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'The Rachel Maddow Show'for Tuesday, May 26

Read the transcript to the Tuesday show

Guests: Dahlia Lithwick, Barbara Boxer, Byron Dorgan, Eugene Robinson, Kent Jones

RACHEL MADDOW, HOST:  And thank you for staying with us for the next hour.

Senator Barbara Boxer does join us in studio in just a moment, as well Senator Byron Dorgan later on this hour.  Gene Robinson, fresh off his Pulitzer Prize, will be here this hour.  And Dahlia Lithwick from Slate.com will be here as well.

There are lots to come.

But we begin tonight with the future of the United States Supreme Court.  Today, at the White House, President Obama introduced appeals court judge, Sonia Sotomayor, as his pick to replace retiring Supreme Court Justice David Souter.

And as always, the easiest way to understand what this means, to understand the convergence of politics and governance and the judiciary is with a cocktail metaphor.  Imagine the Supreme Court is a cocktail.  Imagine the Supreme Court specifically is a whiskey sour.

Here‘s how whiskey sour works.  There are three components: booze, in this case whiskey, lemon and sugar, to balance out the lemon.  The sour of the lemon and the sweet of the sugar balance each other out.

If you think of the Supreme Court as a whiskey sour—which I have to admit I‘d sometimes do—right now as it is currently mixed, it is not that tasty a drink.  It does not have the right balance.

But, say, the sugar in this drink are the conservatives: Antonin Scalia, Clarence Thomas, Samuel Alito, John Roberts—ideologically rather rigid conservatives who essentially never surprise anyone.  They do not divert from the conservative line.  They are predictable, solid, a homogeneous conservative block.

Balancing them out, well, say, on the lemon side will be the liberals:

John Paul Stevens, Ruth Bader Ginsburg, David Souter—you could essentially the same thing about them as you can about the conservatives.  They are reliable, a solid voting block in their case on left, on the lemon.

Of the remaining two justices, Stephen Breyer leans liberal, Anthony Kennedy leans conservative, but they are slightly less predictable than their colleagues.  In this metaphor, we are going to call them the booze.  So, this means that our Supreme Court drink is booze and then four parts conservative sugar, and three parts liberal lemon.

So, in other words, that‘s sort of with more sugar than lemon, sort of more sweet than tart.  A little cloying.

With the retirement of Justice Souter, our drink is becoming even more sweet, even less balanced.  One of the liberals, some of the lemon, is leaving the court.

So, the question the country has been asking ever since we learn that Justice Souter would retire is whether or not the court is going to become less balanced than it is now.  Whether we are going to replace Justice Souter with another reliable liberal, with lemon, so the drink is still too sweet, but at least it‘s not getting worse, or whether we are going to make this already too sweet drink even worse by replacing our lemon with one of the other two ingredients.

Enter Judge Sonia Sotomayor, who got her grand unveiling today at the White House.  The Web site TPMDC obtained a copy of White House talking points on behalf of Sotomayor‘s nomination today.

And here‘s how they are selling this nomination—quote, “Known as a moderate on the court, Sotomayor often forges consensus, agreeing with her more conservative nominees far more frequently than she disagrees with them.  In cases where Sotomayor and at least one judge appointed by a Republican president were on the three-judge panel, Sotomayor and the Republican appointees agreed on the outcome 95 percent of the time.”

In other words, she agrees with conservatives more often that she disagrees with them.  She‘s with them 95 percent of the time.  The “Sotomayor is a moderate” mantra was repeated over and over and over again on TV, on nomination day one today by White House officials.

(BEGIN VIDEO CLIP)

ANITA DUNN, WHITE HOUSE COMMUNICATIONS DIRECTOR:  This nomination is being viewed as one that people on both sides of the spectrum can praise.  She‘s been confirmed twice by the United States Senate, nominated first by President Bush for the district court.

VALERIE JARRETT, WHITE HOUSE SENIOR ADVISOR:  She‘s worked for a private firm, doing complex litigation, international law, then being appointed by a Republican, I might add, George H.W. Bush.

DAVID AXELROD, WHITE HOUSE SENIOR ADVISOR:  Judge Sotomayor was appointed first by George Bush, and she got quite a few Republican votes when she was nominated to the circuit court including Jesse Helms, including your friend, Rick Santorum.

(END VIDEO CLIP)

MADDOW:  She was supported by Jesse Helms and Rick Santorum.  She‘s a conservative‘s dream.

Despite a huge Democratic majority in the Senate and even bigger Democratic majority in the House, the Democratic president who won in a landslide is selling his Supreme Court pick by saying that she‘s conservative.  In other words, don‘t worry, America, adding her to the mix of this already too sweet drink will do nothing to bring it back into balance.  If you want some more lemon to balance out all that cloying, hangover-inducing sugar, you are not going to get from this nominee.

The questions now are: Whether Sonia Sotomayor is as conservative, as moderate as the White House says she is, and how are D.C. politics so divorced from the rest of America, so divorced from even the rest—the results of the last two elections that the prospect of making the court less conservative, making the court more balanced is out of the question.  Full confirmation debate is framed as an inquiry into whether or not the president‘s nominee is conservative enough to be seated on the nation‘s highest court.

Joining us now is Democratic Senator Barbara Boxer of California.

Senator Boxer, thank you for joining us tonight and thank you for sitting through my lame “Supreme Court as drink” metaphor.

SEN. BARBARA BOXER, (D) CALIFORNIA:  Well, I will never look at a whiskey sour again without thinking of this unbelievable comparison.

(LAUGHTER)

MADDOW:  It was a little farfetched.  But, you know, you‘ve got to be ambitious, right?

BOXER:  It was very original.

MADDOW:  Thank you.  That‘s a faint praise.

All right.  Justice Sotomayor would admittedly liberal Justice Souter.  If she is confirmed, do you think the court would significantly move one way in either direction?

BOXER:  I think she‘s probably going to wind up in the mold of a Souter, despite some of the things that you said.  I‘ve looked at some of her rulings.  And remember, the fact is, the New York court is not conservative the way Alito is on the Supreme Court or Roberts or Thomas.  They are very, very conservative.

I think if you look at her rulings they don‘t go there.  They are pretty much common sense.  They do have that human touch to them.  I have read a number of them.

And I just don‘t think you can really predict everything with certainty.  Look at Souter.  He was considered a Republican conservative.

So, I just think, if you look at her life story—which we did today

and if you look at some of her rulings and some of the things she said, I have a good feeling about her, you know?  But no one can predict with certainty.

               

MADDOW:  On the issue of her life experience, that‘s—the politics around that are emerging to be sort of complicated and interesting.  On the one hand, she is the American dream .

BOXER:  Yes.

MADDOW:  . in so many ways.

On the other hand, we are seeing conservative groups, not so much Republican senators yet, but really conservative interest groups attack the story of her life story being used as an asset in the nomination process, saying that that—it implies that she‘s going to bring her own feelings, her own experiences to bear more than the law.

What‘s your reaction to that?

BOXER:  Well, my reaction is, that that‘s ridiculous.  We all see life through our own lens.  You see it through your life, I see it through mine.  You know that.

MADDOW:  Yes.

BOXER:  And why would it be any different on the court.  And that‘s why I think that our president said very clearly what was important to him, was not only experience—and, by the way, she brings more federal judicial experience than anyone in the last 100 years who‘s been nominated.  So, she‘s very experienced.

But the fact is, her life story will influence her.  She‘s going to have a certain feeling when she has a case that deals with disability, because she has a disability.  It‘s just the way it is.  Is it better?  Is it worse?  I think it‘s important to have diversity on the court.

That‘s why Olympia Snowe and I—Olympia is a Republican, myself a Democrat—asked the president to appoint a woman because you do see life through that different lens, not better, not worse, but important when you are sitting around a table.  And, for example, the Supreme Court had a case that dealt with strip search on a 13-year-old girl.  And it was said by—

I think it was Ruth Bader Ginsburg, how important it was there be a woman there to explain to the men what that really means to a woman.

So, not better, not worse—important distinction, different lens.

MADDOW:  Speaking of different lenses, of course, the historic import of this nomination is that this—if she were confirmed she‘d be the first Hispanic .

BOXER:  Yes.

MADDOW:  . the first Latino or Latina to be appointed to the bench, representing California with such a large Latino population.  What do you think this means for—what do you it means for race relations?  What do you think it means for political power in the Hispanic community?

BOXER:  I will tell you tonight, they are celebrating so much in the Hispanic community in my state and all over the country.  It is such a recognition that in America, our diversity is our strength.  It‘s a recognition that—yes, a woman, yes, a Hispanic, can make it to the courts based on qualifications, based on experience.  It‘s terrific and it‘s terrific for the young people.

It‘s terrific for all Americans to understand that—think about this woman‘s life story.  Her dad, I believe, that after the third grade, he had no more education, and the mom just working her fingers to the bone to give both her kids a chance.  It sends this country into soaring heights, I think, with those things.  I felt that way about our president.

And it is very important, I think, to all the children of America to understand that if they work hard, yes, they can fulfill their dreams.

MADDOW:  Let me ask you about the overall premise, again, with which I sort of introduce this discussion, and that is the idea that the court does lean right right now.  And you described Sotomayor as somebody who maybe hard to predict, like a lot of justices are hard to predict in terms of how they‘ll rule.

Do you think it‘s appropriate either—would have been appropriate for this nomination, will be appropriate for further nominations to pick somebody who is predictable?  For President Obama to choose somebody who will be reliably a liberal on a court that has a lot of people who are unabashed conservatives?

BOXER:  Well, I actually said I thought she would be in the mold of a David Souter.  I believe that she will be—from what I know about her, what I know about her life, what I know about her work, what I see about the decisions I have looked at so far.  You can see the compassion.  You can see the understanding that when the court does make a decision, it impacts our lives.

So, I feel good about it.  But you can‘t predict anybody, Rachel, even if you take someone who‘s a total liberal or total conservative, you don‘t know.  As I said, when Souter went on, he was considered to be an absolute conservative.

MADDOW:  Yes.

BOXER:  So, I can‘t sit here tonight and promise you anything except my own judgment, that she will bring all the good qualities that we want in a justice to the high court, and that she will have a good impact, and I believe at the end of the day, will move us in a direction that is more progressive and more inclusive for the people of this great country.

MADDOW:  In your home state in California today, a huge state Supreme Court ruling .

BOXER:  Yes.

MADDOW:  . upholding Proposition 8.  More than 100 people arrested in San Francisco, demonstrations all over the state.  What‘s your reaction to the state‘s Supreme Court ruling today and what do you think happens next in the fight for same-sex equality?

BOXER:  I put out a very detailed statement.  But just to summarize how I feel, I believe the court was right the first time when it said that under the laws, that there ought to be marriage equality.  I applauded them.  I though Ron George, a Republican, Rachel, who wrote this eloquent decision, just saying that you have to have the same rules of marriage in our state for people who want to get married and you shouldn‘t discriminate.  That was important.

Prop 8 was very divisive.  I think, in some ways, we weren‘t really prepared for what happened.  We didn‘t think it would happen.  And now, I think, this decision, you know, it‘s the good and the bad.  The good part is, if you got married before this decision, you can stay married.

But the really awful truth is that, that‘s really, I think, telling all the other people that they can‘t get married when 18,000 couples did.  That sets up a terrible mess and a nightmare and we‘re going to have to go back to the ballot and I believe say—to the people of California, listen, whatever your feelings are on this, you can‘t have separate rules.  Ipso facto, that‘s separate but equal, it‘s not right.

And so, I‘m hopeful we can straighten this out.  So, it‘s a tough, tough decision, and I‘m very disappointed.  Frankly, you know, it was a six to one decision.  But if you read the California Constitution, it basically says that everyone has equal rights and equal protection under the law.  So, I don‘t know why they went this way.

But the fact is, they did it because of Prop 8 and we‘re going to have to have another battle in California.  And this time I hope that people of goodwill will come together across party lines across the state and say—in our state, you know, everyone must be treated equally.  And I think that is something that I‘m going to work very hard on, Rachel.

MADDOW:  There‘s certainly a lot more energy on the issue than there ever was before.

BOXER:  Yes.  Definitely so.

MADDOW:  Democratic Senator Barbara Boxer of California—it‘s such a pleasure to have you here in studio.  Thank you for coming.

BOXER:  Thanks, Rachel, for having me.

MADDOW:  Nice to see you.

BOXER:  And you.

MADDOW:  Sensing an opportunity to rally their troops, conservatives wasted no time pouncing on Sonia Sotomayor today.  Activist judge, be afraid, oh, no empathy.

The always credible Karl Rove called her an unabashed liberal.  So, is she a liberal, abashed or otherwise?  Dahlia Lithwick from Slate.com will join us next with actual legal analysis of what counts as the left these days in D.C. and in the judiciary.

But first, One More Thing about Sonia Sotomayor.  There is one troubling entry on her otherwise very impressive resume, especially for fans of the Boston Red Sox, the New York Mets, or almost any other Major League Baseball team.

(BEGIN VIDEO CLIP)

PRES. BARACK OBAMA, UNITED STATES:  She was raised in a housing project not far from Yankee Stadium, making her a lifelong Yankee‘s fan.  I hope this will not disqualify her in the eyes of the New Englanders in the Senate.

(LAUGHTER)

(END VIDEO CLIP)

MADDOW:  That‘s not actually funny at all.  The Yankees.  Are you serious?  Really?

(COMMERCIAL BREAK)

MADDOW:  Where there was unethical smoke around Roland Burris of Illinois, there appears tonight to be some potential unethical fire.  Senator Burris was infamously appointed to replace former Senator Barack Obama, who got a new job.  Burris was appointed by then amazingly still Governor Rod Blagojevich.

After we all heard from Governor F-word on federal wiretaps about what he appeared to expect in return for the Senate appointment, tonight, the transcript of a just released FBI wiretap reveals that Roland Burris and Rod Blagojevich‘s brother had the sort of phone conversation you‘re probably not really allowed to have.

According to “The Associated Press,” on the tape, Burris repeatedly expresses his desire to fill President Obama‘s vacated Senate seat.  When “Brother Blagojevich” then appeals for money, Roland Burris says, quote, “I will personally do something.”

So, we have quid.  There appears to be quo.  If we have quid pro quo, then we actually have a legal problem here.  We asked Senator Burris to be on the show again tomorrow to give us his explanation for these tapes.  I very much hope he says yes.

(COMMERCIAL BREAK)

MADDOW:  Judge Sonia Sotomayor had not even been introduced as a Supreme Court nominee when the here-we-go-again attacks began again.  Conservative activists are, of course, denouncing her as a liberal, which is politically understandable and predictable.  It does however not appear to be at all borne out by her record.

On the issue of abortion, for example, in 2003, she upheld the Bush administration‘s global gag rule.  That‘s the policy of withholding funds for international groups that offer family planning information and services, including abortion.

On the issue of discrimination, she has frequently ruled against plaintiffs.  For example, ruling in 2004 against African-American corrections officers who said they were retaliated against for filing discrimination complaints.

On claims against big business, Sotomayor is herself a former corporate lawyer.  In the year 2000, she wrote the dissent in a two-to-one decision that ultimately favored victims‘ families.  This was concerning the 1996 crash of TWA Flight 800 off of Long Island.  Sotomayor wrote that the crash had not occurred within U.S. territorial waters and that, therefore, victims families should not have had the right to sue the airline for extra damages.

Again now, she was the dissenting view in this case.  And she wrote that the judges who disagreed with her were ignoring legislative history and early case law, saying that their decision was, quote, “clearly a legislative policy choice, which should not be made by the courts.”

Does this sound like the record of an unabashedly liberal activist judge to you?

Joining us now is Dahlia Lithwick, senior editor for Slate.com.

Dahlia, thank you very much for coming back on the show.

DAHLIA LITHWICK, SLATE.COM:  Thank you for having me.

MADDOW:  I‘m the only person in America who‘s pointing out that Judge Sotomayor is not all that liberal.  At least it feels that way.  People who are looking into the actual case law here in her record, are—does her actual record bear any relation to the names that she‘s being called in the political arena today?

LITHWICK:  No.  And I think you made a really good point before, which is, this is the pileup, Rachel, of the identity politics piece with her actual record, which no one wants to look at.  It‘s just become very easy on the political right to say, “Oh, Obama picked a great story,” over someone with an impressive judicial record, rather than saying, actually, he managed to do both.  We should credit him with that.

So, I think you‘re quite right.  They are going after her on the empathy thing and on the great life story thing.  Funny, Clarence Thomas has a great life story counted as a plus for him.  But for Sotomayor, it somehow suggests she‘s unhinged.

MADDOW:  Well, what is your assessment specifically of that empathy criticism?  I mean, conservatives are saying that Obama is looking for a justice, and in Sotomayor, he has found a justice who will substitute her feelings for the law.  And I have to wonder, if that‘s just kind of obvious, you know, anti-woman politics or if that‘s crazy Supreme Court partisan politics jargon that has a totally different meaning than we would understand those words to mean in the real world?

LITHWICK:  Well, two things, Rachel.  The first is—so much of this is anti-woman politics.  I mean, so much of this has larded up with talk of her being a bully and aggressive—the kind of things that she does on the bench that Scalia can get away with, but she can‘t.  But I think your second point is really key, which really is that this is—this is kind of empathy being massively distorted by the right to mean bias.

When Obama talked about empathy in “The Audacity of Hope,” he was very, very clear.  He didn‘t want judges to make stuff up so that the poor guy wins.  What he said is, put yourself in the other person‘s shoes, right?  That was his mom‘s credo.

When he talks about empathy, I think all he‘s saying is, just listen.  Listen to what the other side is saying.  See if there is merit to their argument.  And then think it through.

It‘s a process question for him—empathy, it‘s not results-oriented.  And I think that‘s massively upended, to mean and what you‘re hearing today is, “Oh, she is results-oriented.  Oh, she cares is giving the little guy a fair shake.  She loathes white men.”

That‘s not what Obama meant when he talked about empathy, it certainly not something that‘s reflected anywhere in a hundreds of cases if you look at her record, that this is a person who upends the rule of law to give the little guy an extra leg up.

MADDOW:  On balance, on the question of whether or not she will move the court in either direction, when you look at her record, Dahlia, do you think that she will be sort of where Souter?  Do you think she‘ll be to the left?  Do you think she‘ll be to the right of Souter?

LITHWICK:  She‘s a—I think she‘s pretty much Souter.  I think that if you look at her record—and I spent the day viewing it—she‘s pretty text based.  She looks at the statutes.  She looks at the precedent.  She‘s kind of—she‘s kind of really a very moderate liberal.

Now, one the second circuit, she‘s on the liberal half.  On the Supreme Court, she‘ll also be on the liberal half.  But the notion that she‘s kind of Scalia in a dress just could not be further off.  I mean, she is not the liberals‘ answer to Scalia or John Roberts.  She is very, very much a moderate, temperate, minimalist, careful liberal.

MADDOW:  Which, of course, leaves open the question of whether liberals will ever get their John Roberts or Antonin Scalia, but that I guess will be settled by the next nominee.

Dahlia Lithwick, senior editor at Slate.com—thank you so much for your time tonight.

LITHWICK:  Thanks, Rachel.

MADDOW:  To some right wing group, Sonia Sotomayor more than just a Supreme Court nominee to oppose, she‘s a one person fund-raising bonanza.

Coming up: North Dakota Senator Byron Dorgan will join us here in studio to break down how opposing a Supreme Court nominee could translate into big Washington fund-raising.

(COMMERCIAL BREAK)

MADDOW:  Still ahead: Pulitzer Prize winning columnist Eugene Robinson will be here to talk about code language being heard in opposition to the first Latina Supreme Court nominee.  And, in highly unrelated news, my friend Kent Jones joins us with the big upset in the world of competitive beard-growing.  Stay with us.

But first, it‘s time for a couple of holy mackerel stories in today‘s news.

As discussed with California Senator Barbara Boxer just moments ago, the California State Supreme Court today ruled six-to-one to uphold the ban on gay marriage that Californians voted for in November.  Proposition 8, the gay marriage ban remains in effect.  Awkwardly, the 18,000 same-sex couples married who were married in the brief California interregnum in which same-sex marriages were legal, those 18,000 marriages are still legal.  So, gay marriage is illegal, but 18,000 individual gay marriages are legal.  That was a complicated State Supreme Court action today.

Do you want to see the reaction today?  Thousands of people in over 100 locations nationwide took to the streets to protest the gay marriage ban in California.  These protests are being called “day of decision” rallies.  In San Francisco, over 100 people, including number of members of the clergy were arrested for blocking an intersection.  There were dozens of other California rallies in places including Sacramento, Santa Cruz and Long Beach.

Outside of California, there were protests in 30 different states, including a large one in New York City.  People marched from Greenwich Village to Union Square in Manhattan.  In Seattle, Washington, an afternoon rally was held at West Lake Center.  And in St. Louis, protesters gathered inside city hall.

Consider today‘s protests to be a sign of how much more organized and galvanized supporters of gay marriage are now compared to when Prop 8 passed back in November.  On Saturday, there will be, in effect, the kickoff rally for the fight to regain same-sex marriage rights in California.  It is being called “meet in the middle” because the rally is being held in the geographic center of California, the city of Fresno.  And if they planned it that way to get me to mention it on the show just because I‘m a huge dork for geography and maps, then mission accomplished. 

An alarming international news - despite nearly unanimous international pressure to not do so, North Korea, for the second time in less than three years, has detonated a nuclear explosion.  Their first nuclear test in 2006 was widely thought to have been a dud. 

It is not easy to measure someone else‘s nuclear explosion, but very rough measurements taken by seismographs, the things that measure earthquakes, estimated that the latest blast yesterday was less of a dud than the one in 2006.  It may have been a quarter of the size of the explosion at Hiroshima, which happened about 60 years ago. 

One of the ways they will try to get more precise information about the size and character of the North Korean nuke is to check for the release of radioactive particles into the atmosphere. 

You do that sort of checking by plane, which may be why North Korea today followed its nuclear tests by shooting off a bunch of surface-to-air and surface-to-ship missiles, presumably to dissuade anyone sniffing around too closely. 

The Obama administration has reacted by calling for new international sanctions against North Korea.  And yes, to add to the drama, we are only nine days away from the start of the trial of those two American journalists who are being held prisoner in North Korea.  We will keep you posted on all these developments, I promise. 

And finally, in the Canadian government, there is a job called governor general.  It is neither governor nor general.  It‘s a ceremonial post that serves essentially to remind everyone that Canada is part of the British Commonwealth. 

The governor general is the queen‘s representative in Canada.  It‘s usually a very low-profile job but not anymore.  The current governor general is Michaelle Jean.  In an act of protest against the European Union ban on seal products, the governor general yesterday publicly cut out and ate the raw heart of a just slaughtered seal. 

Ms. Jean attended an Inuit community festival late yesterday when, using a traditional blade, she helped to slaughter a seal and then asked if she could please eat some of the heart, raw, which she then did. 

Don‘t be grossed out, though.  “The Ottawa Citizen” newspaper notes that, quote, “After eating the heart, Jean wiped her blood-soaked fingers with a tissue.  There was wiping.  There was a tissue.  Why are you so squeamish?

(COMMERCIAL BREAK)

MADDOW:  Today was episode one in the many-part series, “GOP in Opposition, Sotomayor Edition.”  And the Republicans in the Senate, Mitch McConnell, John Cornyn and Orrin Hatch and others, who actually have to get elected again at some point - they today talked rather soberly about the responsible use of the advice and consent process and about the fair and thorough confirmations hearings to come. 

Such restraint.  But there are others engaged in this fight who are taking another tack entirely.  Can we actually - can we turn off the lights for a second.  Can we do the scary lighting thing?  Can we do that?  OK.  Ready?

Judge Sotomayor is a liberal judicial activist of the first order who thinks her own personal political agenda is more important than the law as written.  She‘s a radical pick that divides America.  She believes the role of the court is to set policy which is exactly the philosophy that led to the Supreme Court turning into the national abortion control board. 

President Obama abided by his dismal and lawless empathy standard.  This is someone who clearly was picked because she is a woman and Hispanic, not because she was the best qualified. 

OK.  I‘m actually sort of freaking myself out.  Can we turn the lights back on?  Thank you very much.  Now, I‘m having nightmares about myself. 

Those were all statements made today by conservative groups, not senators, but conservative groups opposing the nomination of Judge Sotomayor.  Historically, for the nine current justices, it has taken an average of about 73 days to get confirmed.  That means it will probably be less than 73 days before we see the first anti-Sonia Sotomayor ad featuring this soundtrack. 

(MUSIC)

Be afraid.  Sonia Sotomayor is not objectively particularly liberal.  Her academic bona fides - you know, Phi Beta Kappa, Princeton summa cum laude, Yale law review.  These are not the kinds of things that are handed out to fill nonexistent quotas, seriously. 

So what explains these overly excited, gun-jumping scare tactics from conservative activists about her?  It may be the fact that a fight over an Obama Supreme Court nominee, frankly any Obama Supreme Court nominee, is considered to be fundraising nirvana for part of the conservative Washington establishment that feeds off of stuff like this. 

Don‘t take it from me.  They are not exactly hiding it.  The day after the news broke about Justice Souter‘s retirement, conservative fundraiser, Dan Morgan, told “CQ Politics” this, quote, “This is a nuclear weapon for the conservatives out there.  When you do fundraising, there is an emotional component in this.  And boy, the emotion is there magnified times 100.  The Supreme Court is great.  That‘s going to be mail.  That‘s going to phone calls.  The clients I work with are in meetings already.  There are letters being written already.”  That was the day after Souter announced his retirement. 

Joining us now is Sen. Byron Dorgan, Democrat of North Dakota.  He has a new book out which is called “Reckless: How Debt, Deregulation and Dark Money Nearly Bankrupted America and How We Can Fix This.”  Sen.  Dorgan, it‘s so nice to see you.   Thank you for coming and being on the show. 

SEN. BYRON DORGAN (D-NC), AUTHOR, “RECKLESS!”:  Thank you, Rachel. 

Good to be here.  Thank you.

MADDOW:  And thank you for enduring the whole flashlight thing. 

DORGAN:  That was fun to see from this side.  You know, the profile

and the lights -

MADDOW:  It‘s terrifying.  I‘m sorry.  I have to ask you first if you think that the Senate is likely to confirm Judge Sotomayor for the Supreme Court? 

DORGAN:  I think so. 

MADDOW:  Do you think so?

DORGAN:  I think so.  You know, she is well qualified.  She has a very distinguished record.  She was appointed by the first President George Bush, or nominated I should say.  She‘s been nominated twice, confirmed twice by the U.S. Senate. 

Unless there is something that we don‘t understand, something that‘s extraordinary, I don‘t think there is much question that she will be confirmed. 

MADDOW:  Is the effort by conservative interest groups to try to make as much hay as possible out of this nomination, not necessarily stop her, but I think in order to raise their own profile, to raise money.  Do you think that‘s a symptom of a larger problem of special interest - sort of special interest money machine in Washington? 

DORGAN:  I mean, part of this is stirring the pot, which is always the case.  You know, stir the spot, get the other side exercised, raise some funds, have a big fight.  I mean, that is part of what - there is a whole industry that‘s geared up to do that. 

And part of that is fundraising.  And so, it‘s not unexpected.  I kind of - you know, you think over these years, we‘ve developed now a mind set about the Supreme Court being us versus them - whoever us and whoever them are.  You know, that‘s not the way the Supreme Court ought to be. 

MADDOW:  And it‘s not the way that it always either, not even in recent political history. 

DORGAN:  That‘s right.  You know, especially with modern politics, fundraising, talk radio, all of the interest groups - I mean, this really has divided the country in a lot of ways.  And all of this big issues now, each side decides to stir it up.  And there is nobody better than the far right, of course. 

MADDOW:  Let me ask you about the relationship between that us-versus-them dynamic, that sort of blue-versus-red dynamic in Washington and some of what you write about in “Reckless.”  You write about how deregulation in both the Clinton and the Bush administrations was a major cause for the current economic crisis. 

It‘s something that was not seen as a red-versus-blue political issue.  Do you think that the current president can and should lead the charge on explaining regulation, really making the case for it in terms of rebuilding the financial side there? 

DORGAN:  Yes.  Well, it is not a question of can.  It‘s - he must.  We will not fix what is wrong in this country unless we solve that question.  And you know, the action taken in 1999, Financial Services Modernization Act got rid of Glass-Steagall, all the things that were done to try to separate banking from other risk enterprises. 

When that was done, it was supported by the Clinton administration.  Graham-Leach-Bliley is actually what the three Republican legislators - but it was bipartisan.  Only eight of us in the Senate voted no. 

And if we don‘t now decide that we‘re going to get rid of this too-big-to-fail, begin to take apart at least some of the biggest institutions that steered the country into the ditch, begin regulating things like derivatives and hedge funds - if we don‘t do that, we can‘t fix what‘s wrong.  And we are destined to repeat this again. 

MADDOW:  You don‘t come from a financial services background.  But when that was being voted in 1999, your floor speeches in opposition to that legislation were eerily prescient about what was going to happen.  What sort of values and experience did you depend on to give yourself the foresight, not only vote against it, but really predict what it would cost? 

DORGAN:  Well, it wasn‘t that I was clairvoyant or smart.  I think it‘s just common sense.  I mean, I come from a town of 300 people, high school senior class of nine students.  So I actually had a great privilege to serve in the Senate. 

But on issues like this, it seems to me when you take a look at the very large banking institutions and what they wanted to do back in 1999 under what was called modernization, it occurred to me that it was just nuts.  I mean, it was going to create great peril for this country. 

One of the things that I said during my floor speech, or a couple of floor speeches, if the banks want to gamble, they really ought to go to Las Vegas.  But they ought not to be gambling with the FDIC insured funds from the American taxpayer. 

MADDOW:  The Republicans were united against the president‘s stimulus package, against the president‘s budget.  In terms of the overall argument about the economy and about taking care of families, pocketbook issues, do you think one party is winning over the other?  Do you think the Democrats are winning?  Do you think the Republicans are winning?

DORGAN:  I think both parties have a lot to answer for.  But the fact is, in the last eight years under George W. Bush, in addition to the Financial Modernization Act, which both parties supported and only eight of us voted no - but George W. Bush came to town.  And he hired a bunch of people who said, “You know what?  Regulation is a four-letter word. We don‘t intend to regulate anything.  We are going to spend years being willfully blind.” 

And then, old Alan Greenspan sitting there in the concrete Federal Reserve board saying, “I don‘t intend to do anything either because I love self-regulation.”  I mean, it really ran this country into the ditch. 

Now, our job is to try to pull it up and pull it out.  We‘ve got a lot of people in deep trouble, lost their jobs, losing their homes.  You know, we‘ve got a lot to fix in this country.  But you won‘t do it by ignoring the cause of the problem.  This is all saying if you don‘t care where you are, you are never going to be lost. 

We need to figure out exactly what has caused this and fix it so that it doesn‘t happen again.  And that is going to require this administration and this Congress to make tough decisions about things like too-big-fail, what kind of regulation is necessary, how do we regulate derivatives, hedge funds and all of those important issues. 

MADDOW:  It seems to me like even if you‘d say that both parties are to blame for what has happened, whichever party is going to be the solution here is going to get to reap political benefit. 

DORGAN:  It is our responsibility to solve this problem.  Absolutely.

MADDOW:  Sen. Byron Dorgan of North Dakota - the new book is called “Reckless: How Debt, Deregulation and Dark Money Nearly Bankrupted America and How We Can Fix It.”  It‘s a real pleasure to have you here on the show.

DORGAN:  Thanks, Rachel.

MADDOW:  Thanks.  It‘s very nice to see you.

DORGAN:  Good to be with you.  Thanks a lot.

MADDOW:  Here‘s a tip for Republicans.  When you are smearing a political opponent, be sure to call them by their correct name, not a totally different that turns out to be creepy Freudian slip confirming everybody‘s worst fears about you - Mike Huckabee.  More coming up with Pulitzer Prize winner, Eugene Robinson in just a moment.

(COMMERCIAL BREAK)

MADDOW:  Of all the over the top reaction to the nomination of Sonia Sotomayor to be the Supreme Court nominee for Barack Obama, the most double take-y of them all came from former presidential candidate turned Fox News TV host, former Gov. Mike Huckabee. 

Posted on his Huck PAC Web site, he wrote, quote, “The appointment of Maria Sotomayor for the Supreme Court is the clearest indication yet that President Obama‘s campaign promises to be a centrist and think in a bipartisan way were mere rhetoric.” 

The appointment of Maria Sotomayor - Juanita, Mirasol, Guadalupe, Carmen, whatever.  Actually, it‘s Sonia.  Steve - I mean, Mike Huckabee has now fixed the mistake on his Web site.  It‘s sort of hard to un-ring a bell.  It‘s hard to un-slip a Freudian slip. 

Here now is Eugene Robinson, MSNBC political analyst and Pulitzer Prize-winning associate editor and columnist at “The Washington Post.”  Gene, thank you for joining us tonight. 

EUGENE ROBINSON, PULITZER PRIZE-WINNING ASSOCIATE EDITOR AND

COLUMNIST, “THE WASHINGTON POST”:  Great to be here, Rachel. 

MADDOW:  Maria?  Did it have to be Maria? 

ROBINSON:  Oh, I guess it probably had to be Maria, you know.  It‘s - talk about Freudian slips.  But, you know, there‘s just going to be - we‘re going to have to watch the language, I think, you know.  We‘re going to hear a lot about a lot of the word “liberal,” a lot of the word “activist.”

I predict confidently that fairly soon, some critic will refer to her as articulate.  But you know, it‘s as if it is a shock that a woman who was Phi Beta Kappa and summa cum laude at Princeton and a federal judge and Yale law and all that can form a complete sentence.  But, you know, that‘s the way these things go, I guess.  

MADDOW:  Well, you know, she‘s the first Hispanic nominee to the Supreme Court.  It‘s a huge deal for the country.  It‘s a huge deal for Latinas and Latinos.  It‘s a huge deal for Puerto Rico.  And yet, we are sort of looking for the racial overtones and the criticism thus far. 

Do you think it‘s fair to look into the sort of anonymous sniping about her intellect and temperament through a racial lens?  Or would that be - would that criticism mean the same thing regardless of her race? 

ROBINSON:  Well, I think that criticism is just bizarre, given her record.  I mean, I - and it is odd for, you know, to hear commentary to the effect that, well, her opinions are undistinguished or we‘re not quite sure she‘s up to the job or, you know, in a few cases flat-out saying, you know, this is an affirmative-action hire. 

I mean, these are among the most sterling credentials of any nominee for the Supreme Court that I can recall, and the most kind of establishment credentials.  It kind of doesn‘t get any better than this. 

And so, it‘s kind of - it is a weird sort of route of attack given who she is and what she‘s done.  So, you know, can you look at that through a racial prism?  You know, I think if it continues, I think you probably have to.  

MADDOW:  Let me ask you about one specific comment that she‘s getting criticized for.  In 2002, she was giving a lecture at Berkeley and it was about being a Latina judge. 

And she pointed out - she said, quote, “Our experiences as women and people of color affect our decisions.  I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn‘t lived that life.” 

Tucker Carlson, our former colleague here at MSNBC, Rush Limbaugh, the talk show host - they called those comments racist.  What‘s your assessment of those comments?  And do you feel like adequate context is being given to them? 

ROBINSON:  I do not feel that adequate context is being given to the comments.  And if you look at the context of the speech, it‘s a meditation on what her ethnicity and her upbringing, what impact her life experience will have on her as a judge. 

And, duh, I mean, everyone brings life experience to everything that they do.  And so, I bring my life experience to what I do as a journalist, as do you, as does Tucker Carlson, as does everybody. 

And so, I think it was nothing more than a rather interesting statement of what is fairly obvious and what is certainly true, that her judging would be influenced in that way.  And the statement that, well, she would hope she would make a better decision, I do think that‘s out of the context. 

In context of the whole speech, she wasn‘t saying, “You know, Latina judges are necessarily better than white male judges.”  That wasn‘t the point she was making.  And I think that anyone who looks at the whole speech would certainly take away my interpretation rather than that one little clip.  

MADDOW:  Yes.  But I don‘t think that‘s -

ROBINSON:  But it‘s a fascinating thing.  Here‘s, you know, a Supreme Court nominee who is introspective, who is able to look at herself in what I think is a pretty interesting way.  

MADDOW:  Eugene Robinson, MSNBC political analyst, associate editor and Pulitzer Prize-winning columnist with “The Washington Post,” we‘re going to go ahead and post the - as much as that full speech as we can on our Web site tonight so as we can take your instruction about context.  Thanks for your time tonight, Gene.  

ROBINSON:  Great to be here, Rachel.  

MADDOW:  Thanks.  Coming up on “Countdown,” four days after concluding that waterboarding is, indeed, torture, after getting waterboarded himself, conservative radio host Mancow joins Keith. 

Next on this show, Kent Jones reports on the shocking upset this weekend in the sport of beard growing.  Sport?

(COMMERCIAL BREAK)

MADDOW:  We now turn to our facial hair club for men correspondent, Kent Jones.  Hi, Kent.  

KENT JONES, POP CULTURIST:  Hi, Rachel.  The 2009 World Beard and Mustache Championships were held over the weekend in Alaska - terribly exciting.  Let‘s take a look.  

MADDOW:  All right. 

(BEGIN VIDEO CLIP)

JONES (voice-over):  When you think Germany, you think facial hair.  Ever since the World Beard and Mustache Championship got it started in 1990, the Germans have bestowed the world of hirsute grooming like a colossus. 

Who could forget Elmar Weisser in 2007?  Or 2005?  Or Karl Heinz-Hille in 2003?  The Germans are so dominant they have never lost in full-beard freestyle competition.  But this year, on the frozen tundra of Alaska, an American stepped forward and said, “Deutschland, nein.” 

Meet David Traver of Alaska.  For 10 years, he has been training in local Mr. Fur Face competitions with one goal in mind - world championship gold. 

And this year, among the 300 goatees, Fu Manchus, ZZ Top, Crumb Catchers and other follicular masterworks, Travers‘ basket-shaped snowshoe whiskers proved unstoppable.  Judges declared David Travers the champion, becoming the first American ever to win the title Best Beard in the World. 

In your face Germany!  Until the next world beard and mustache championships, auf wiedersehen.  

(END VIDEO CLIP)

MADDOW:  It‘s like a bath mat or something.  It‘s a basket.  

JONES:  It‘s truly astounding, yes.  

MADDOW:  Wow.  Very impressive.  Great reporting, Kent.  

JONES:  My pleasure. 

MADDOW:  Thank you, Kent.  Thank you for watching tonight. 

“COUNTDOWN” with Keith Olbermann starts right now.  Have a great night. 

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

END   

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