In April of 2009 it jumped to 20. 

Here‘s my message to all of these right-wing conspiracy theorists: If you think socialism is bad, then you‘re against Medicare, you‘re against Social Security.  Tell your mother and father to stop taking those Social Security checks. 

I‘ll take Michele Bachmann seriously the day she introduces a bill to repeal Social Security and Medicare, but then I won‘t have to take her seriously because voters will run her out of office.  And that‘s something she and every other socialism-loving Republican in Congress knows. 

(COMMERCIAL BREAK)

LAWRENCE O‘DONNELL, GUEST HOST:  Welcome back to THE ED SHOW.  I‘m Lawrence O‘Donnell. Sitting in for Ed tonight. 

The right-wing attack on President Obama‘s yet unnamed nominee to the United States Supreme Court is already under way.  It didn‘t start last week when David Souter sent his resignation letter to the president.  It actually started 12 years ago. 

A little history.  In 1997, at the urging of Senator Patrick Moynihan, President Clinton nominated federal judge, Sonia Sotomayor, to move up from the trial court to the court of appeals.  Then Senate Republicans put a hold on her nomination for a year because they feared allowing the promotion would make her an inevitable and politically unstoppable candidate the next time a Democratic president had to nominate the Supreme Court justice. 

This is that next time.  And Sonia Sotomayor is at the top of everyone‘s short list for the job.  How did she get there?  Well, that‘s a history lesson of bipartisan cooperation at its best.  When Senator Moynihan was elected in 1976, he controlled all of the federal judicial appointments in New York state. 

Technically, federal judges are nominated by the president but the reality is, that presidents take the recommendation of the senators in their party. 

With Jimmy Carter in the White House, Senator Moynihan offered a power sharing deal to the Republican senator from New York.  The Republicans would get to choose one federal judge for every three that Moynihan picked. 

Four years later when the White House went Republican, the deal held.  And for the next 12 years, Moynihan was the only Democratic senator who was choosing federal judges.  It was under the terms of that deal that Pat Moynihan chose Sonia Sotomayor to be the first Hispanic federal judge in New York state. 

The first President Bush sent her name to the Senate where she was quietly confirmed without controversy in the heat of an election year on August 11th, 1992. 

Those were the good old days of judicial confirmations.  If President Obama sends the same name to the Senate that President Bush sent in 1992, Sonia Sotomayor‘s nomination will be instantly attacked by a team of Republican operatives who are building their war machine right now. 

One of them is Scott Wheeler, executive directly for the National Republican Trust Political Action Committee and he joins me now. 

Scott Wheeler, if Sonia Sotomayor‘s name goes to the Senate, what will your position be? 

SCOTT WHEELER, NATIONAL REPUBLICAN TRUST PAC:  Well, I think Sotomayor has herself—put herself in a category that suggest she‘s exactly the wrong nominee and that is that she believes that you make law from the bench.  She said so in an impromptu videotape that surfaced on the Web. 

And I think. 

O‘DONNELL:  Do you want to quote what she said or you just want to summarize it that way? 

WHEELER:  Well, I think that‘s—do you disagree? 

O‘DONNELL:  No.  I do.  What she said was that the Appeals Court sometimes makes policy, and that is absolutely true.  Trial courts are not allowed to make any sort of judicial policies.  They can only use the rules as they are written by the Appeals Courts. 

It is—if making policy is exactly what Appeals Courts are designed to do.  They make trial policy, they make judicial policy. 

WHEELER:  Then why did she say she wasn‘t supposed to say that on the same video? 

O‘DONNELL:  She did not say she wasn‘t supposed to say that. 

WHEELER:  She said, “I know we‘re not supposed to talk about that.”  That‘s almost a verbatim quote.  Said, “I know we‘re not supposed to talk about this.”  But—and so aren‘t you guys the ones for transparency? 

O‘DONNELL:  What she meant was—what she meant was there are wild attack machines out there like yours that will try to pick a pack. 

(CROSSTALK)

WHEELER:  What do you mean?  You say wild attack machines. 

O‘DONNELL:  That you will distort. 

WHEELER:  Who will attach wildly and without fact? 

O‘DONNELL:  You will distort—as you‘ve already tried to do here, you will distort anything. 

WHEELER:  I quoted what the woman said. 

O‘DONNELL:  Any judge—any judge says, or anyone says who then maybe. 

WHEELER:  Well, if quoting what she said is a distortion then we‘ve got a real problem here. 

O‘DONNELL:  You did not quote what she said.  You did not quote what she said.  You did not. 

WHEELER:  Quoted—I.—you said paraphrase and I said, do you disagree?  And you said, well, what she meant to say.  I think my quote was much closer to what she actually what said and if it wasn‘t the case, then why did she immediately say, I know we‘re not supposed to talk about this? 

O‘DONNELL:  How else are you going to attack her if she‘s the nominee? 

WHEELER:  Well, how do you get transparency about this? 

O‘DONNELL:  How else are you going to attack her if she‘s the nominee besides that quote? 

WHEELER:  That‘s not enough?  The fact that she thinks she‘s an appointed lawmaker?  We have a branch that makes laws?  It‘s all the Congress. 

O‘DONNELL:  She didn‘t say she‘s an appointed lawmaker.  It‘s not going to work.  I‘ve got to tell you, you‘ve got to come up with something better.  This is someone. 

WHEELER:  Better than her own words?  That‘s going to be tough. 

O‘DONNELL:  She got 67 votes in her last confirmation.  Orrin Hatch voted for her along with six other Republicans who voted for her in her last confirmation who are still in the Senate.  What are you going to say to them to change their votes? 

WHEELER:  Let‘s hope the Republicans in the Senate go up the yellow brick road and ask the wizard for some courage and actually play that tape and see if they can explain that to their constituencies at home and explain why they would vote for such a nominee. 

O‘DONNELL:  And what will you—if she does get Republican votes in the Senate of if the Obama nominee gets Republican votes in the Senate, will you go after those Republicans and try to take them out in primary elections? 

WHEELER:  I think we‘re going to do a lot to make sure there—the people in their home state know that they voted for this nominee. 

O‘DONNELL:  Is it conceivable to you that Obama could pick a nominee that you would not attack? 

WHEELER:  Sure.  Hey, I know that he‘s not going to do what Republicans often do and nominate some from the opposite belief of him.  But, what if he just nominates someone like Mario Cuomo?  That would be an excellent example of someone who could pass the Senate confirmation and probably not have any trouble with Republicans. 

But what I think most people in America, and I speak for Americans, not Republicans, I think. 

O‘DONNELL:  Scott, is there anyone under 70 years old who Obama could chose who you would not oppose? 

WHEELER:  I‘m sure there‘s a long list of them.  But the fact of the—all they—the standard is so basic, just interpret the law.  Don‘t make the law.  Interpret it.  That‘s not tough.  It‘s not difficult. 

O‘DONNELL:  Well, interpret the law is exactly what Appeals Courts do and interpreting the law they change the law.  That is pre-constitutionally exactly what they were designed to do.  And whenever they change laws through interpretation, you people will always call that legislation. 

WHEELER:  Change the law? 

O‘DONNELL:  Yes. 

WHEELER:  No, I think that‘s—no, the law has changed in the legislative branch. 

O‘DONNELL:  What they end up changing is judicial procedures. 

WHEELER:  And what we end up with. 

O‘DONNELL:  They change legal procedures. 

WHEELER:  And Lawrence, what we end up with is these Supreme Court justices looking at Spanish courts and European courts and say, well, this is how they do it over there.  That‘s we‘re down the slippery slope where you go and have justices interpreting the law rather than or try and change the law rather than interpret the law. 

What was the intent of the founding fathers?  And that‘s where we have gotten to where we are with all kinds of bad law, bad precedence.  And that‘s the last thing we need at this point. 

O‘DONNELL:  Is Sotomayor the one that you fear the most because she is so politically powerful going in there as a woman and a Hispanic and has a tremendous amount of appeal across the board? 

(CROSSTALK)

WHEELER:  Let me ask you this.  What does her race and her gender have to do with anything? 

O‘DONNELL:  It has to do with politics. 

WHEELER:  Why do you guys continue to make that up an issue? 

O‘DONNELL:  It has to do with politics. 

WHEELER:  I thought we were beyond that. 

O‘DONNELL:  It has to do with politics as you know.  There is a political element to that. 

(CROSSTALK)

O‘DONNELL:  It is not uncommon in American politics to try to—when Eisenhower chose Brennan, the reason he chose Brennan was he wanted an Irish Catholic from New Jersey for political reasons.  This is not a new thing in our politics. 

And isn‘t it true that you guys see Sotomayor as potentially the most—the strongest candidate going into this confirmation process in political terms? 

WHEELER:  I have no audio. 

O‘DONNELL:  Oh you can‘t hear me, Scott?  All right, then, we‘re going to bring in our panel, then.  We‘re going to have to go—Scott Wheeler, sorry, we lost your audio. 

Joining us now in our panel, Democratic strategist, Todd Webster, radio talk show host and former prosecutor, Jack Rice, and Republican strategist and former special assistant to the Bush—to President Bush, Ron Christie. 

Ron Christie, how does this confirmation look to you?  Does it look like the Republicans are going to be able to stop an Obama nominee or does the overwhelming Democratic majority in the Senate look like Obama can do whatever he wants? 

RON CHRISTIE, REPUBLICAN STRATEGIST:  Well, I think given the numbers in the Senate right now, Lawrence, I think that the Democrats are in a very strong position that whomever President Obama nominates, that that candidate, more than likely, will make it through the confirmation process. 

At the same time, I think Republicans, Democrats, all Americans are looking for the president to chose a wise jurist, someone to interpret the constitution and not seek to legislate from the bench.  And I think that the speculation game is interesting right now, but let‘s just wait for the president to put forth his nominee and we can assess his or her qualifications as the candidates announced. 

O‘DONNELL:  Todd Webster, what are the real politics in this?  Obviously, he‘s under political pressure to choose a woman and there has not been a Hispanic on the court.  And so there‘s a pressure there.  What—how will Obama process all of that? 

TODD WEBSTER, DEMOCRATIC STRATEGIST:  Well, there‘s no question that there is pressure to appoint a woman.  As Ron said, there are fine months to figure this out.  What‘s interesting, though, is you‘ve got groups, activist groups on the right wing, activist groups on the left wing and the progressive side, who are going to spend the next five months raising money in giddying up and girding for battle. 

On the progressive side, you know, we do control 60 percent of the House seats, 60 percent of the Senate seats.  President Obama got 68 percent electoral votes so we‘re in a much stronger position. 

I think for the conservative activist group, they are seeing Republicans leaving the party in droves.  They are seeing that they‘ve got no stroke on Capitol Hill and they don‘t have much to rally around.  They don‘t have a message right now.  They don‘t have any national messenger.  So this will be rallying point for conservatives to try to win something and do it by possibly derailing a Supreme Court nominee. 

O‘DONNELL:  Jack Rice, what do you think is more important going into this nomination?  The big majority that the Democrats have in the Senator or Obama‘s popularity out there with the electorate? 

JACK RICE, RADIO TALK SHOW HOST:  I think they‘re both actually very useful.  The only real question is whether Obama is going to step up and do what he should.  You know, you talked about Sotomayor, the first question we have to have is how competent is she.  And she‘s very, very competent. 

She has a great personal story.  So all of those stories are already there.  It‘s a false dichotomy to say, do you have to pick a minority?  Do you have to pick a woman?  Or do you pick somebody competent?  She‘s incredibly competent.  And you‘re right, there has never been a Hispanic on the court before.  There is only one woman. 

And so you could have find somebody competent.  I want to see this court reflect what America looks like.  I want people to be able to look at the court and say, that‘s what we expect.  They look like us, they‘re all good, they‘re all smart, they‘re all competent.  But they should look like us. 

We should at least have one Hispanic on the court.  Come on, just one? 

That‘s ridiculous.  In the history of the United States?  Really?  One? 

None.  This would be the first. 

O‘DONNELL:  Ron Christie, how do the Republicans read the politics of this?  For example, what would be the political price of opposing the first Hispanic nominee to the Supreme Court? 

CHRISTIE:  Well, again, we‘re only speculating that it will be Judge Sotomayor and that‘s assuming. 

O‘DONNELL:  Or some other possible. 

(CROSSTALK)

O‘DONNELL:  Go ahead. 

CHRISTIE:  Well, again, one of the things that I don‘t want to do is get involved in racial politics here.  I think the president has a very unique opportunity.  One of the most important things a president can do is to nominate a justice to be an associate justice of the Supreme Court. 

Let‘s find the best candidate qualified.  I think racial and gender considerations are something to look at.  But I want someone who is smart, competent, who can interpret the constitution, and that‘s where Republicans are girding up to look for. 

Did the president put forth a nominee who is competent, who can interpret the constitution and best represent the United States Supreme Court?  That‘s what we need to gird for.  These other issues are somewhat of a side show and I think it‘s a disservice to the American people. 

O‘DONNELL:  Todd Webster, do the Republicans have to be afraid of overkill and just reflexively going after anyone that Obama nominates? 

WEBSTER:  Well, yes, but Ed, as you read about in the “Washington Post” this morning, that‘s exactly what they‘re doing.  They‘re putting together dossiers and massive fundraising plans to oppose whoever it is.  Again, for the politics of it. 

But this is an extremely important nomination.  This is the most important thing—one of the most important things a president can do.  Of the three branches of government, a Supreme Court nominee and the Supreme Court is the only branch that does not have to come before the voters.  It‘s a lifetime appointment.  It could be, you know, 20, 30, 40 years on the court interpreting the constitution, interpreting law. 

So it‘s an extremely important appointment that the president will have to make and the nominees assuredly will be well vetted.  The president has gotten good marks for filling out his Cabinet and the Cabinet appointments.  And I think the American people have every confidence that he‘ll do the same in selecting competent Supreme Court nominee. 

O‘DONNELL:  Jack Rice, how do you prepare someone for a confirmation hearing like this, where obviously every word they‘ve ever said into a microphone or even privately is going to be dragged in front of them and they‘re going to have to analyze? 

RICE:  I‘ll tell you what, they better vet it better than they did some of their Cabinet.  Come on.  Look at some of the mistakes that we made and I‘m hoping they learned something there.  Because they do have to go back.  They‘re going to go all the way back to law school and everything that they ever did since. 

And this is a big deal because when you‘re on the bench for a long time, you have a real record here and they are going to dig through everything and people are going to pull everything they can out of context and try to scare the hell out of America, and that‘s what you‘ll see. 

And so my guess is they‘re going to have to prepare for that and have an answer ready when it happens because the right is already prepared.  They‘ve already decided.  They‘re going to stop anything that they can but there is a fear, though, I think.  And they should have this fear that they have become the party of no.  I mean they really have felt like that over the last six to eight months, maybe longer. 

O‘DONNELL:  All right.  I want to thank Scott Wheeler for joining us. 

Sorry, we lost your audio, Scott. 

And panel, thanks for coming in tonight. 

Up next, if you think budget reconciliation will save health care reform, think again.  Why it might not work next in “The Playbook.” 

(COMMERCIAL BREAK)

O‘DONNELL:  The myth of 51 votes.  Why budget reconciliation might be an illusion when it comes to getting health care reform through the Senate.  The strategy, coming up in “The Playbook.” 

(COMMERCIAL BREAK)

O‘DONNELL:  Welcome back.  Time for “The Playbook.” 

Democrats want health care reform.  They have a Democratic White House and Democratic Congress and they want to rush health care through the Congress in a process called budget reconciliation.  A parliamentary procedure that allows Democrats to pass it with just 51 votes in the Senate instead of the 60 you‘d normally need to avoid a filibuster. 

But there‘s a catch.  If the Democrats use reconciliation to pass a health care bill, Republicans can raise several parliamentary obstacles that will require 60 votes to overcome. 

Bottom line, reconciliation is not a cure-all for passing universal health care. 

Joining me now is Ezra Klein, associate editor for the “American Prospect.” 

Ezra, as you know, there‘s been strategic talk all year about do they put this in a budget reconciliation process, which is parliamentary process that protects it, largely protects it in the Senate so that it only needs 51 votes instead of the fabled 60 that you need to avoid a filibuster. 

But within that budget reconciliation process, all items that are in the bill have to considered relevant and germane within a very strict definition that the parliamentarian enforces. 

What that means is Republicans are going to stand up and raise what they call a budget point of order against certain provisions, especially of the health care legislation, things involving, say, insurance reforms that have no impact on the federal budget.  Those things can be stripped out of the bill unless the Senate has at least 60 votes to override the rule and leave them in. 

And I hope I haven‘t made that too complicated for the audience so far.  But how do you see this playing out, Ezra, if they do try to put this in the budget reconciliation process especially with those budget point of orders hanging out there that could require 60 votes? 

EZRA KLEIN, AMERICAN PROSPECT:  Well, I think we‘ve got to be clear on what they are trying to do here.  The way they have reconciliation in the budget is that it kicks off if the Senate or the Congress does not pass a bill by October 15th

So first off, Democrats are not thinking about it as a preferable outcome. 

They don‘t want to do it.  It‘s a threat.  Now you‘re completely right.  What we say about the way that the Senate parliamentarian can take various pieces of the bill out if they‘re not germane, the spending is true. 

And so what you can have with that, as one Hill aide told me a while back, is you could give $30 million to a commission, say, to do evidence based medicine, and they would then spend that on, you know, the studies.  But because the commission is not itself a spending piece, they would take the word “commission” out of the sentence and you‘d just have $30 million floating in space. 

So you‘re completely right that if you go that route, you don‘t know what you come out with.  But the analogy people use is it‘s like deciding health care penalty kicks.  It‘s not preferable, but it‘s better than not having it decided.  And so you have a budget reconciliation as an attempt to create an outcome no one wants. 

Because what you normally have is you—as you know well from 1994, is an outcome where, on the one hand, Republicans would like to kill a bill.  On the other hand, Democrats would like to pass a bill.  And so you could have a situation in which in the Senate it‘s very easy to kill a bill.  So you went there. 

This creates an inability to kill the bill.  Nobody knows what you get.  It may not even be a good thing.  But at the end of the day, total obstruction becomes a lot less plausible because they‘re not sure—Republicans have no more knowledge of what you would come out of reconciliation with than Democrats do. 

And what you end up with might be very bad for them. 

O‘DONNELL:  But that point you just made, if something could come out that you don‘t like, that you don‘t want, what does the president then do if he‘s handed a bill that has come out of this tortured reconciliation process in the Senate with big blanks in it that don‘t include the insurance reforms he needs or some of the things he needs in order to make a coherent piece of legislation? 

KLEIN:  If that happened, then we should be clear that it‘s an if, presumably the Senate or the Congress have voted on it before it got to the president.  That it wouldn‘t work out the way. 

There‘s also talk, and I don‘t really buy this too much, that you could do one bill through reconciliation and then you would do another bill after that, restoring the bits that had been taken out. 

I think that if you go through reconciliation, you need so much Republican support that you can‘t go there. 

(CROSSTALK)

O‘DONNELL:  On the follow-up bill as you would then be under that 60 vote requirement. 

KLEIN:  Exactly.  So that‘s exactly the problem.  And Republicans would be furious at you.  But what you would probably see happen is that if you go to reconciliation and you can‘t get what you want, you do something different. 

What the White House believes, and they‘re very clear on this if you talk to them, they will have a bill of some sort.  They will not repeat Clinton‘s mistake of not having a fall back position.  Now it may be that you can‘t do comprehensive health care reform through reconciliation, but you can do a lot of things.  And so you may not reform the insurance market but you may create the public insured because that would be federal revenues. 

So there are a lot of ways to think about it as a negotiating tactic.  But I really think you need to thin of it as a negotiating tactic right now.  The whole point of reconciliation is to make it harder for Republicans to use a 60 vote limit to kill the bill.  The hope now is that. 

O‘DONNELL:  Ezra, we‘ve got to leave it there.  Thank you, Ezra Klein. 

KLEIN:  Thank you. 

O‘DONNELL:  Prom night in Washington, D.C.  The ritual of the White House Correspondence Dinner.  Up next, “Saturday Night Live‘s” political sketch writer Jim Downey on politics and comedy in the Obama age.  That‘s next on THE ED SHOW. 

(COMMERCIAL BREAK)

O‘DONNELL:  This weekend Washington has its red carpet.  It‘s Oscars if you will or prom depending on your take.  The White House Correspondence Dinner takes place this Saturday night.  You can see it live right here on MSNBC at 9:00 p.m. 

Joining me now is writer and senior statesman Jim Downey from “Saturday Night Live” who specializes in writing the political comedy for the show. 

Jim, this is the president‘s first shot as a stand-up comedian.  At this dinner, the president always does a comedic speech.  What advice do you have for him?  You‘ve been to a few of these things. 

JIM DOWNEY, “SATURDAY NIGHT LIVE” WRITER:  Well, I would say that a dead man works for any president who‘s willing to try it.  And I suspect that that‘s what they are going to do.  I—when he came to our show he turned up to be kind of a wise guy.  I think he‘s funnier than any of our recent presidents.  I think Lincoln was the last -- (INAUDIBLE) Kennedy, too, came in funny.  So I have high hopes for him. 

O‘DONNELL:  The room is ready for the president.  This is really primed audience right there, just the slightest funny thing they jump for it. 

DOWNEY:  It‘s the best audience you could have for that kind of material and the president brings with him so much straight line because of his office and gravitause that, you know, anyone who can read can be funny if you trust the people around him. 

O‘DONNELL:  Wanda Sykes is going to be the professional comedian who gets up and performs.  You‘ve written for some of the comedians who‘ve performed at this dinner.  It‘s tricky audience for them to work, isn‘t it? 

DOWNEY:  Well, I think the one thing that can get them in trouble is if they get partisan laughs or ideological laughs.  I mean, they like—the thing that works well for people there is kind of industry laughs, politics being the industry in question.  It‘s like doing a trade show, I think. 

O‘DONNELL:  All right.  There it is, advice from a professional on how to handle it, Wanda Sykes. 

That‘s all for tonight.  Ed will be back next Monday same time 6:00 p.m..  I‘m Lawrence O‘Donnell.  Thanks for watching.  “HARDBALL” with Chris Matthews starts right now. 

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