updated 5/27/2009 2:38:37 PM ET 2009-05-27T18:38:37

Guests:  Howard Fineman, Jonathan Turley, Robert Gibbs, Jonathan Alter, Erich “Mancow” Muller>

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KEITH OLBERMANN, HOST (voice-over):  Which of these stories will you be talking about tomorrow?

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PRES. BARACK OBAMA, UNITED STATES:  I have decided to nominate an aspiring woman who I believe will make a great justice: Judge Sonia Sotomayor.

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OLBERMANN:  What would be the first Hispanic judge on the court, only the third woman—nominated by the first African-American president.

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JUDGE SONIA SOTOMAYOR, SUPREME COURT NOMINEE:  I firmly believe in the rule of law as the foundation for all of our basic rights.

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OLBERMANN:  And the right already on the attack—invoking even the firefighters of 9/11 as a tool with which to oppose the nomination.  The politics with Howard Fineman; the inside baseball of the courts with Jonathan Turley; the White House‘s answer from Press Secretary Robert Gibbs.

Prop 8 upheld by the California courts.  But the same-sex marriages that preceded it are still legal?  How will all that hold up in the new Supreme Court?

“The closure in a responsible manner sends an important message to the world, as does the commitment of the United States to observe the Geneva Convention when it comes to the treatment of detainees.”  General David Petraeus is now openly supporting the closing of Gitmo and the repudiation of waterboarding and torture.

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ERICH “MANCOW” MULLER, RADIO HOST:  I do not want to say this.  I do not want to say this.  Absolutely torture.  Absolutely.  I mean, that‘s drowning.

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OLBERMANN:  And his eyes opened after being waterboarded on his own radio show.  He says if he was being interrogated with it, he would confess to anything.  Erich “Mancow” Muller joins us.

All that and more—now on COUNTDOWN.

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MULLER:  It is way worse than I thought it would be.

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OLBERMANN:  Good evening from New York.

It says something about positive change in this country, about societal evolution—that the president of the United States, in nominating his first Supreme Court justice could fall back on the “obvious, easy, no-brainer, first name on the rumor list, everybody-knew-about-it” choice.  A woman?  A woman of Hispanic heritage, a woman whose parents were born in Puerto Rico, a woman who‘s raised in the projects in the Bronx.

Our fifth story on the COUNTDOWN: Supreme Court nominee, Judge Sonia Sotomayor and the new default position here—quality with diversity.  President Obama is making history in the east wing of the White House this morning, a little more than 13 hours after he had called the federal appeals court judge at home last night to inform her she was his pick to replace Justice Souter on the court.

An aide to the president is saying that Mr. Obama, after interviewing her for an hour in the Oval Office last Thursday, quote, “was blown away by her personal story, her sharp intellect and confidence and her experience as prosecutor, trial judge, litigator and appellate judge.”

The president himself is emphasizing Sotomayor‘s personal story and her experience at the White House this morning.

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OBAMA:  It‘s a measure of her qualities and qualifications that Judge Sotomayor was nominated to the U.S. district court by a Republican president, George H.W. Bush, and promoted to the federal court of appeals by a Democrat, Bill Clinton.  Walking in the door, she would bring more experience on the bench and more varied experience on the bench than anyone currently serving on the United States Supreme Court had when they were appointed.

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)

OLBERMANN:  Judge Sotomayor is saying that her background makes her more understanding on the bench.

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SOTOMAYOR:  Thank you, Mr. President, for the most humbling honor of my life.  You have nominated me to serve on the country‘s highest court and I am deeply moved.  I strive never to forget the real world consequences of my decisions on individuals, businesses and government.

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OLBERMANN:  The Republican Party having started its assault on the judge weeks ago with a whisper campaign when she was merely rumored to have been on President Obama‘s short list.  With today‘s announcement, the attacks are beginning in earnest.  Karl Rove not only calling the moderate jurist, quote, “an unabashed liberal,” for the same man who brought you Harriet Miers as a Supreme Court nominee; adding, quote, “I‘m not certain how intellectually strong she would be.”  Harriet Miers.

Just last year, Judge Sotomayor having ruled to join the decision in favor of the city of New Haven, Connecticut.  That city having thrown out a promotions test for firefighters when no African-Americans did well enough to qualify; firefighters are claiming reverse discrimination.  The case now is being weighed by the U.S. Supreme Court.

At “National Review Online,” Wendy Long viewing that as reason enough to invoke the 9/11 attacks.  Quote, “On September 11, America saw firsthand the vital role of America‘s firefighters in protecting our citizens.  They put their lives on the line for her and the other citizens of New York and the nation.  But Judge Sotomayor would sacrifice their claims to fair treatment in employment promotions to racial preferences and quotas.”

Boss Limbaugh is joining the call of reverse discrimination today, and already calling for Judge Sotomayor to fail.  Unless this was a taped best of show and with him, it‘s beginning to be hard to tell.

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RUSH LIMBAUGH, RADIO TALK SHOW HOST:  Do I want her to fail?  Yes.  Do I want her to fail to get on the court?  Yes.  She‘d be a disaster on the court.  Do I still want Obama to fail as president?  Yes—“A.P.,” are you getting this?  He is going to fail anyway, but the sooner the better here so that as little damage can be done to the country.

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OLBERMANN:  Eleven Republicans who voted against Judge Sotomayor‘s appointment to the circuit court of appeals in 1998 are still in office today, the same eleven having decried the filibustering of judicial nominees during the Bush administration, now-Minority Leader McConnell among them.

(BEGIN VIDEO CLIP, MAY 15, 2005)

SEN. MITCH MCCONNELL, REPUBLICAN LEADER:  Because of the unprecedented obstruction of our Democratic colleagues, the Republican conference intends to restore the principle that regardless of party—regardless of party, any president‘s judicial nominees after full debate deserve a simple up-or-down vote.

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OLBERMANN:  Joining us now from the briefing room in the White House, Press Secretary Robert Gibbs.

Thank you for some of your time tonight, sir.

ROBERT GIBBS, WHITE HOUSE PRESS SECRETARY:  Happy to do it, Keith. 

How are you?

OLBERMANN:  We‘ve ran through her qualifications.  Now, we got the attacks on the other side beginning here, the questions.  Karl Rove who, of course, helped to get Harriet Miers nominated has questions the judge‘s intellectual strength.  I mean, somebody else here is using her New Haven decision as an excuse to invoke the firefighters from 9/11.

On the face of it, this kind of blowback would seem kind of silly and kind of simple to answer.  But you‘re going to have to fight it, you‘re going to have to face it.  How do you do it?

GIBBS:  Well, look, let‘s take each of these arguments head on.  The first one, I don‘t know where you graduated in your class, Keith, or where I did .

(LAUGHTER)

GIBBS:  . but Judge Sotomayor finished second in her class at

Princeton.  She was a member of Phi Beta Kappa, that‘s not a social

fraternity.  I think, if you look at—she was an editor at the Yale Law

Review.  These are not accomplishments that we should snicker at.  They are

legitimate—she is legitimate intellectual heft.  I think even Karl Rove

I don‘t know where he finished in his class at Princeton—but my guess is it wasn‘t second.

               

I think she has clear intellectual heft.  As you said, she‘s got the experience and the judgment—the president believes—to do this job very effectively.

And let‘s look at the case that you mentioned.  She was very sympathetic to the plaintiffs in the case that the plaintiffs were making.  But you hear this pushback a lot, which is, we don‘t want a judicial activist.  What Judge Sotomayor did, along with the other judges on the court, was take the precedent of the second circuit and apply it in this case and come up with a ruling.  That‘s the definition of judicial restraint.

OLBERMANN:  Speaking of restraint, her opponents on the Senate Judiciary Committee oppose the filibustering of judicial nominees during the last administration.  So, naturally, they will be against filibustering in this case, will they not?

GIBBS:  Well, look, we believe we‘re going to get a fair and honest hearing for Judge Sotomayor.  We‘re convinced also that can do this very quickly, in a judicious, no pun intended, time period, in order to get Judge Sotomayor to be Justice Sotomayor before the court starts its work in October. And we think we can get that done before the August recess.

OLBERMANN:  Do you know exactly who you are getting here?  I mean, I realize, in the sports world, it‘s an awfully bad context in which to judge a judge, but the president brought this up—brought her decision which many people believe in a labor case saved baseball.  On the other hand, when she ruled for the players in a baseball case, a couple of years later, there was also a key football labor case where she ruled against the players and for the owners.

Is there a—is there a straight line in her decision-making or is she something of a wild card to you?

GIBBS:  No.  I think—look, I think she‘s somebody that understands

as I said a minute ago—judicial precedent.  She understands how to apply the rule of law.  I think that‘s why the president thought she would be a terrific pick.

               

I think she‘s somebody that has been consistent in her rulings.  I think that‘s what you‘ll get as she progresses and becomes Justice Sotomayor.

OLBERMANN:  How are you responding to those in the liberal base who are viewing her or expressing some doubts about whether or not she is sufficiently liberal to be President Obama‘s first Supreme Court justice?

GIBBS:  Well, look, I think she clearly is somebody who shares the president‘s judicial philosophy.  I think she‘s got a richness of diversity and experience.  As I said, she‘s been a prosecutor, a litigator.  She‘s been a judge at two different levels.

And again, I think she shares, most of all, the president‘s judicial philosophy.

OLBERMANN:  Press Secretary Robert Gibbs, staying late for us from the briefing room—thank you for some of your time tonight, sir.  And thanks for mentioning where I finished in my class.  Those records are sealed.

(LAUGHTER)

GIBBS:  Thanks, Keith.

OLBERMANN:  For more on the politics, let‘s turn now to our Howard Fineman, senior Washington correspondent for “Newsweek” magazine.

Howard, good evening.

HOWARD FINEMAN, MSNBC POLITICAL ANALYST:  Hi, Keith.

OLBERMANN:  Don‘t ask.  Seriously, how do .

(LAUGHTER)

OLBERMANN:  How do the same Republicans who‘ve been against filibustering judicial nominees on principle, who made it into, you know, a bloody shirt during the Bush administration, how do they fail or even threaten to fail to give Judge Sotomayor an up-or-down?

FINEMAN:  Very easily.

(LAUGHTER)

FINEMAN:  I think they‘re—this is Washington, Keith, where .

OLBERMANN:  Yes, I know.

FINEMAN:  . memory loss is a convenient thing.

I think they are going to work themselves up to a state of high dungeon about this.  I think they‘re going to focus on a couple of things.  One of them is that quote from Judge Sotomayor about a Latina—all things, other things being equal—coming out with better decisions.  You know, she said that at a conference out in California in 2001.  They‘ll focus on that.

They‘ll focus on the activism question, which isn‘t much of a—isn‘t going to work, because this is a political process.  And we tend to forget that.  There‘s a reason why the Founding Fathers gave members of the Senate the power to vote to confirm or deny the confirmation of justices.  There is politics involved in picking the judges.

Somebody has to judge, some human being.  And what Barack Obama is saying and what Judge Sotomayor is saying, is that the more diversity you have in qualified people—and she is qualified—to bring to bear on reading and interpreting our great Constitution, the better for our society.  That‘s a hard thing to argue against but the Republicans are going to do it.

OLBERMANN:  How is it going to work inside that small moderate wing of their party?  Because there were eight who voted for her in 1998: Lugar, Collins, Snowe, Cochran, Gregg, Bennett, Hatch and Specter.  Specter has already switched parties, has already endorsed her.

Presuming that Senator Hatch allows the nomination out of committee and presuming just one more of those Republicans votes for her this time around when it reaches the floor, how do the Republicans stop the nomination without filibustering?

FINEMAN:  Well, first of all, they‘re not going to.  I talked to several top people in the Senate.  I think, unless we find something that we don‘t have any vague idea about Judge Sotomayor—for example, she‘s photographed at Fenway Park, you know, waving a Boston Red Sox pennant or something like that, you know, she‘s going to be difficult—she‘s going to be difficult to beat because she is qualified.

Does she have a lot of distinguished opinions that are cited everywhere else the world?  Not necessarily.  But she‘s clearly qualified.  She clearly has experience in terms of having been a trial court judge, of having been in private practice.  She has a diversity and richness of legal experience that very few recent nominees have had.  So, she‘s going to be hard to beat.

Those people that you mentioned will probably end up vote for her.  There will be a sort of rump parliament of about 30 Republicans who will try to slow-walk it, but they‘re probably, almost certainly, not going to be able to succeed.

OLBERMANN:  And the conundrum facing them—how do they do, as with every other significant political event of the year, how do they do any of that without—with getting what the they need, that minimum that they need to sort of enhance their bona fides on their own side, but without adding to this public burnishing this public reputation that all they do is say no?

FINEMAN:  Well, it‘s even worse than that.  Well, first, they are going to keep saying no.  That‘s what that group of 30 members in the Senate are going to do.

But they‘ve got the additional problem of that case up in New Haven, the affirmative action case.  Now, there are some people who are very upset about it.  The test failed to allow any blacks, African-Americans to advance.  But it‘s kind of a political bear trap, I think.

If the Republicans—and I‘m not sure they are going to do this—but if they base their opposition to Judge Sotomayor on that New Haven case, they‘re going to back themselves into the demographic corner that they are already backed into, seeming to be the party defending white males.  Just on politics alone, that‘s a very, very risky thing for them.

OLBERMANN:  Howard Fineman of “Newsweek” and MSNBC—great thanks, as always, Howard.

FINEMAN:  Thank you, Keith.

OLBERMANN:  What the legal profession thinks of Judge Sotomayor is almost as fascinating as what she maybe asked to do about what she thinks about Prop 8 in California.  It today upheld by the Supreme Court there.  The inside baseball assessment of that would-be justice—whatever is going on inside the minds of a court that thinks of vote to revoke rights from some people but not others is OK, and what the U.S. Supreme Court will do about this with or without a Justice Sotomayor.  From Jonathan Turley—next.

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OLBERMANN:  Jonathan Turley says whoever wins the spin wars of the first two days will dictate how easily the Sotomayor nomination goes.  He‘ll join us on that.  Her standing on the legal world and what might be one of her first votes—the California Supreme Court decision today to uphold both Prop 8 and the same-sex marriages that preceded Prop 8.

Later, the “we only waterboarded three guys” defense, a flavor of the week among the torture defenders, and one man who believes one waterboarding was one too many, his own.  Mancow Muller joins us on COUNTDOWN.

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OLBERMANN:  Judge Sonia Sotomayor has been confirmed by the Senate twice, once after her first nomination by the first President Bush and once again after President Clinton nominated her to a higher court.  And even though some of Republicans who voted for her remain in the Senate, the Republican Party—in our fourth story tonight—says it still needs, quote, “ample time to figure out who she is.”

Judiciary committee member, Dianne Feinstein, is responding tonight, quote, “I know there are those who will try to delay this nominee,” but warning them, quote, “It is likely that we will have 60 votes.”

Michael Steele‘s official RNC talking points and a few hundred influential Republicans also obtained by TheHill.com which reports they include suggested guidelines such as the claim that, quote, “Republicans will avoid partisanship and knee-jerk judgments.”  No partisanship, no knee-jerk judgments.  So, the very next talking point reads, inevitably, quote, “Judge Sotomayor has received praise and high ratings from liberal special interest groups.”

The judge herself today is offering a message of thanks to the president and hope towards the Senate—Republicans included.

(BEGIN VIDEO CLIP)

SOTOMAYOR:  Mr. President, I greatly appreciate the honor you are giving me.  And I look forward to working with the Senate in the confirmation process.  I hope that as the Senate and American people learn more about me, they will see that I am an ordinary person who has been blessed with extraordinary opportunities and experiences.  Today is one of those experiences.  Thank you again, sir.

(APPLAUSE)

(END VIDEO CLIP)

OLBERMANN:  Let‘s turn now to Jonathan Turley, professor of constitutional law at George Washington University.

Thanks for some of your time tonight, Jon.

JONATHAN TURLEY, GEORGE WASHINGTON UNIVERSITY:  Hi, Keith.

OLBERMANN:  Given today‘s various reactions, what do you think the closest thing there is here for a genuine objection to her nomination and what‘s the most likely thing for a bogus objection?

TURLEY:  Well, I think the bogus objection has already been made—that she is an activist judge.  I‘ve read all of her major decisions and many decisions in addition to those.  I don‘t see how you can possibly label her as anything but a moderate judge.  She‘s trying—her opinions come on both sides of the political line.

I also don‘t think that you can make too much over temperament.  It‘s nice to have a good temperament.  And she may have a good temperament.

I don‘t think it‘s so clear that these criticisms reflect who she is. 

But we are not picking a best friend.  And we are not picking a house pet.  We are picking a justice.  And the important thing is what she can offer to the court.

I think that the criticism is mainly a concern shared by some of us, that unlike some of the other people on the short list, there really isn‘t any opinion after a long history on the court that has yet to be pointed to as an example of her vision of the law.  She doesn‘t have any extraordinary opinion in these large collections of opinions that give us an idea of her vision, some profound notion of what she might do with this.

Now, that may reflect the fact that she is an appellate judge and that she had a minimalist approach.  But it is a concern.  Many of us didn‘t want to take that risk.  We viewed people like Diane Woods and Harold Koh as having demonstrated that type of brilliant vision and could really juxtapose with someone like Scalia.

But that‘s the most criticism you could point to.  She does have some cases that are likely to attract attention.  The Gant case is a case involving a kindergarten student that might attract attention.  We know about the firefighters‘ case.

But, for the most part, I don‘t see any example, really, of judicial activism that people could point to.

OLBERMANN:  She may get a vote on today‘s other big story, the state Supreme Court in California ruling today that Prop 8, a voter referendum banning same-sex marriage, did not violate the state Constitution.  How do these two things going to play?  I mean, what does Sotomayor‘s nomination do for that issue and what does that issue do to her nomination?

TURLEY:  Well, it‘s hard obviously not to think about this.  This was a very bad day for civil libertarians.  It was a day that was expected because of what we saw with oral argument.  But for those of us who support same-sex marriage, it‘s a tragic day to see a step backward.  Although the court did say that the 18,000 or so unions that had been approved would not be invalidated—which is something.

But, obviously, this is a long struggle for same-sex couples.  It‘s not clear what her view will be.  You know, many people feel she will be clearly pro-choice.  But, frankly, she hasn‘t ruled on my abortion issues, right to choose issues either.

But the expectation is that she would land with the left of the court on those issues.  I think what you are finding is, just because she doesn‘t have any opinions that are viewed as being profound doesn‘t mean that she won‘t be a profound justice.  She is clearly quite bright.

But being bright, being smart does not necessarily mean that you have a vision.  We have plenty of people who were very, very smart, had very incredible pedigrees, that turned out not to be so impressive.  I criticize Sam Alito because his decisions also lacked any real profound or depth to them.  And he turned out to be a justice much like he was a judge.

We‘re all hoping—and I think there is good reason to hope—that she will hit her stride, find her voice on the court, like we saw with other people like Stephens, for example, who really didn‘t develop that stride and voice until into his term as a justice.

OLBERMANN:  Well, maybe it‘s the mind first and the voice second.  We certainly expect to see in her case.

TURLEY:  That could be very well true.

OLBERMANN:  Jonathan Turley of George Washington University—as always, Jon, many thanks.

TURLEY:  Thanks, Keith.

OLBERMANN:  And now, a metaphor for life itself—the power of cheese and the broken ankles which result from the power of cheese.  (INAUDIBLE).  You didn‘t see the cheese there but there was.

And the quote of the week, “It‘s hard to argue with eight-plus years of safety since 9/11.”  Would you show your math, please?  Eight-plus years?

Worst Persons is ahead on COUNTDOWN.

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OLBERMANN:  Bests in a moment.  And the tour de prisons?

First, these reminders from history that you might think you can stop it but in reality, you can‘t even contain it.  On this date in 1521, the Edict of Worms outlawed Martin Luther and the Lutherans.  On this date in 1924, President Coolidge signed a bill into law cutting immigration in this country to a trickle.  And, on this date in 1977, the final 10 of the 42 American theaters chosen for the big debut premiered “Star Wars.”

Let‘s play Oddball.

And we begin in Gloucestershire, England, with the annual chasing of the cheese.  For six years, Oddball has covered this festival and ankle-snapping and curd-trapping.

And you know the drill.  The real cheese is roll down the hill. 

Racers with death wishes follow.

And after all these years, I think it‘s probably time to dispel a few cheese chase myths.  First, the Gloucester cheese is unpasturized, talk about a risk.  The winner in each hit gets his or her own wheel of cheese.  But there is no ultimate cheese chase champion.  And contrary to popular opinion, competitors need only to be half a maroon not a full one to participate in the cheese chase.

More Oddball continuing coverage, this time, mascot violence.  We‘ve seen it before, one team‘s plushie picks a fight with another team‘s plushie.  And before you know it, you got a duck whopping on a cougar on the sideline of a sporting event.  It is amusing, perhaps, harmless.

That is until the violence goes from mascot-on-mascot to mascot-on-player.  This is believed to be from Norway (ph).  The soccer player minding his own business got a pushie bumblebee fist right in the kisser.  Thankfully, the player fought back the urge to kick the thing in the thorax.  You know what they say—sting like a butterfly and float like this bee.  Oh, you, bee!

And in sports, to the notable ending from last Friday‘s eastern conference finals of the NBA between the Cleveland Cavaliers and Orlando Magic.  You‘ve probably seen the improbable shot by Cleveland‘s LeBron James that won the game.  What you may not have seen was the coverage of the winning shot as the anchors on Cleveland TV station, WEWS, watched it on another channel.

Here is Mark Johnson with weather and Terry Brooks with sports.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Seventy two Sunday, 73 on Monday, with isolated thunder.  Should be a decent weekend for golf at Canterbury.  Everything is looking good. 

UNIDENTIFIED MALE:  Cavs win.  Cavs win!  Cavs win!

(END VIDEO CLIP)

OLBERMANN:  So, for Mark and Terry and all of us here, a reminder to change channels immediately to see Lebron‘s game winner again and probably an interview with him.  And the other station may even have cookies for you and stuff.  Don‘t forget, we‘re your station for not carrying the Cavalier‘s games. 

An unlikely far right bluster over keeping Gitmo open.  An unlikely supporter for closing it reveals himself.  Yes, the gentleman on the right.  And Mancow and the water board, the man who put his lungs where his mouth was on the meaning for this.  These stories ahead, but first time for COUNTDOWN‘s top three best persons in the world.

Number three, best disguise; police in Nebraska are looking for a man who robbed a convenience store in Lincoln of nine packs of cigarettes while wearing an unusual disguise on his head, an empty Bud Light 12 pack, which he dropped on the way out, presumably leaving his finger prints for police. 

Number two, best impatient driver, Lian Jian-Sheng of Guanzo (ph), in China, stuck in what turned out to be a five-hour traffic jam around the Heijou (ph) Bridge, Lian got out of his car to discover that a man was threatening to jump from that bridge.  So he walked up to the would-be suicide, shook his hand and then pushed him off the bridge.  The victim landed on a partially inflated air cushion, suffered only back and wrist injuries.  After calling the man selfish, the pusher, Lian Jiang-Sheng, was arrested. 

Number one, best insane idea, a second Tour De France cycling race, which will begin in the city of Nance on June 4th.  It will cover 1,400 miles.  It will make stops in 17 French cities, 196 competitors and 124 supervisors.  Supervisors?  On nearly a one-to-one ratio?  This is the French Prisoners Tour de France; 196 prisoners cycling 1400 miles.  The 17 stops are all in cities with prisons in them. 

Says one cyclist identified only as Daniel, quote, it‘s a kind of escape for us, a chance to break away from the daily reality of prison.  What could possibly go wrong? 

(COMMERCIAL BREAK)

OLBERMANN:  Good news this weekend for Republicans who say they want bipartisanship in Washington, we now have some opposition to torture that‘s bipartisan, and some support for closing Guantanamo Bay that is bipartisan.  Or we would have that bipartisan agreement if the Republican party leaders actually respected the opinions of those party icons they claim to respect. 

Our third story tonight, two popular Republican figures this weekend supporting President Obama over former Republican Vice President Cheney and current party leader Boss Limbaugh.  General Petraeus, appointed commander of US Central Command by President Bush, has long been extolled by the right wing as the epitome of military and strategic wisdom, never more so than when he advocated for the surge of U.S. troops in Iraq. 

On Sunday, he was asked about the claim that America‘s struggle against terrorism is hurt by closing Guantanamo and ending so-called enhanced interrogation techniques. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  In your view, does the closing of Gitmo and the abandonment of those techniques complicate the U.S. mission in Iraq, Afghanistan and in the overall struggle against violent transnational extremists groups or does it help it? 

GEN. DAVID PETRAEUS, US ARMY:  I think, on balance, that those moves help it.  In fact, I have long been on record as having testified and also in helping write doctrine for interrogation techniques that are completely in line with the Geneva Convention. 

With respect to Guantanamo, I think that the closure, in a responsible manner, obviously one that is certainly being worked out now by the Department of Justice—I talked to the attorney general the other day.  They have a very intensive effort ongoing to determine, indeed, what to do with the detainees who are left, how to deal with them in a legal way, and if continued incarceration‘s necessary, again, how to take that forward. 

But doing that in a responsible manner, I think, sends an important message to the world, as does the commitment of the United States to observe the Geneva Convention when it comes to the treatment of detainees. 

(END VIDEO CLIP)

OLBERMANN:  Former Bush Secretary of State General Colin Powell also speaking Sunday, also a more popular figure in his party either than Mr.  Cheney nor Mr. Limbaugh, also supported Mr. Obama‘s position over theirs, pointing out that Cheney and Limbaugh are not merely at odds with President Obama, but with both Obama and former President Bush, who stopped using the worst torture techniques on his own years ago, and who publicly stated numerous times that he, too, hoped to close Guantanamo Bay. 

With us now, MSNBC political analyst Jonathan Alter, also, of course, senior editor at “Newsweek Magazine.”  Thanks for coming in, Jon. 

JONATHAN ALTER, “NEWSWEEK”:  Hi, Keith.  

OLBERMANN:  General Petraeus, commander at US Cent Com, says on camera, on the record, that ending torture and closing Gitmo will help the United States.  What is the closest thing that the right has to a trump card capable of refuting those conclusions from that guy? 

ALTER:  Well, maybe Joe Lieberman, I don‘t know.  They don‘t have anybody, because this is the most respected military commander we‘ve had in our country since Dwight D. Eisenhower and George Marshall.  There is nobody in between them, not Norman Schwarzkopf or any of the other military heroes who approaches General Petraeus‘ status. 

He was right, and many of us, including me, were wrong about the surge.  It worked.  And—and history will render a positive verdict on him for that.  Does he get credibility with the Republican base for the fact that he was so right on that, on these other issues?  Of course not, because they will continue to do what‘s convenient for them. 

OLBERMANN:  But the question of credit versus the question of how quickly he would become a target.  How much time does he have left?  How many more comments like that he would have before they start saying, well, this is not the Dave Petraeus we knew?  This is not the one we trumped up and trotted out in front of the Senate and said, do President Bush‘s bidding. 

ALTER:  It‘s possible that within the next couple of days, you know, Rush could say, well, I don‘t agree with him on this and they could conceivably turn on him.  But the focus here should be on Cheney.  What Cheney has done is to lay a trap for Barack Obama.  It‘s quite possible that we will be attacked sometime in the next eight years.  That‘s—eight years is a long time to go without any of our many enemies trying to launch some kind of attack on us. 

At that point, Cheney and his minions will say, I told you so.  If you had done it our way, then we wouldn‘t have been attacked.  That will be their argument.  At that point, when they politicize it, which I assure you they will, it is very important for progressives to come back and say, no, it was you who weakened the United States, as General Petraeus said. 

You—it was you, Vice President Cheney, who created a recruiting poster for al Qaeda with Gitmo and with a torture policy that made an attack more likely.  But we will, I think, have to fight fire with fire, so to speak, after initially hoping to keep it non-political.  You hope after an attack, if god forbid there were one, that there would be a non-political response.  But the moment at which Cheney politicizes it—and believe me, he will, if, God forbid, we‘re attacked—it‘s very important to come back with General Petraeus and the other arguments. 

OLBERMANN:  I was going to say, you have Petraeus.  You have Colin Powell.  And I think the last top three military heroes of the last generation certainly since the Eisenhower era, those might be the top three.  And you have two of the three of them politically active at this point, to some degree or just active in the military, who are saying no, no this is the right call, and saying it in advance and in full knowledge of the possibilities that you suggest. 

ALTER:  Yes.  It is some good ammo on the anti-torture, close Gitmo side of the argument.  And it‘s important that it I think be used now to try to get the president out of this trap.  That‘s what—even some of his own people are calling it.  They believe that Cheney has essentially laid a trap for them, that even though in the head-to-head last week, the president was more appealing—he‘s much more popular than Dick Cheney—but that should we be attacked, they will say I told you so.

OLBERMANN:  In the interim, though, is there not something—is the price not too much for the Republican party to position itself with Dick Cheney as the party waiting for this country to be attacked and hoping to say I told you so? 

ALTER:  That‘s where they are right now as a party on national security issues.  That‘s not to say that they hope this happens or anything of that kind, you know.  They don‘t want an attack.  But they—should there be one, they are positioning themselves to exploit it politically. 

OLBERMANN:  Wow.  That is a dangerous roll of the dice, especially in the wake of this hypothetical attack you talk about.  It seems hard to believe they could get away with it, but we‘ve seen that before. 

ALTER:  I don‘t think they will get away with it because I think our

politics have now changed.  And I don‘t think Democrats are as wimpy when

it comes to standing up for themselves.  Their first reaction should be,

let‘s not politicize this.  I‘m not suggesting progressives go nuclear on

this, you know, right after—if, again, God forbid, there were an attack

right after that attack. 

But, should they do this, should the Cheney argument be rolled out—and I can‘t believe it won‘t be—at that point, the Democrats need to respond in kind with an argument about who‘s really to blame for weakening our position in the world? 

OLBERMANN:  Yes, two grim options.  Jon Alter of “Newsweek” and MSNBC, as always, thanks for coming in. 

ALTER:  Thanks, Keith. 

OLBERMANN:  He ain‘t General Petraeus, but what this man had to say about torture may resonate nearly as loudly.  He will join us.  For the second time in one week, a right-winger defends water boarding on the premise that we only did it to three people, the Goldilocks defense.  I wonder if that would work for DUI too.  Worst persons ahead. 

And when Rachel joins you at the top of the hour, just how liberal is the Supreme Court nominee.  She will hash that out with her special guest, Senator Barbara Boxer of California. 

(COMMERCIAL BREAK)

OLBERMANN:  Water boarded to prove it wasn‘t torture and now admitting it is.  He joins us next. 

But first time for COUNTDOWN‘s number two story, tonight‘s worst persons of the world. 

The bronze to David Zurawik, a television blogger for the “Baltimore Sun,” insisting on CNN, quote, “I don‘t want to overstate this,” and then saying my work is, quote, “really that path lies fascism.  He is saying mad man stuff.  Even Rachel Maddow,” he continued, “who‘s the nicest, with her snide smile and arched eyebrow and mocking, they target people and hold them up for ridicule.  It‘s exactly what happened in propaganda in the ‘30s in Europe.  I‘m not kidding you.” 

No, more accurately, he‘s kidding himself.  Instead of analysis of TV news or insider information, his blog, is time after time, simply louder and louder versions of the previous one based on what he does and does not like politically.  Mr. Zurawik‘s screams about this network and its hosts have been so many and so hysterical that he must either be a blind ideologue or on the take.  There‘s also something embarrassing here; he‘s also offered recent critiques of what stories MSNBC should and should not cover, and how it should make other editorial and news room and even financial decisions, which is somewhat ironic, considering Mr. Zurawik is among those who have turn the “Baltimore Sun” from the finest newspaper south of Delaware into the wards of the bankruptcy referee. 

The runner-up, Pete Hegseth, the chairman of the conservative group Vets for Freedom, and a contributor to the “National Review” Online, with this comment: “laying aside the debate over what is and what isn‘t torture, it‘s hard to argue with eight-plus years of safety since 9/11.”  Swing and a miss; eight plus years wouldn‘t be until like late November this year, when it would be eight years and a day since the death of the last Anthrax victim, or 9/11 was in May of 2001, or Mr. Bush wasn‘t present during 9/11.  As the blogger Atrius note, “NRO contributor attempts to count to eight, fails.” 

But our winner, Laura Ingraham of Fixed News.  Another swing and a miss.  Complaining that in the president‘s speech last week, quote, “rather than specifically spelling out how his policies have made us safer, the president assailed the enhanced interrogation techniques used on three, counts them, three detainees.” 

Three detainees at least 267 times.  Dick Cheney used this argument, too; we only did it to three people, the Goldilocks defense.  Now, Mr.  Cheney has an excuse.  His degrees are in political science.  But Laura Ingraham is a lawyer.  Since torture is illegal and water boarding is torture, and I only did it to three people is an acceptable excuse; if someone broke into her house and committed 83 acts of threat, then broke into her neighbor‘s house and rearranged the photos on her wall for 183 charges of criminal mischief, and then broke into a third house and flooded the floors just once with garden hoses, the defense I only did it to three people would be enough to absolve him legally? 

Laura Ingraham of Fixed News, today‘s worst person in the world.

(COMMERCIAL BREAK)

OLBERMANN:  Sean Hannity‘s only response thus far to being called on failing to live up to his promise to be water boarded for charity was to disparage his own guest, Jesse Ventura, for volunteering to do the water boarding.  In our number one story, somebody who thought water boarding was not torture decided to put his theory to the test.  Chicago radio host Mancow, Erich Muller, will join us in a moment. 

Presumably, you saw this last Friday from his radio show, water boarded, lasted exactly six seconds, before calling it off, announcing it torture, and based on his own experience, it was more than that.  It was drowning, and it was even more than that.  If he was being interrogated using this technique, he would have confessed to anything. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  We‘re going to do it on five, OK? 

ERICH “MANCOW” MULLER, WLS RADIO HOST:  OK. 

UNIDENTIFIED MALE:  One, two.  I lied.

UNIDENTIFIED MALE:  Ooh, water. 

MULLER:  All right.  That‘s it, that‘s it.  All right. 

UNIDENTIFIED MALE:  Oh, god. 

UNIDENTIFIED MALE:  Mancow is soaked. 

UNIDENTIFIED MALE:  Would you consider that torture?   

MULLER:  Look, all that‘s been done to this country—and I heard about water being dropped on someone‘s face.  And I never considered torture—even when I was laying there, I thought, this is going to be no big deal; I go like swimming.  It is going to be like being in the tub.  It is such an odd feeling to have water poured your nose and your mouth with your head back. 

It was instantaneous.  I thought I could hold out 30 seconds, 60 seconds.  It was instantaneous and—and, uh, I don‘t want to say this.  I do not want to say this, absolutely torture.  Absolutely.  I mean, that‘s drowning. 

(END VIDEO CLIP)

OLBERMANN:  Joining us from Chicago, the host of his own morning show on WLS radio there Mancow.  Good evening, sir. 

MULLER:  Keith, good evening. 

OLBERMANN:  Let‘s stipulate at the beginning, you and I are not going to agree about anything politically.  So we‘ll just set that aside and focus on what you went through.  Congratulations on -- 

MULLER: Isn‘t that sad you would say that, though? 

OLBERMANN:  But I can congratulate you on doing this.   

MULLER:  Yes.  Let‘s find common ground. 

OLBERMANN:  Yes. 

MULLER:  First of all, Sean Hannity called me and said it‘s still not torture.  I said, Sean—he is a friend of mine—it is torture.  All right.  But, look, you are giving 10,000 dollars to the Veterans of Valor.org.  So I think you are stand-up guy for doing that.  That‘s why I‘m sitting here.  Thank you. 

OLBERMANN:  That‘s our common ground.  I think you are a stand-up guy for lying down in that case. 

MULLER:  Now let‘s fight.  Now let‘s fight. 

OLBERMANN:  Throw out the legalities and the ethics of this thing.  You said you would have confessed to anything to make it stop.  And then the scenario that everybody who approves of this -- 

MULLER:  Yes. 

OLBERMANN:  -- likes to use, there is a bomb somewhere; it‘s going off in 15 minutes, so you water board the guy to find out where it is.  Can you, having gone through this, trust you would get the right answer? 

MULLER:  Keith, the honest answer is I don‘t know.  Look, if I had information, I‘m sure I would have given it up.  I would have said anything to make it stop. 

Look, you said something incorrectly.  And I think everyone has.  They compare it to drowning.  Now, I drowned as a kid and I had to be revived.  And I‘ve also been white water rafting, if you ever have had that sensation of being caught under water. 

This is worse.  This isn‘t gulping for air.  This is your brain is shut off.  This is water at the back of your skull, a gallon of water poured down my nose.  I had a Marine do it.  And I mean it was good night, Irene, game over. 

So, look, I was laughing about this.  This was a stupid radio thing.  And I thought I could go 30 seconds.  I hold my breath, big deal, they sprinkle water.  It is a big deal and it‘s torture.  I guess that‘s why you are having me here tonight. 

OLBERMANN:  Why did you not know this beforehand?  Why did you not believe it was—I‘m not denigrating it, but -- 

MULLER:  Yes. 

OLBERMANN:  Is it the word?  It sounds like, oh, snow boarding.  Should we have called it something else?  Should we call it drowning or something worse than that. 

MULLER:  You know, well—but I don‘t think drowning is harsh enough. 

OLBERMANN:  Wow. 

MULLER:  Yes, I think water boarding sounds like, you know, water boarding USA, like Brian Wilson and the Beach Boys could do a song about it.  Look, I see the video; you have shown the video, the sprinkling of the water, big deal.  They said, what was your psychological state?  I was laughing at it.  I was willing to prove and ready to prove that this was a joke.

And I was wrong.  It was horrific.  It was instantaneous.  And, look, I felt the effects for two days.  I had chest pains.  I told my wife—I have two little kids.  We prayed.  I said, dear god, help me.  I had chest pains.  I was so stressed out by this. 

Look, I have a silly little radio show.  We entertain people in the morning.  But, this—so, I wasn‘t expecting this.  Um—

OLBERMANN:  But—

MULLER:  You know, even that—even that video right there you are showing, I‘m sure people are thinking, ah, big deal.  That‘s way thought.  I understand.  Until you do it, you have no idea. 

OLBERMANN:  Presumably your listeners going in agreed with you that that wasn‘t torture.  What has their reaction been to this?  Have they given you flack for calling it what it is? 

MULLER:  You know what, they appreciate honesty.  This is the thing, you and I, we‘re going to hate each other.  First of all, I‘m a Libertarian.  I‘m a live and let live kind of guy.  I don‘t believe these soldiers were doing it to get their jollies.  This isn‘t like bamboo shoots under the nails.  This isn‘t like cutting off heads. 

I believe they had our country in mind, OK.  So, look, we care—you and I, all of us, we care about America.  And maybe there‘s a better way to do things than this.  But, my listeners, you know, they accepted it.  They took it in.  They were laughing along with me and they went, wow, if this guy, who said it isn‘t torture for so long says it is, there‘s something to it. 

OLBERMANN:  That‘s why we had you on because it‘s—there‘s a genuine experience quality to this that the rest of us can‘t have.  And I hope nobody does, because, as you suggest, nobody should go through this.  It‘s as simple as that. 

We‘re out of time, Mancow on WLS, the famous WLS radio in Chicago. 

Well done, thanks for your time. 

MULLER:  Thank you, Keith. 

OLBERMANN:  That‘s COUNTDOWN for this the 2,217th day since the previous president declared mission accomplished in Iraq.  I‘m Keith Olbermann, good night and good luck.

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

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