updated 5/27/2009 2:37:00 PM ET 2009-05-27T18:37:00

Guests: Pat Buchanan, Joan Walsh, David Axelrod, Chuck Schumer, Chris Cillizza, Roger Simon

CHRIS MATTHEWS, HOST:  Full-court press.

Let‘s play HARDBALL.

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

Bonanza.  President Obama didn‘t just announce his first Supreme Court nominee, he gave her the kind of send-off most presidential candidates don‘t get.  And for good reasons.  In the hyped-up world of Supreme Court fights, Sonia Sotomayor may have the right stuff for a whole five-ticket ride—top-drawer academic credentials, strong judicial experience, gender, ethnicity, and that magic word, empathy.

And talk about a send-off, the president and his ballyhoo boys put out word that the nominee had blown the president‘s mind, that she was so spectacular in a secret behind-closed-doors meeting last Thursday that he just had to put her up for the Court.

Then this morning, the president presented her in the White House East Room with more pizzazz than a network CEO rolling out his new fall line-up.  Barack Obama‘s first top Court nominee, he told us, has it all—Ivy League brains, tough girlhood in the South Bronx, who grew up reading Nancy Drew, who got inspired to be a judge by watching “Perry Mason.”  Want more?  She even saved baseball.  That last he added for Joe Six-pack appeal.

Here he is.

(BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES:  Sonia, what you‘ve shown in your life is that it doesn‘t matter where you come from, what you look like, or what challenges life throws your way, no dream is beyond reach in the United States of America.

(END VIDEO CLIP)

MATTHEWS:  Well, Judge Sotomayor herself spoke of how her real-life experiences helped inform her decisions on the bench.

(BEGIN VIDEO CLIP)

SONIA SOTOMAYOR, SUPREME COURT NOMINEE:  I strive never to forget the real-world consequences of my decisions on individuals, businesses, and government.

(END VIDEO CLIP)

MATTHEWS:  Well, President Obama not only made a historic pick today, but he seemed to dare the Republicans to fight this one at the risk of losing Hispanic voters, not to mention women.  We‘ll talk about the politics of this campaign-style roll-out and the political fight over the president‘s Supreme Court pick with White House senior adviser David Axelrod, Patrick Buchanan, and someone who might disagree with Pat, Salon‘s Joan Walsh.  In a moment, a top member of the Senate Judiciary Committee, the panel that will decide the judge‘s fate, Senator Chuck Schumer, is going to join us from New York.

But first, MSNBC political analyst Pat Buchanan and Salon‘s Joan Walsh.  It seems to me, Pat, that this president has chosen this nominee knowing it‘ll cause a fight with your crowd, and he wants this fight.  That‘s my hunch.

PAT BUCHANAN, MSNBC POLITICAL ANALYST:  I don‘t know that he wants the fight, but he‘s sure going to get it, Chris.  He won‘t get it immediately because she‘s got a terrific story and this is the day of the appointment, but this is a woman who said, basically, that the federal appellate court is where we make policy, who really denied Frank Ricci, who was that fireman who lost his dream because he happened to be a white male in a case that‘s going to be a classic in the Supreme Court—she dismissed it in a paragraph.  She says her sex—her gender, excuse me—and her ethnicity are going to influence her decision.  She will decide differently from a white male.

If the Republican Party stands for anything and conservatives stand for anything, it is for judges and Justices on the Supreme Court to decide on the basis of the Constitution, not on extraneous matters like this.

MATTHEWS:  So you‘re saying she‘s prejudicial, going to the bench.

BUCHANAN:  I‘m saying...

MATTHEWS:  On the side of minorities per se.

BUCHANAN:  I‘m saying that she herself says that her gender and her ethnicity will influence her decision, and I think that is a—that would be for me a disqualification for the Supreme Court.  She is also an affirmative action pick, Chris.  Clearly.  The president was down to four choices, all four of them women, and he picked the Hispanic.  You yourself said...

MATTHEWS:  As opposed to the selection of Judge Clarence Thomas.

BUCHANAN:  Well, Clarence Thomas, that was an aspect.  I opposed Harriet Miers...

MATTHEWS:  OK...

BUCHANAN:  ... who was picked because she was a woman...

MATTHEWS:  All right...

BUCHANAN:  ... and an evangelical.

MATTHEWS:  OK, let me go to Joan on this one.  Joan, what do you make of Pat‘s assertion that this nominee is prejudicial in her judgments already by stating she‘s pro-women—well, not pro-women, but she‘s pro—she says that she‘ll look at this thing differently because she‘s a Latina, an Hispanic woman, that she‘ll be a better judge because of that.  What do you make of that kind of talk?

JOAN WALSH, SALON.COM:  You know, I think that she said that she thought that her life experiences might make her a better judge.  You know, if you look at the entirety of her record, Chris, I think—I think Pat—if Pat‘s argument prevailed, I‘m sure the Obama White House is going to dance happily because it‘s ridiculous to call her Harriet Miers.  She is supremely qualified.

You can like her, you can dislike her, you can call her an activist or not.  We can debate that.  But the minute somebody like Pat starts denigrating her and saying she‘s solely an affirmative action pick—she‘s Phi Beta Kappa from Princeton and Yale.  She ran the “Yale Law Review.” And she has more judicial experience than anybody else, white men or anybody else, had when they went to the Supreme Court.

She is a supremely qualified pick.  We should have this debate on the merits of her past decisions.  We can disagree about them...

BUCHANAN:  I agree.

WALSH:  ... but to call her Harriet Miers is an insult.

MATTHEWS:  Wasn‘t she the top student at Princeton?  Didn‘t she win the (INAUDIBLE) award?

WALSH:  Yes, she was.

BUCHANAN:  Chris...

WALSH:  She won the top...

BUCHANAN:  I don‘t care about the award.

WALSH:  ... undergraduate academic honor.

BUCHANAN:  Let‘s take a look—let‘s take a look at what Jeff Rosen says in “The New Republic.”  He talked to all of these clerks.  They said she‘s a bully on the bench.

WALSH:  Anonymous...

BUCHANAN:  She was not...

WALSH:  Anonymous clerks.

WALSH:  ... that she is not that intelligent.  They are concerned that they don‘t want to pick her...

WALSH:  Outrageous.

BUCHANAN:  ... because they need someone who can stand up against Scalia and a liberal like Alexander Beckle (ph) or folks like that.  We‘re going to find out about her qualifications.  We‘re going to hear a lot more on it.  But as I say, all the—I mean, the very fact that she says, My gender and ethnicity are going to influence my decision, I will decide differently than a white male—what does that...

WALSH:  That‘s not really what she said.

BUCHANAN:  ... have to do with the Constitution of the United States?

WALSH:  That‘s not exactly what she said.  I‘m going to step out here and I‘m going to take the chance of agreeing with Pat slightly.  When I read that quote, it does include the word “better,” better choices, better decisions than a white man.  I‘m sure when she‘s being asked about that quote, and she will be, she might walk that back a little bit.

As a feminist, I think Justice Harry Blackmun ruled with empathy on the issue of abortion rights.  So certainly, white men can and frequently do do the right thing when it comes to race and gender.  But you know, this is...

BUCHANAN:  What do you think...

(CROSSTALK)

MATTHEWS:  Are we betting off having a balanced court with more women on it than we‘ve had?  I mean, we‘ve never had more than two, as far as I know.

WALSH:  Yes, of course.  Of course we are.

MATTHEWS:  But Pat...

WALSH:  How can we not be?

MATTHEWS:  ... don‘t you think we need about—I‘m not saying a 50/50 balance...

BUCHANAN:  No.

MATTHEWS:  ... or 405 or anything like it.

BUCHANAN:  Chris, I...

MATTHEWS:  But what was wrong with the idea of just a judge contributing to a more balanced Court by being a woman?  Isn‘t that a case she could make, the Court being more balanced...

BUCHANAN:  Well, look, I—I really...

MATTHEWS:  ... than otherwise?  Isn‘t that an argument for a Court that‘s a better Court?

BUCHANAN:  I think—look, there‘s no doubt if you have someone who is—if I had someone who is two people equally and superbly qualified for the Supreme Court, I would probably pick the one—it might be an Italian-American, or as Nixon did, a Southerner, someone who also helped you politically.  Nothing wrong with that.

But the key thing is, are they superbly qualified for the U.S. Supreme Court?  Do they judge on the basis of the Constitution?  After you get those things satisfied, Chris, I think you can go with any kind of consideration you want, but you got to get those.

I don‘t think she has thus far demonstrated she‘s going to go to that mark.  And I‘ll tell you, the Republican Party is going to divide over this thing up in the United States Senate.  They‘re not going to saying anything now, but before—when those hearings start, this is going to be a profoundly divisive issue.  I think you may be right.  Maybe Obama wants this fight.  But I think the Republican Party, if it stands for anything, has got to get in a fight...

MATTHEWS:  Pat, what did you make—excuse me.  What did you make of the fact that John McCain, who has a large Hispanic constituency out west and clearly intends to be a senator for life, quickly came out and congratulated the judge on her appointment today, on her nomination? 

Quickly, All he said was, I congratulate you on your nomination.  He didn‘t

he wasn‘t skeptical.  He seemed very positive about this.

BUCHANAN:  Well, look, I think there‘s nothing wrong with that.  She appears to be, today, a very nice person.  But I‘ll tell you, if John McCain came out and said, I‘m going to vote for her...

(CROSSTALK)

BUCHANAN:  Ninety-six—ninety-six senators voted for Ruth Bader Ginsburg, and that was a disgrace for the Republican Party to do that for the simple reason she was an ACLU ideological liberal, a judicial activist of the first order.  And if Republicans—if we stand for anything, we stand against that, Chris.  And if we can‘t stand and fight for that...

(CROSSTALK)

WALSH:  You know, I really—I...

MATTHEWS:  Are we judging—are we—I‘m sorry.  Are we judging qualifications?  Because clearly, she‘s qualified by any measure...

WALSH:  She‘s very qualified.

MATTHEWS:  ... in terms of experience.  Academically, she‘s at the top of the class at the best schools in the country...

WALSH:  Absolutely.

MATTHEWS:  ... especially Yale Law, which is the best law school, and Princeton.  You can‘t beat that.  And she was the top student graduating from Princeton, OK, the top student.  OK, so I don‘t think you can question her academic ability.

As for her philosophy, is that fair game, Joan?  Because I remember Chuck Schumer...

WALSH:  I think...

MATTHEWS:  ... he‘ll be on the show in a minute—once said, Let‘s stop nitpicking, looking for little things in the background of a judge we can knock him off or her off with, when we really disagree with their philosophy.  Isn‘t it fair game for Pat to disagree with her philosophy and urge her defeat on that ground?

WALSH:  Absolutely.  It‘s fair game for Pat to disagree, and it‘s fair game if Republicans ultimately decide that she is a judicial activist.  But you know, Chris, the interesting thing here is liberals are not jumping for joy on this one.  She got a very tepid kind of endorsement from NARAL because she had a controversial vote on the global gag rule that kept the federal government from giving money overseas to people who might advocate abortion.  She did not come down on the feminists‘ side on that one.

MATTHEWS:  Yes.

WALSH:  She has a very mixed record.  The ABA calls her a moderate and not a liberal.  So Pat—you know, Pat and I disagree a lot, but I think he‘s an intelligent man.  I think if he did more reading and didn‘t just resort to—OK...

(CROSSTALK)

WALSH:  ... affirmative action talking points...

BUCHANAN:  Let me tell you...

WALSH:  ... he might find that there‘s more he agrees with.

BUCHANAN:  All right...

WALSH:  Than he disagrees with.

BUCHANAN:  All right, Robert Bork and Sam Alito were fully qualified, eminently qualified intellectually by judicial temperament, and both were torn to pieces up there by liberal Democrats.  I hope our guys don‘t do that.  But Judge Alito was virtually—his wife was driven out of the hall in tears because Kennedy and Biden suggested he was a racist bigot, on and on, on national television.  We ought not to do that, but we ought to go for qualifications.  We ought to go for temperament.  We ought to go find out if Rosen is right, if this woman was a bully on the bench and she doesn‘t have the academic credentials...

(CROSSTALK)

WALSH:  That was one person.

MATTHEWS:  ... and his interviews off the record with—with...

WALSH:  That was terrible reporting.

(CROSSTALK)

BUCHANAN:  That‘s what we got to learn.  We have to learn...

(CROSSTALK)

WALSH:  It was terrible reporting.

BUCHANAN:  That‘s not conclusive, I agree.

WALSH:  There are plenty of clerks...

MATTHEWS:  Why would that be a secret—making Joan‘s point, why would a person who had that strong opinion of a Supreme Court nominee want to hide it?

BUCHANAN:  Because he wants to rise in the world!

(LAUGHTER)

MATTHEWS:  Well, I disagree with that.

(CROSSTALK)

MATTHEWS:  If you want to bring down a Supreme Court nominee, you ought to do it in the light of day.

WALSH:  Yes, come out and do it!

BUCHANAN:  She wasn‘t the nominee then.  Chris, people all over town are quoted anonymously so they won‘t be caught out...

MATTHEWS:  But that was particularly...

BUCHANAN:  ... giving their opinions to the press.

WALSH:  Can I just say...

MATTHEWS:  Well, why are you quoting an opinion...

WALSH:  Please let me say one more thing...

MATTHEWS:  ... if you don‘t know who it is?  This guy could be a jerk who said this.

WALSH:  Also...

BUCHANAN:  Because...

MATTHEWS:  Maybe this person has jealousy factors.

BUCHANAN:  I don‘t know.  Maybe...

(CROSSTALK)

MATTHEWS:  When these sneaky people go off—you ought to know this.  When people go off the record in this city, you know why they go off the record...

BUCHANAN:  Sure.

MATTHEWS:  ... because they‘re either secretly jealous of the other person or their a political rival of the person or they disagree with the person or they just don‘t like them.

BUCHANAN:  What‘s different is Jeff Rosen...

MATTHEWS:  Why would you trust...

(CROSSTALK)

BUCHANAN:  Jeff Rosen is a liberal and he‘s writing for “The New Republic.”

MATTHEWS:  Yes, but he‘s quoting people!

BUCHANAN:  He‘s writing for “The New Republic.”  If it were...

WALSH:  You know what?  Liberals...

BUCHANAN:  ... a conservative blog, I would agree with you, Chris.

WALSH:  ... get things wrong, too.

BUCHANAN:  This is...

WALSH:  Can I jump in here, Chris?

MATTHEWS:  Sure.  You‘re in.

WALSH:  Can I—thank you, Chris.  You know, Jeffrey Rosen—the worst thing about that article was not the anonymous sourcing, it was that Jeffrey actually admitted himself, I had not read enough of her decisions to have a strong opinion one way or another on her qualifications.  Then what the hell are you doing writing in “The New Republic” or anywhere, for that matter?

BUCHANAN:  Well, Joan...

WALSH:  It was a terrible article.  He‘s going to...

BUCHANAN:  Joan...

WALSH:  ... need to dial it back.  It will be...

BUCHANAN:  All right...

(CROSSTALK)

MATTHEWS:  I think he might want to dial it back.  OK, let‘s give the

guy a day or two to re-

BUCHANAN:  Right.

MATTHEWS:  ... to re-report that story.

WALSH:  Yes.

MATTHEWS:  Let‘s give Jeff Rosen a day or two to re-examine the facts and to get some on-the-record quotes.

BUCHANAN:  All right.  You can read her opinion...

(CROSSTALK)

MATTHEWS:  By the way, wasn‘t it Spiro Agnew that didn‘t like all these off-the-record quotes and sourcing in newspapers?

WALSH:  Many of us don‘t.

MATTHEWS:  Somewhere back in my mind, I‘m hearing back—I think you may have taken a different view of this.  Just guessing.

BUCHANAN:  No, but listen, you can read her opinion in the Ricci case in 10 seconds.

MATTHEWS:  I live—you‘ve got a paper trail longer than the phone book...

BUCHANAN:  She doesn‘t have...

WALSH:  She‘s had a lot of opinions.

(CROSSTALK)

BUCHANAN:  ... one paragraph on Frank Ricci.

MATTHEWS:  Thank you, Pat Buchanan.  This debate will continue through the summer.  Pat Buchanan, Joan Walsh, thank you both for your passions.

WALSH:  Thank you.

MATTHEWS:  Coming up: President Obama‘s announcement of Judge Sotomayor this morning was like a campaign kick-off.  We‘re going to hear more from the president‘s top guy.  By the way, David Axelrod is coming right here to talk about the looming confirmation crisis—well, at least hearings—you heard about here.

You‘re watching HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL.  Joining me right now is White House senior adviser David Axelrod.  I have a hunch about you folks at the White House that you pick your fights, and sometimes you pick your enemies.  You like that “RNC” of Rush, Newt and Cheney, obviously.

Did you expect this?  Here is Rush Limbaugh today, blasting away at your nominee for the Supreme Court, the president‘s nominee, Judge Sotomayor.

(BEGIN AUDIO CLIP)

RUSH LIMBAUGH, RADIO TALK SHOW HOST:  She ruled against the white firefighter, Ricci and other white firefighters, just on the basis that she thought women and minorities should be given a preference because of their skin color and because of the history of discrimination in the past.  The law was totally disregarded!

That‘s what I mean when I refer to her as a reverse racist.  Obama himself is one, the chip on his shoulder that he brings to office.  If people just listened to what he said over the course of his career, it‘s unmistakable.  I know the media‘s going to harp on this reverse racist stuff, and I just want all of you to know that I am perfectly willing to back it up, and I‘m proud that I said it.

(END AUDIO CLIP)

MATTHEWS:  Did you expect this to be the counter-fire to your nomination today of Judge Sotomayor, that Rush Limbaugh would jump up and down, making the charge of reverse discrimination?

DAVID AXELROD, SENIOR WHITE HOUSE ADVISER:  Well, you know, I don‘t know—I didn‘t think a whole lot about what Rush was going to say, and I don‘t know exactly what his legal expertise is.  But if he had it, what he would know is that she ruled in that case on the law.  In fact, the decision was rendered in keeping with the precedent of the 2nd circuit.  And in the brief opinion the panel ruled—the panel said they had felt solicitude for the firefighters, but they were bound by the precedent in the circuit.

So you know, you can‘t have it both ways.  You can‘t say, I don‘t want judicial activists, and then when someone rules on the basis of legal precedent, you say they‘re legislating from the bench.

MATTHEWS:  Let me ask you about this decision.  It was quite dramatic, the way the White House put out word today that the president had his mind blown, basically, by that experience of a long interview with the nominee last Thursday.  Can you give us a little tick-tock on that?

AXELROD:  Well, you know, the president has been thinking about this for weeks.  There‘s been an exhaustive process here of gathering materials for him to read and study, and it ultimately culminated in a series of interviews this week.

He had a set of principles, Chris, that he was concerned about.  One is he wanted someone who had clear legal excellence and broad experience.  She certainly met that test.  She‘s got more experience on the federal bench than anybody who‘s been appointed in 100 years.  She‘s been a big city prosecutor, a commercial litigator, a trial court judge.

He wanted someone whose philosophy of judging was his, that you have to be faithful to the law, rule in terms of constitutional principles, but be ready to adapt them to a modern context.

And third, he wanted someone who brought a real-life experience to the court that would help animate those discussions and give people a sense about how the law impacts on real people.  And her story, of course, is a magnificent story, from the housing projects of the South Bronx, raised by a single mother, to, you know, her stellar years at Princeton and Yale and excelling at every level.  She really is a great American success story.

So all of that appealed to him.  And then finally, last night, after giving it a lot of thought, he was in his study at 8:00 o‘clock at night, and he made the decision.  He picked up the phone and called her, called the others he had spoken to.  And I think he‘s very, very happy with his decision.

MATTHEWS:  You know, she reminds me of him.  And I wonder if that‘s what‘s going on here, to come from where she came from.  She came from much worse circumstances than I think the president did, in terms of, everybody figures the South Bronx is pretty tough for anybody, the mother, the way she brought her up, the fact that the father didn‘t speak English, the fact that she became number one, she won the Pyne award at—at Princeton as the number-one student in the graduating class, that she went to the top law school, which is even a better law school than Harvard, believe it or not, at that level. 

Did that—is she his surrogate, in a sense?  In other words, I‘m—

I don‘t want to push too hard here, but does he see her as him, if he were going to be on the court? 

AXELROD:  Well, I don‘t...

(CROSSTALK)

MATTHEWS:  Would he pick her as the best substitute for Barack Obama he could find? 

AXELROD:  I don‘t know that he viewed it in those terms, Chris, but I think he—he knew that she would bring a voice to that court, a perspective to that court that wasn‘t there today, a perspective that many Americans can relate to and admire. 

And—and that was important to him in making this decision, not more important than the vast experience that she brought, but—on the courts, because that‘s a prerequisite, but it is certainly something that she will add to the court that he believes will make their decisions richer, juster, more reflective of—of the American people. 

MATTHEWS:  OK. 

We all know about the court.  We have minds that we may not disagree with, rich minds like Scalia, who are real thinkers.  They‘re old world, but they certainly are fun to watch and listen to, mentally.  You, I—you and I—everybody enjoys Scalia‘s thinking, even if we don‘t agree with it. 

And then you have got people like Clarence Thomas, who really don‘t offer much in that regard.  They don‘t even ever say anything. 

Well, let‘s talk about that.

Here‘s Jonathan Turley on MSNBC this morning taking a crack.  He said he studied 30 of this justice‘s opinions, and this is what he found.

(BEGIN VIDEO CLIP)

JONATHAN TURLEY, CONSTITUTIONAL ATTORNEY, GEORGE WASHINGTON

UNIVERSITY:  Well, I have read roughly about 30 of these opinions.  She has a much larger library of opinions.

But they are notable in one thing, in that it‘s a lack of depth.  There‘s nothing particularly profound in her past decisions.  She‘s been a judge a long time. 

(END VIDEO CLIP)

MATTHEWS:  Well, what do you make of that shot?  I mean, what did the president decide when he looked at her written legal work to date? 

AXELROD:  Well, as you know, Chris, the president is—is a constitutional scholar in his own right.  He taught constitutional law at the University of Chicago.  He is steeped in—in the law and in the history of the court.

And he was very impressed with his exchange with her, felt she—her knowledge and her understanding of the law and her history and her mastery of case law was something very, very impressive. 

So, I think that she‘s—when she gets to the court, I think you are going to find that she‘s an active and influential participant, and it‘s going to be steeped in deep knowledge and understanding of the law, as it‘s written and as—as it‘s been applied. 

MATTHEWS:  You know, since you fellows came to the White House, I have been looking at the patterns, the—the—the “Team of Rivals” aspect of bringing Senator Clinton aboard as secretary of state, sort of the Reagan model of getting things done as quickly as you can, because you only have so much mandate.

And then I have looked at the Chicago model, which is to act as if there‘s only one governing party, and then basically do warfare with the crazies out there, or if I—let me put it more lightly—the troublemakers, the Cheneys, the Newt Gingriches, the Rush Limbaughs. 

Here, I have noticed in all the criticism today—I‘m sure you have gone through it—the only critics of this nomination with any kind of violence are that RNC crowd, Rush, Newt, and Limbaugh, I mean, and—and - - and—and...

(LAUGHTER)

MATTHEWS:  ... and Cheney. 

It just seems like you guys are brilliant at picking fights with people that don‘t matter, that aren‘t in government, aren‘t in the Senate, aren‘t in the Congress.  And you brilliantly say there‘s only one governing party—it‘s the Democratic Party of Barack Obama—and we have got these crazies out there we love to fight with. 

Here you are doing it again.  Nobody in the Senate has taken a real shot at this nominee.  The people who have made all the noise are the people on the outside, who many people think are the whack jobs. 

AXELROD:  Well, first of all, let me say, we‘re not picking a fight with...

(CROSSTALK)

MATTHEWS:  Am I right or wrong?  Am I—am I right about this, that you pick your enemies? 

AXELROD:  Well, we‘re not—we‘re not picking fights with anybody. 

We‘re just trying to do the right thing. 

And, if people pick fights with us, we are going to stand up for the things that we believe in.  But understand...

(CROSSTALK)

MATTHEWS:  But don‘t you like your enemies?

AXELROD:  Under—understand, Chris—but under—well, I don‘t want to comment on that.  I don‘t want to discourage them.

(LAUGHTER)

AXELROD:  But I—I think it‘s important to point out that the president spoke to every member of the Judiciary Committee before he made this decision...

MATTHEWS:  Right. 

AXELROD:  ... including the—including the Republicans. 

It‘s also important to point out that she, Judge Sotomayor, was appointed first by George Bush, promoted by Bill Clinton.  She was unanimously approved for the district court.

MATTHEWS:  Right. 

AXELROD:  And she got quite a few Republican votes when she was nominated to the circuit court, including Jesse Helms, including your friend Rick Santorum. 

So, there is—it‘s going to be tough, I think, looking at the record and the history, for those who want to create a caricature of Judge Sotomayor...

MATTHEWS:  Yes. 

AXELROD:  ... to succeed in doing that. 

MATTHEWS:  I think, most importantly, she was originally put up for the district court by Pat Moynihan, one of my heroes. 

But let me—let me—well, what do you think of the fact that John McCain, who you guys beat in the last election, was quick to come out and congratulate her today, in—in juxtaposition to some of these more angry responses to the nomination? 

He said congratulations to her on this appointment.  That was his first gushing comment.  Without saying he‘s going to vote for her for confirmation, he was very positive.  How do you read that?  This is John McCain.

AXELROD:  Look—look—look, I appreciate it.  And I think Senator McCain is a serious person who cares about this country. 

I think there are a lot of people in the Senate, Republicans and Democrats, who are a—are a—of a like mind.  I think she‘s going to get a fair hearing, and I think she‘s going to do very well, because, on the merits, she deserves to be—she deserves this appointment.  And the country is going to benefit from it. 

I think most members of the Senate are going to recognize that, as they did before, when she was up for appointment to other levels of the court. 

MATTHEWS:  Yes. 

Well, I thought it was a brilliant piece of work today, the way you brought her out.  I thought that biography of her, the way it was presented, my own view was, it couldn‘t have been done any better.  We now know so much more about this nominee than we have known about any nominee in the past.  And we know it all in one day.

Thank you very much.  Great work today.

AXELROD:  All right, Chris.  Thanks, Chris. 

MATTHEWS:  I mean that.  I think it was well done.  We now have a lot to argue about on HARDBALL. 

Thank you very much, David Axelrod...

AXELROD:  All right.  Good to see you.

MATTHEWS:  ... senior adviser to President Obama. 

We will have much more on the political fight looming over Judge Sotomayor‘s nomination later in the show with Senator Chuck Schumer, a top Democrat on the Judiciary Committee.  He will be joining us in just seconds. 

You‘re watching HARDBALL, only on MSNBC.  

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL. 

Right now, let‘s bring in Senator Chuck Schumer.  He‘s, of course, a top Democrat on the Judiciary Committee. 

Senator Schumer, you have been through a lot of these fights. 

SEN. CHARLES SCHUMER (D), NEW YORK:  Yes. 

MATTHEWS:  Are this the usual suspects that are got coming at you?

Here is Rush Limbaugh.  I have got to let you go after him, because Rush Limbaugh has a lot to say.  Here he is.  I want you to respond to it. 

(BEGIN AUDIO CLIP, “THE RUSH LIMBAUGH SHOW”) 

RUSH LIMBAUGH, RADIO TALK SHOW HOST:  Here you have a racist.  You might—you might want to soften that, though.  You might want to say a reverse racist.

And the libs, of course, say that minorities cannot be racists, because they don‘t have the power to implement their racism.  Well, those days are gone, because reverse racists certainly do have the power to implement their power. 

Obama is the greatest living example of a reverse racist.  And now he‘s appointed one—you getting this, AP—Sonia Sotomayor to the U.S.  Supreme Court. 

(END AUDIO CLIP)

MATTHEWS:  Is this the enemy you want, Senator Schumer, the big guy on radio? 

SCHUMER:  Well, I—I—I don‘t think you had to be a great genius to figure out that Rush Limbaugh would come out against just about any nominee that the president chose. 

Sotomayor is a moderate.  She‘s been supported by Republicans throughout her career.  In fact, on the 2nd Circuit, most of her colleagues regarded her as moderate.  Ninety-five percent of the time, she agreed with the Republican nominee who was part of the three-judge panel that she was part of.

And she‘s a great, great choice.  And, you know, to pick one case where, actually, Sotomayor was siding with the city of New Haven, this wasn‘t a judge coming in and imposing her own view and saying, you had to change things, but, rather, this is what New Haven wanted, this is what the district court had said. 

MATTHEWS:  The—the judge ruled in that case, along with her fellow judges, that it was OK for—or they weren‘t going to overrule what the city of New Haven did when it threw out that test for the firefighters‘ promotions, because they were trying to proceed in the area of civil rights.  They were trying to equalize a situation.  They were pursuing the goals of Title 7. 

Do you like that judgment?  Do you like the fact that, as long as you‘re trying to do the right thing, you really can‘t be overruled?  That‘s what they seemed to be saying there. 

SCHUMER:  Well, I think this is a careful area of the law.

And, of course, we always have throughout our law—it‘s part of our legal system for years and years and years—that race gets special consideration, because of the long and tawdry history of racism in America.

And now the courts are examining how far you can go in that direction.  But to say that Sotomayor‘s case—decision was racist would mean that lots of judges on lots of benches were racist.  It would mean that the city of New Haven was racist.  I mean, it goes way overboard, and it‘s—it‘s the kind of incendiary language that just doesn‘t work against somebody like Sotomayor, who meets the standards of both legal excellence and being a moderate judge. 

MATTHEWS:  Well, what‘s your standard for affirmative action these days?  Is it fair testing or similar results? 

In other words, if you put a test out, and it turns out that not enough African-Americans do well on the test, then there‘s something wrong with the test.  Is that a fair standard? 

SCHUMER:  Well, you know, again, it depends on the situation. 

The test has to have a relationship to the job itself.  The test has to show whether you can do the job well.  You don‘t necessarily throw the test out if a disproportionate number of any race succeed or fail.

But, at the same time, there‘s going to be a lean in the law to try and include minorities in places where they have been traditionally excluded. 

MATTHEWS:  Let me ask you about her quote of eight years ago.  And I know we all make comments years ago we wish we hadn‘t said that way. 

But here is hers.  And I‘m sure it is going to come up before your

committee, among the Republicans, especially—quote—this is the judge

“I would hope that a wise Latina woman, with the richness of her experiences...”

SCHUMER:  Right. 

MATTHEWS:  “... would more often than not reach a better conclusion than a white male who hasn‘t lived that life.”

Wouldn‘t—won‘t...

SCHUMER:  Look...

MATTHEWS:  ... that be used by people on the conservative side to say, she‘s an activist; she‘s using her role to—to even the odds, or to give a break to minorities, because she wants to do that? 

SCHUMER:  No, I think what she—I think what she‘s saying is that, in some instances, her experiences, or experiences of judges do matter. 

Look, rule of law comes first.  And, no matter what your experiences are, you have to follow rule of law.  Judge Sotomayor‘s seven and 10, 17 years on the bench show that she follows rule of law.  She‘s hardly an outlier in any way. 

But, at the same time, within the bounds of rule of law, people‘s experiences matter.  And I think most Americans would say, once you meet the two standards of excellence and moderation, you have legal excellence, you really know the law inside out—clearly, she does—moderation—you‘re not...

MATTHEWS:  Right. 

SCHUMER:  ... too far right, you‘re not too far left—diversity of experience matters.  And there‘s nothing wrong with that, provided it doesn‘t supplant rule of law. 

MATTHEWS:  Well, here is the other lightning rod.  Here‘s a statement she made, as you know already, at Duke University four years ago. 

And it‘s got critics again charging her with judicial activism.  Here it is on tape, Senator. 

(BEGIN VIDEO CLIP, 2005)

JUDGE SONIA SOTOMAYOR, SUPREME COURT NOMINEE:  All of the legal defense funds out there, they‘re looking for people with court of appeals experience, because it is—court of appeals is where policy is made.  And I know—and I know this is on tape, and I should never say that, because we don‘t make law.  I know. 

(END VIDEO CLIP)

MATTHEWS:  What do you think? 

SCHUMER:  Yes. 

MATTHEWS:  She found out—she realized, like we often do...

SCHUMER:  Well...

MATTHEWS:  ... “My God, I‘m on tape.  I‘m saying we make law, we make policy.”

Should judges make policy, Senator? 

SCHUMER:  Chris—Chris, the next sentence that she said—and this is typically what the far right has done—they have done it to me.  They have done it to just about everyone else.  They cut the sentence in half. 

I don‘t have the quote in front of me here, but her next sentence is:

“That‘s not what I believe.  That‘s not what I aspire to.”

In other words, she‘s saying, even though it may be that courts of appeals sometimes decide policy, that‘s not what the law ought to be.  And that one is just going to be the rug by that next sentence, which will become public as they make a fuss about this.  They will just pull the rug out from under the arguments. 

And I have to say this.  These are very slim reeds to base opposition to a nominee who has so many powerful arguments for her.  These sort of little snippets that don‘t tell the whole story, that don‘t show any kind of perverse sense of going beyond or around the law, how are they going to prevail against somebody who has the life story that she does, who has the legal brilliance that she does?

You don‘t make Yale Law Review on a whim.  In fact, it‘s blind.  In other words, you write essays.  They don‘t know your name.  They just pick the best essays.  There she was, somebody who has clearly been a moderate, supported by 23 Republicans when she was last in the Senate, and they‘re sort of grasping at straws. 

And the point you made earlier is a good one.  The politicians, whether it‘s Sessions, McCain, are anyone else, are not lashing out against her.  It‘s sort of the spokespeople for the party.  And their job is to try and stir the pot. 

I think they—they‘re going to do a lot of stirring, and I don‘t think any of it is going to stick.  I would predict she‘s going to be confirmed by a large majority, almost every Democrat and a good number of Republicans.

And one more thing, Chris—this is much more a test of the Republican Party than it is Sotomayor.  Her record is clear.  Her record is extensive.  She‘s a top-notch jurist.  If they can‘t support someone like her, then that says how out of touch and out of the mainstream they are...

MATTHEWS:  OK. 

SCHUMER:  ... not what she is. 

MATTHEWS:  OK.  Let me ask you one last point.  You—you said several years ago—and I do pay attention to your thoughts about this—you once said that, let‘s stop nickel-and-diming these nominees, focusing on peccadillos, because there is a legitimate debate here over judicial philosophy.  And, if we have a different philosophy, fair enough.

SCHUMER:  Correct.

MATTHEWS:  We have the right to vote against them. 

Aren‘t the conservatives on your committee and in the Senate at large fully entitled to oppose this nominee, regardless of how qualified she is academically, no matter how great her biography and her American story is, if they don‘t like what they have read in her rulings?  Aren‘t they qualified and entitled to say, not this one?

SCHUMER:  Well, look, anyone can do that.

But let me just say this.  Her rulings are very moderate and mainstream.  I do believe you look at the rulings.  And you‘re right.  We shouldn‘t look and see if someone in 1973 got a jaywalking ticket and make a huge fuss about that. 

MATTHEWS:  Yes. 

SCHUMER:  That demeans the process. 

But, when you look at her rulings, and you see how mainstream they are, and then they would say, oh, they oppose her, it says something about them.  So, they have a right to oppose her.  But then I think people have their right to make a judgment on, is this Republican Party so much the party of no, that they can‘t even support someone like Sotomayor, who has a record of moderation, a record of excellence, and, yes, who has a compelling life story and different experiences than most people who rise to that level?

MATTHEWS:  Senator Chuck Schumer of New York, thanks for coming on HARDBALL tonight. 

SCHUMER:  Thanks, Chris.  Nice to talk to you.

MATTHEWS:  Up next:  The politics of President Obama‘s Supreme Court pick, the politics—I think we have already gotten to it—we will get deeper into it.  Certainly, the president kicked things off today with an amazing camp—look at that.  It‘s like a campaign announcement at a Democratic Convention. 

He brought her out.  He wowed us.  The ballyhoo boys did a good job.  As I said to Axelrod a minute ago, this was well-developed.  The question is, will the landing be as good as the takeoff?  The takeoff looked pretty good.

We will be right back with that.  We‘re talking about the politics of this.  Is this trouble the president wants, this debate?  I think he wants this debate.

Back in a minute with HARDBALL.

(COMMERCIAL BREAK)

(MARKET BREAK)

(COMMERCIAL BREAK)

MATTHEWS:  We‘re back.  It‘s time for the politics fix with the “Politico‘s” chief political columnist Roger Simon, and “Washington Post‘s” Chris Cillizza.  Well, I couldn‘t think of two better guys.  You‘re sort of coming in for clean up tonight, because we‘ve been talking politics for 40 minutes now.  This court decision, my hunch, Sam Spade, Maltese Falcon, a little trouble I don‘t mind.  I think he wants a little trouble with this nomination.  He doesn‘t want it to whiz through.  He wants a fight. 

ROGER SIMON, “THE POLITICO”:  He would be delighted if the Republican party further crashes its ship on the shoals of this nomination. 

MATTHEWS:  Another Anita Hill. 

SIMON:  It would be worse for the Republican party.  You heard Pat Buchanan today denounce this as an affirmative action choice, right?  OK.  So if you‘re a Hispanic voter, the Republican party is saying no matter how hard you work, no matter how high you rise, no matter what sacrifices you make in your life, you‘ll never be—

MATTHEWS:  Even if you‘re number one in Princeton. 

SIMON:  We‘ll never accept you because you‘re just affirmative action.  If you‘re a Hispanic in Texas or Arizona, come 2010 or 2012, why would you vote for Republicans? 

MATTHEWS:  If they‘re listening to you they won‘t.  I haven‘t heard it put so well.  Cillizza is going to help match that analysis, because I never thought of the way it would hit people as mockery.  Because it often is used against who succeeds, oh, you got there because of quotas.  Here is a woman who made it not just into Princeton, but number one at Princeton.  She won the Pine Prize for the smartest kid that graduated.

What do you make of this politics, Chris Cillizza?  Is this a winner for the president and the constituency he seeks to build for the Democratic party? 

CHRIS CILLIZZA, “THE WASHINGTON POST”:  Two things, Chris.  One, it‘s the pick of a very confident president.  Every president says they don‘t read polls.  And of course we know they all read polls.  Barack Obama is well aware of his standing with the American people.  He‘s also well aware of the Republican party‘s standing with the American people.  This is a pick that there is no question he know there is the potential—we‘ve already seen some of it—that conservatives will be up in arms about.

To Roger‘s point, I think he picked it saying, if you want the fight, I more than welcome it. 

Number two, remember this all comes down to the Senate, 59 seats, including Mr. Specter now on the Democratic side.  That‘s one away from being able to end debate.  Al Franken may well wind up in the Senate by the time this things comes up for a vote.  I don‘t want to make any predictions about when that Minnesota Senate—

MATTHEWS:  They‘re not going to slow walk this, are they?  Do you think they would slow walk this, the Republicans?

CILLIZZA:  No, I don‘t think so, Chris.  I think there‘s a critical distinction.  I think you‘ve got to define the establishment Republicans and sort of the movement conservatives differently.  Movement conservatives, Rush Limbaugh, those sorts of folks, are almost certain to be absolutely 100 percent against this.  The establishment of the party, I think they know almost certainly, barring some revelation, that this is a tough one to not get confirmed.  What they are trying to do, I think, is take off the bark, the bipartisan sheen from Obama. 

MATTHEWS:  You know, this is my—I tried this by Axelrod.  Tell me if I‘m right, Roger.  You‘re Chicago, right?

SIMON:  Yes. 

MATTHEWS:  Isn‘t this the Chicago trick again, pick your fight with the wackos.  Don‘t fight with the other party.  Act as if there‘s only one party, the Democratic party, Barack Obama, and then pick fights with Rush, with Cheney—as Howard calls them, the RNC, Rush, Newt, and Cheney.  Pick your fights with that crowd. 

SIMON:  Yes.  And they‘re obliging.  When your enemies just hand you the gun to shoot with—you hear Rush today say, it‘s racism, just racism.  You hear Pat, who I like, say, well, this is just affirmative action. 

That‘s the fight Barack Obama wants.  He is saying this is the opportunity

--

MATTHEWS:  Everybody—to make Chris‘ point, everybody who is elected senator, not because they are on the trial board now, basically—they have to decide this—even John McCain—well, especially John McCain really congratulated the judge today. 

SIMON:  What state is he from?  Arizona. 

MATTHEWS:  And?

SIMON:  And he‘s smart, because he doesn‘t want to see Hispanics flee the Republican party. 

MATTHEWS:  And he senses what you‘re sensed to, which is this is an achievement on their part, their community.  This is a big victory for those people, because they‘re Puerto Ricans getting a shot like this, an honor like this, that they‘ve never been given before, never been in the position to grab, maybe. 

SIMON:  And to Chris‘ point, she also happens to be impeccably qualified.  I mean, it‘s not a risk in the sense, oh, I‘m just going to take this wild liberal who has said some bad things.  This woman has everything going for her. 

MATTHEWS:  OK. 

SIMON:  She‘s going to be confirmed. 

MATTHEWS:  Chris Cillizza, what about the firefighters fight?  There‘s a part of this that‘s going to cause turmoil, which is that she joined the opinion of the appellate court, the three-judge panel, that it was OK for that city council in New Haven, Connecticut to throw out an exam because not enough blacks were able to do well in it, striking many people as a results based thinking, rather than fairness base. 

What do you think this will do politically? 

CILLIZZA:  I would say that, plus the Youtube clip, which we‘ve probably already seen played one billion times on television—

MATTHEWS:  Stay tuned.  It‘s going to stay on.

CILLIZZA:  Those two things are the biggest impediments—

MATTHEWS:  Where she says we make policy and—

CILLIZZA:  Exactly.  The appeals court makes policy.  I think those two things, the firefighters‘ case and that Youtube clip, are the two things that conservatives will latch on to, rightly so, to make the case against her.  Again, I think it comes down to the Senate, Chris.  You‘ve got John McCain.  Look it, another one, Olympia Snow in Maine praising the pick, not just saying well, we‘ll wait and see, but praising the pick, a moderate Republican from Maine.

You‘re looking at 60 votes for cloture and then 51 for a majority.  I just think it‘s very tough for Republicans, especially who sit in the Senate, to oppose this nomination, with the caveat that unless we learn something big and important about Judge Sotomayor that we don‘t know today.

MATTHEWS:  Let‘s come back and talk about the weekend over this Memorial Day weekend between Dick Cheney and Colin Powell.  Based on our numbers, Powell is killing him.  We‘ll be right back with Chris Cillizza and Roger Simon.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

COLIN POWELL, FMR. SECRETARY OF STATE:  Rush will not get his wish and Mr. Cheney was misinformed.  I am still a Republican. 

I have always felt that the Republican party should be more inclusive than it generally has been over the years.  What we have to do is debate and define who we are and what we are and not just listen to dictates that come down from the right-wing of the party. 

(END VIDEO CLIP)

MATTHEWS:  That man is everybody‘s bid brother.  Doesn‘t he seem like your big brother, the reasonable, soft spoken, regular guy that doesn‘t get too flamboyant? 

Let‘s talk about the latest polling right now on that gentleman, of course, General Colin Powell, who was secretary of state in the first part of the Bush administration.  He‘s polling 70 percent, which is pretty good in this business of public life.  I don‘t know anybody in public life doing that well.  Dick Cheney at 37.  Rush Limbaugh is something like—how‘s my eyes -- 30 something, 30. 

Then on this other one, though, this is where it counts, the sweet spot, inside the Republican part.  Different story, Cheney is riding high among the true believers, 66, Colin Powell at 64 and Rush at 62.  They‘re all bunched together there.  So they‘re all pretty competitive inside, which is interesting because Cheney is the ultimate conservative Republican and here is Colin Powell doing almost as good. 

SIMON:  Here you find a party who finally finds a Republican who is popular with the general population, 70 percent approval rating.

MATTHEWS:  Like Eisenhower was.

SIMON:  So they decide, let‘s attack him.  Let‘s drive him out of the party.  Let‘s say we don‘t love him.

MATTHEWS:  That‘s what they did to Eisenhower.  Don‘t you remember?  You‘re as old as me.  Isn‘t that what they did to Eisenhower and his brother?  They called them communists, the right wing did.

SIMON:  -- the president twice.

MATTHEWS:  They went after him so badly.  Chris, you don‘t remember this, because you weren‘t there, but let me say, the Republican party loves to get its moderate general heroes and destroy them for not being fanatical enough.  No Eisenhower communists.  Ike Eisenhower communist.  They love that.  The Birchers loved to do that in those days.

What do you think of this?  Who is going to win this battle for the American minds and hearts?  Dick Cheney or Colin Powell? 

CILLIZZA:  Look, I think it‘s a very tough comparison because, as you pointed out, Dick Cheney is one of the least popular politicians in the country of either party.  That‘s why—again, time and time again, I talk to Republican strategists.  They say look, the message Dick Cheney is putting out there, especially on national security, that we‘re OK with that message.  The problem is this guy who is putting out that message. 

Can they find someone else?  This protracted fight back and forth, between conservatives and moderates, all it does is for people who only casually follow politics—not like the three of us—it makes them think what is going on inside the Republican party.  That‘s not good, particularly when you have a strong president, a Democratic president, moving forward on a lot of fronts and Republicans just look lost. 

MATTHEWS:  Well said.  Thank you, Chris Cillizza.  Thank you, Roger Simon.  Join us again tomorrow night at 5:00 and 7:00 Eastern for more HARDBALL.  Right now it‘s time for “THE ED SHOW” with Ed Schultz.

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