updated 5/29/2009 3:39:21 PM ET 2009-05-29T19:39:21

Guests: Margaret Brennan, Natasha Korecki, Theodore Olson, David Boies, Michelle Bernard, Willie Brown, Sen. Amy Klobuchar, Sen. Robert Menendez, Mary Ann Ahern

CHRIS MATTHEWS, HOST:  B-Rod strikes again.

Let‘s play HARDBALL.

Good evening.  I‘m Chris Matthews, out in San Francisco.

Leading off tonight: Hot seats.  If words could kill.  Who are those people attacking the judge President Obama wants on the Supreme Court?  And why are they saying such terrible things about her?  And what about that other hot seat?  What about the guy who‘s sitting in President Obama‘s old Senate seat?  Can he say he didn‘t pay to play because he stiffed the governor on the payments?

Let‘s start with the flak flying at Sonia Sotomayor.  Is this rabble-rousing from the joy boys of radio anything more than elevator music, something to put up with as the candidate heads to her 80-plus-vote win in the Senate?  Or could she, on the other hand, prove to be the historic surprise pick who doesn‘t turn out to be the judge the president figured—you know, like the big boys of history, Earl Warren and Felix Frankfurter?

Plus, in case you missed it, let‘s look at the fall-out from last night‘s performance here on HARDBALL by Senator Roland Burris.

(BEGIN VIDEO CLIP)

MATTHEWS:  Why is it a dilemma for you if you don‘t get a Senate seat after you raise money for this guy?

SEN. ROLAND BURRIS (D), ILLINOIS (via telephone):  No, no.  That doesn‘t...

MATTHEWS:  Why is that a dilemma...

BURRIS:  Chris...

MATTHEWS:  ... if it‘s not a quid pro quo?

BURRIS:  No, it‘s not a quid pro quo.  The dilemma was the fact that I wanted to try to help the governor and I couldn‘t because I wanted to get appointed to the seat.  That‘s clear.  If I helped him, then I would be involved in some quid pro quo.

(END VIDEO CLIP)

MATTHEWS:  We‘ll preview the highlights of that interview with two Chicago reporters and ask, Can this guy survive?

An here‘s an odd couple.  Attorneys Ted Olson and David Boies, who faced off in that famous 2000 case, Bush versus Gore, over who should be president, now have found common ground challenging California‘s ban on gay marriage.  And we‘ve got them both here tonight on HARDBALL.

And is the Roland Burris case a big problem now for the man he replaced in the Senate, Barack Obama?  We‘ll explore that in the “Politics Fix” tonight.

And finally, maybe White House press secretary Robert Gibbs missed his calling as a comedian.  Just how many laughs has he gotten from reporters in his first four months at the White House?  That‘s in the “Sideshow” tonight.

But we begin with the battle over Judge Sotomayor.  Senator Amy Klobuchar is a Minnesota Democrat and a member of the Judiciary Committee, and Senator Robert Menendez is a New Jersey Democrat who heads the Democratic Senatorial Campaign Committee.

Well, let me ask Senator Klobuchar right off the bat, what do you make of these charges?  I mean, Glenn Beck is calling her a “chick lady.”  The terminology out there is really going over the top.

SEN. AMY KLOBUCHAR (D-MN), JUDICIARY COMMITTEE:  Well, you know, it is unbelievable, the name calling, the shame calling.  It just never ends.  I don‘t think it‘s a surprise.  You see this in these kinds of battles.  I think what is good is you don‘t hear this from the Republicans on the Judiciary Committee.  They have promised a thorough and civil hearing.  I think that‘s a good sign, Chris.

But you know, when you look at this woman, she is someone that not only knows the law and knows the Constitution, she also knows America.  And all of these comments about—when she has made some comments about her background and how it contributes to her understanding of the world, you see that all the time, Chris.

My favorite was the comment we found from Judge Alito in his own confirmation hearing.  When Senator Coburn asked him if his background and his immigrant background mattered to him, he actually said—I have the quote—“When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender, and I do take that into account.”  So you know, the things that they are taking out of context that she said is outrageous.

The bottom line is, you look at this woman‘s background.  She came from, in her own words, modest and humble circumstances.  She went to the top of her high school class.  She was one of the top two people in her class in college, went on to become a fearless prosecutor, in the words of her boss, into private practice, more experience on the bench than anyone that‘s sat on the Supreme Court in 70 years.

She is qualified.  And I‘m looking forward to meeting her, to asking her questions before I make a final decision.  But certainly, all of this name-calling has no place here.  This is a dignified woman.  She deserves is dignified hearing.

MATTHEWS:  Well, before we get to Senator Menendez, let‘s look at Tom Tancredo.  He, of course, ran for president last year.  Here he is talking about the candidate on “THE ED SHOW” last night.

(BEGIN VIDEO CLIP)

TOM TANCREDO ®, FORMER COLORADO CONGRESSMAN:  I‘m telling you, she appears to be a racist.

UNIDENTIFIED MALE:  Wow.

TANCREDO:  She said things that are racist.  In any other context, that‘s exactly how we would portray it.  And there‘s no one that would get on the Supreme Court saying a thing like that except for a Hispanic woman, and you‘re going to say it doesn‘t matter.

(END VIDEO CLIP)

MATTHEWS:  OK, Senator Menendez, I want to ask you—you‘re a Cuban-American.  I know—well, let‘s talk about the history here.  This is interesting that this woman is taken all this flak, even sexist terminology being thrown out there.  But a lot of this stuff just seems diminishing about her.  It just seems to paint her as small.  There‘s an interesting angle to a lot of this abuse.

SEN. ROBERT MENENDEZ (D), NEW JERSEY:  Well, Chris, I think they‘re taking an enormous risk here.  First of all, to take someone who is an American success story—grew up in the public housing projects in the South Bronx, graduated valedictorian of her high school, went on and got a scholarship to Princeton University, graduated second at Princeton, and then went on to Yale law school and became the Yale law school editor of the law review, then went on to become a tough prosecutor in Manhattan, went on to become a corporate litigator, and then to become a district court judge, a federal district court judge and a second circuit appellate judge—she will bring to the United States Supreme Court more federal experience than any Justice who has sat on the Court for 100 years.

And so all of these comments about her gender, about her ethnicity, are ways in which you cannot take a stellar record and since you can‘t find anything in that stellar record, you go through all of these other comments, which I think are debasing and ultimately are consequential to those who give it.  And it seems to be coming largely from the Republican Party, and that‘s a big consequence for them.

MATTHEWS:  Well, here‘s Rush Limbaugh spouting off on the matter. 

Here he is today.  Let‘s listen.  Just today, fresh in.

(BEGIN AUDIO CLIP)

RUSH LIMBAUGH, RADIO TALK SHOW HOST:  Look, bigotry is bigotry.  Racism is racism.  Superiority is superiority.  Contempt for people beneath you is contempt for people beneath you.  Thinking you‘re better than everybody else is thinking you‘re better than everybody else.  This woman has all of this.

(END VIDEO CLIP)

MATTHEWS:  Senator Menendez, you‘re in charge of getting Democrats more Senate seats next year.  Is this going to help?

MENENDEZ:  Well, our focus is in getting a great United States Supreme Court Justice, and President Obama has nominated such a person.  You know, when I hear Rush Limbaugh, who I didn‘t know has legal talent and legal experience, make these comments—here‘s a judge who has been universally recognized by her colleagues as a tough questioner, as someone who follows the facts and therefore follows the law and doesn‘t reach outside of the case before her to try to get to other issues that are not before the court.

She has been persistently committed to the rule of law.  And so when you can‘t ultimately affect someone‘s reputation because they have consistently worked in an exemplary way—with great intellect, I would add—then you do all these other things.

I think it‘s going to be real consequential to them.  You know, this Republican Party has to understand that tearing down a woman, tearing down a woman who happens to be Hispanic but who happens to have great intellect and a great judicial record, is going to be very consequential to them politically.

And I think look at the poll that came out today.  Overwhelmingly, the impression of Americans of Judge Sotomayor is what it should be, a great American success story of a great judge with great talent, great intellect and a respect for the rule of law.  And that‘s what they can‘t attack, and that‘s why they‘re doing all these other things.

MATTHEWS:  Well, Senators, Glenn Beck disagrees with you.  Here he is today on the radio, talking about the nominee.

(BEGIN AUDIO CLIP)

GLENN BECK, RADIO TALK SHOW HOST:  It is, like, Hey, Hispanic chick lady, you‘re empathetic?  She says, Yes.  They say, You‘re in.  That‘s the way it really works.

(END AUDIO CLIP)

MATTHEWS:  Let me ask you, Senator Klobuchar, about these people because I think there‘s an interesting thing going on on the right.  I want your review of it.  I think they‘re stirring up, the right, the people who listen on the radio, white males who don‘t like a lot of changes in our culture over the last 20 or 30 years.  They‘re not the Republican Party that decides elections.  They‘re certainly not the 50-some percent they‘ve been able to get in some elections, but they are a crazy corner of the Republican Party.

Do you have a sense that this is going to end up helping your party?

KLOBUCHAR:  Oh, I don‘t know...

MATTHEWS:  Same question I put to Senator Menendez.  You guys don‘t want to act...

KLOBUCHAR:  Chris—

MATTHEWS:  You act so agnostic when I ask you these questions, like the last thing that would ever occur to you is politics.  It would never occur to you!  But doesn‘t this cacophony from the right, which sounds sexist, which sounds anti-Hispanic, end up helping the Republicans (SIC) get more women votes, more—you got 56 percent of the women last time, almost 57 percent.

KLOBUCHAR:  Chris, you know why?  Because that...

MATTHEWS:  It sounds like it‘s heading towards 60 today.  Go ahead.

KLOBUCHAR:  We don‘t want to go down in the mud with these guys because, I got to tell you, it didn‘t work in the presidential election when they did this.  This is about a Supreme Court nominee.  And they are just going to throw everything at her.

And what really matters is what she stands for, as Senator Menendez said, what her record is about.  Look at this, 400 written decisions.  I think something like five she was only reversed on.  You look at her, she goes down the line.  She doesn‘t see the law as some dusty book in her grandma‘s basement but she looks at how it affects people in their day-to-day lives.

MATTHEWS:  Yes.

KLOBUCHAR:  And people in America have listened the last few days, they‘ve watched her, they‘ve seen her, and they believe that she‘s someone that they can trust.  They want to see the hearings.  They‘re going to make a final decision then.  But we‘re not going to get in the mud with these guys with names about “chick lady.”  So it‘s not where I‘m going.

MATTHEWS:  OK, let me ask you about a new Court decision that may be

coming down the road.  Two respected lawyers in this country—of course -

let‘s see—what‘s his name—David Boies and Ted Olson—of course, Ted Olson leading the pack here because he‘s the conservative—pushing to take a 14th Amendment case to the Supreme Court on the California Prop 8 -- in other words, taking to the Supreme Court the question of whether the 14th Amendment, which protects you—which has substantive equal protection in it.

Is that possibly going to be a case where the Supreme Court allows and protects people the rights to same-sex marriage?  Senator Klobuchar, do we see that coming down the road here, like the Lawrence case?

KLOBUCHAR:  You know, we‘ll have to see.  I think a lot of the legal

scholars that looked at this and looked at Proposition 8, what would

happen, they weren‘t that surprised by the decision.  I think, ultimately -

we‘ll see what happens with this case, but ultimately, I think this is going to be an issue that‘s going to be decided on a state-by-state basis, and I think that might be OK.

MATTHEWS:  State by state.  What about you, Senator Menendez?  Do you think the Supreme Court might guarantee the right to same-sex marriage in a big Court decision coming down the road?

MENENDEZ:  Well, we‘ll look at what—if the Court takes the case, and ultimately, what it decides, if it takes it.  I mean, at the end of the day, I would think that this Court, as it‘s composed right now, I‘d find that hard to believe that they would uphold that decision.

MATTHEWS:  But you had a 6-to-3 decision in the last Court with Sandra Day O‘Connor and Anthony Kennedy in the case knocking out sodomy and using the liberty clause.  Why wouldn‘t they go a step further and say you have the right to marry, as well?  Seems like the next step.

MENENDEZ:  Well, again, Chris, I understand what your view is, but you‘re not sitting on the Supreme Court right now.  This Court, as it‘s composed, I‘m not sure that, in fact, that‘s where they‘d go.

MATTHEWS:  Yes.  It‘s not my view yet.  I‘m trying to figure this thing out, sir.  Let me ask you about something you‘re much closer to.  Are you happy...

KLOBUCHAR:  Although I do like the idea—I like the idea of nominating you because then we wouldn‘t call you a “chick lady.”  That would be good.

(LAUGHTER)

MATTHEWS:  Well, I‘m sure people would think of something else even worse.  But let me go to this question, Senator Menendez—and I‘m sure there‘s worse out there.  What do you think about Roland Burris‘s performance on this show last night, where he said his defense in that whole thing was that he didn‘t pay to play because he intended to renege on the promise to pay the governor?  He was going to pay for the seat, but you know, he didn‘t really intend to do that, he was just lying to the guy.

MENENDEZ:  Well, I‘ve caught—not the original, but I have caught glimpses of it.  I‘ll just say I don‘t quite understand Senator Burris‘s explanation.  And of course, the biggest explanation he‘ll have to give is to the people of Illinois, should he choose to run for reelection.  And of course, you know, he still has a pending case before the Senate Ethics Committee.  So you know, we‘ll see how that all plays out.  But I have to be honest with you, Chris, I didn‘t quite understand it.

MATTHEWS:  Do you support another nominee out there, as chairman of the party campaign committee?  Would you like to see another nominee challenge him next year for the nomination?

MENENDEZ:  We will see how it unfolds.  There is already one other candidate, the state treasurer, Alex Giannoulias, who has announced.  There are others who are looking at it.  I believe the attorney general of the state is looking at it.  There may be others, as well.  And so we‘ll have to see how the race ends up.

Of course, you know, we see in several states where we‘ve got a wealth of candidates, and sometimes our challenge is trying to narrow that down.  We‘ll see how this one unfolds, as well.

MATTHEWS:  OK, thank you very much, Senator Amy Klobuchar of Minnesota, Senator Bob Menendez of New Jersey.

Coming up: My interview yesterday with Senator Burris I just mentioned, who was caught, by the way, in an FBI wiretap telling the governor‘s brother that he would host a fund-raiser for the governor but that he would do it under another name so he wouldn‘t be caught doing it, and then saying to me but he didn‘t intend to make good on that deal, that he was just basically, quote, “placating” or lying to the governor‘s brother to get the seat.  What kind of political trouble does this put him into, not to mention the legal questions just mentioned?

You‘re watching HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL.  Senator Roland Burris on HARDBALL last night was defiant that his words on that newly released audiotape bolster his innocence.  So how‘s it playing in Chicago and beyond?  Mary Ann Ahern is WMAQ‘s political reporter, and Natasha Korecki reports for “The Chicago Sun-Times.”

Mary Ann, I want you both—and I also want Natasha—to look at this tape from last night on the program.  Here‘s Senator Burris explaining how his offer to raise money through that blind game of doing it through his old his law partner so he wouldn‘t be caught—how he didn‘t intend to make good on that payment, he was just pretending to the governor‘s brother he‘s going to raise money for him, but he was going to stiff him.  Here he is.

(BEGIN VIDEO CLIP)

MATTHEWS:  You said you‘re going to use your partner‘s name in your law firm to hold a fund-raiser.  Did you intend at the time you said this to Rob Blagojevich, that you intended to hold a fund-raiser in the name of Tim Wright or not?  Did you intend to hold a fund-raiser?

BURRIS:  I did not intend...

MATTHEWS:  OK, so you were lying—you were lying to the governor‘s brother.

BURRIS:  I did not intend to hold a fund-raiser for the governor‘s brother.  We were seeking to placate the governor‘s brother because at that time, it was my intention not to alienate the governor‘s brother.  That‘s all.

MATTHEWS:  So your legal and political defense is that you weren‘t telling the truth to the governor‘s brother when you promised to hold a fund-raiser for him.  That‘s your legal and political defense, that you weren‘t telling the truth.

BURRIS:  Well, I was seeking to placate him because there was no way we were going to hold a fund-raiser, nor did we hold a fund-raiser...

MATTHEWS:  OK.

(END VIDEO CLIP)

MATTHEWS:  Mary Ann, that‘s an incredible assertion.  That‘s his defense, that he lied.

MARY ANN AHERN, WMAQ POLITICAL REPORTER:  It‘s not only outrageous that he said it once to him on the telephone, but that he even spoke to you, Chris.  We‘ve been trying to sit down with him for months, haven‘t been able to do that.  But you really nailed him several times in that conversation yesterday.

MATTHEWS:  Well, what—how‘s it going to sell in Chicago, which is used to some rough politics out there, to say the least, to hear a guy admit that he was basically BS‘ing, to put it bluntly, the governor‘s brother into thinking he was going to raise some money for him?  If he got the Senate seat, he never intended to deliver on the promise.  I mean, is anybody going to buy that that‘s somehow a legal or a political defense?  Maybe it is a—is it a legal defense to say you‘re going to give somebody money to do something for you but not do it?  I don‘t know.  We‘re going to find out in court, I guess.

AHERN:  We are going to find out in court.  And let me tell you, the rough-and-tumble Chicago politics—already this afternoon, some in Chicago have moved on because there‘s a new alderman who‘s been indicted, U.S. Attorney Patrick Fitzgerald at that news conference just an hour ago.  So it does seem to be this culture of corruption that never goes away.

MATTHEWS:  Well, let me go to Natasha.  Your thoughts on this case?  Where‘s it going?  Is it going to the Senate Ethics Committee?  Is it going to—is it going to go to Fitzgerald‘s investigation?  Will there be a prosecution here?  Will it end up being just the fact this guy gets beaten in the next primary?

NATASHA KORECKI, FEDERAL COURTS REPORTER, “THE CHICAGO SUN-TIMES”:  I

I don‘t think there‘s any indication that Patrick Fitzgerald is investigating Burris.  In fact, the FBI did interview Burris in March, but they—he was told at the time that he wasn‘t a target. 

You know, going back to your first question, Chris, you know, the—the question about the—you know, with—with Robert Blagojevich and trying to placate him, the—the problem with that reasoning is that Burris‘ own lawyer contradicted that—that statement yesterday. 

He—he said that Burris tried getting him to hold a fund-raiser, and

that he refused to do it and told him that it was a bad idea.  So, I think

that‘s what keeps dogging Burris, is that his story keeps changing, and it

he—he either contradicts himself or seems to contradict other people who he was talking with.  So, I—I think that‘s going to be a problem he needs to overcome.

MATTHEWS:  Well, let me run through it for both of you once again, since I got my head filled with this yesterday arguing with the guy and trying to get the information out of him.

His defense was so unusual, because when he was caught by the—the wiretap offering to run a fund-raiser through the blind—by using a former law partner, Tim  Wright, using his name, saying, I‘m going to do it in his name to raise the money for you, so I won‘t get caught, and then, when I said, well, that‘s—you‘re obviously trying to do it in a sneaky way here, but still trying to buy the office, he said, yes, but I‘m not going to really make payment. 

Well, let‘s take a look at another bit of it here...

(LAUGHTER)

MATTHEWS:  Because I asked him about why he told me—when I interviewed him in January, I was rather open.  I wasn‘t a lawyer.  I wasn‘t a prosecutor.  I said to him, did you have to—did you have to make any promises to the governor to get this job?  Did you have to—did he seek anything from you? 

Well, let‘s take a look at how he handled that question. 

(BEGIN VIDEO CLIP)

MATTHEWS:  I asked you on this program on January 16, did the—the governor ever ask you for anything?

And you gave me an answer about how, “I never talked to the governor.” 

But...

SEN. ROLAND BURRIS (D), ILLINOIS:  Well, the governor—the governor never asked me for anything. 

MATTHEWS:  No.  No.  He—and then you say he never—he...

BURRIS:  The governor didn‘t.

MATTHEWS: “He sought nothing from me.  He sought nothing...”

BURRIS:  The governor—the governor—Chris, the governor never asked me for anything. 

MATTHEWS:  Well, what did his brother ask you for? 

BURRIS:  Oh, oh, oh, well, the—oh, well, the governor was trying to raise funds.  Like, he was calling, you know, 1,800...

MATTHEWS:  Oh, OK.

BURRIS:  ... 1,800 other people.  I mean, he was raising funds. 

MATTHEWS:  So, what‘s the difference between the governor‘s brother asking you for money and you telling me that the governor didn‘t ask you for anything? 

BURRIS:  Because he didn‘t.

MATTHEWS:  Isn‘t there a conflict there? 

(END VIDEO CLIP)

MATTHEWS:  Mary Ann—Mary Ann, what do people make of that, where he

he denies to me that the governor ever asked him for anything, and then he admits that the governor‘s brother called him and asked for money in a conversation where he was trying to get the Senate seat?

I mean, it‘s B.S. 

AHERN:  And no one is—no one is surprised, Chris.  You‘re absolutely right. 

People told him from the very beginning:  Do not take this seat.  Rod Blagojevich was Kryptonite.  No one wanted to be anywhere near him. 

MATTHEWS:  Right. 

AHERN:  And what‘s going to be really interesting, too, are other conversations, including Congressman Jesse Jackson Jr.  What kind of conversation did he have with the former governor or any of his aides close to him?  Because, obviously, Roland Burris was not the only one looking for this seat. 

MATTHEWS:  OK. 

You‘re sitting in Chicago, you‘re reading the papers, Natasha, your paper, and the average person sitting somewhere riding around on the subway or whatever, just trying to think through what the hell these politicians are up to, there‘s only one way to look at this.  Somebody is buying a Senate seat. 

They‘re talking money.  They‘re haggling over money.  They‘re haggling about how they get the money without getting caught.  They are haggling about everything here, about—money, money, money is the whole conversation, and the Senate seat. 

How can anybody look at this and say anything, but this system stinks, or what? 

KORECKI:  Well, this is—this is Chicago.  You know, we—we are pretty hardened to these—these kinds of things here.

But, having said that, I think, even in this case, people are pretty surprised and pretty disappointed.  The revelations of these recordings—you know, it—what‘s happening here is that there‘s something new coming out with this Burris episode.  Every time there is—every time there is...

MATTHEWS:  Yes. 

KORECKI:  ... there is a new recording, there‘s a new transcript, there‘s a new revelation. 

And we thought we all went through this already.  We thought all of the bad issues...

MATTHEWS:  Right. 

KORECKI:  ... had been aired earlier, but there‘s new revelations.

MATTHEWS:  OK. 

KORECKI:  And had Burris front—fronted some of this, I think it wouldn‘t have dogged him, the way it‘s dogging him right now. 

MATTHEWS:  You know—you know, you guys are experts on Chicago, but what really impressed me last night, Mary and Natasha...

(LAUGHTER)

MATTHEWS:  And I‘m laughing a little, because it‘s so outrageous. 

He‘s on the phone with the governor‘s brother haggling about how to buy the Senate seat.  And he says: “You know—you know, Rob, I‘m in a problem here.  I have got a dilemma.  My dilemma is, if I raise all this money for you, I get people to give money to me to give it to you, and then I don‘t get the Senate seat, I‘m going to have a dilemma here.”

He‘s complaining...

(LAUGHTER)

MATTHEWS:  ... that he‘s got all these shareholders.  He‘s out selling his Senate seat before he even gets it, and complaining to the guy‘s brother, “Hey, if you give me the Senate seat, and I—I get all these people to invest in it, my God, I‘m going to be embarrassed in front of the people who bought me.”

I mean, it‘s so incredible. 

Mary Ahern, thank you.  Good luck with this case. 

AHERN:  How about...

MATTHEWS:  Go ahead.  Yes?

(CROSSTALK)

AHERN:  And the very first time he answered the phone, he said to his brother, “You‘re going to make me the king of the world, right?”

(LAUGHTER)

AHERN:  It‘s just really unbelievable. 

MATTHEWS:  Well, to me, it is. 

Anyway, Mary Ahern, thank you very much, and Natasha Korecki. 

Up next, talk about a change in tone here in Washington—it may not be “Jay Leno,” but the daily White House briefings have become, apparently, a lot of fun for the reporters.  It‘s carry on press secretary these days. 

I think he looks like a—kind of a quiet guy, but, apparently, these guys in the press room think he‘s a real hoot. 

You‘re watching HARDBALL, only on MSNBC.  

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL.  And time for the “Sideshow.” 

Republican Governor Haley Barbour of Mississippi, a HARDBALL regular, said yesterday he‘s going to put off thinking about a presidential run in 2012 until after 2010, going to keep it out of his head until then.  He says—quote—“You go out with your friends, you have one too many beers, you start thinking about that.  Well, I have recovered.”

Well, who said that the only way to kill presidential ambition is embalming fluid?  It‘s was Mo Udall that said that.

Well, time now for tonight‘s “Big Number.” 

Have you noticed a lighter mood in the White House briefings under presidential Press Secretary Robert Gibbs? 

(BEGIN VIDEO CLIP)

ROBERT GIBBS, WHITE HOUSE PRESS SECRETARY:  At 6:30 a.m. tomorrow morning, the president will announce his Supreme Court nominee. 

(LAUGHTER)

GIBBS:  Gotcha. 

(LAUGHTER)

GIBBS:  I‘m done.  No.

And...

BARACK OBAMA, PRESIDENT OF THE UNITED STATES:  Hey.

QUESTION:  Mr. President.

QUESTION:  Mr. President.

OBAMA:  I‘m sorry, but Gibbs is screwing this thing up. 

(LAUGHTER)

OBAMA:  There‘s a job to do, you have got to do it yourself. 

(LAUGHTER)

GIBBS:  See you guys later.  Have a good weekend. 

(LAUGHTER)

GIBBS:  Give me the phone. 

(LAUGHTER)

GIBBS:  All right?  This is—come here.

(APPLAUSE)

(CROSSTALK)

GIBBS:  ... enhanced interrogation technique.

(LAUGHTER)

GIBBS:  I will be right back. 

(LAUGHTER)

QUESTION:  What is... 

(PHONE RINGING)

(LAUGHTER)

GIBBS:  You, too?  You want to do this, too?  Here.  Come on. 

(LAUGHTER)

(END VIDEO CLIP)

MATTHEWS:  While Robert Gibbs has only been in the ringmaster‘s seat for four months now, the Politico magazine decided to look back through the transcripts to see how he fares as a comedian, compared to previous White House press secretaries during the same period. 

Well, here are the statistics.  Dana Perino logged 57 laughs in her first four months, Scott McClellan 66, our late friend the wonderful Tony Snow, 217. 

So, where does Press Secretary Gibbs stand?  Well, according to Politico, he‘s had over 600 laughs.  Times are tough, but there‘s nothing like a regular round of knee-slappers to keep things going over there, I guess. 

Press Secretary Gibbs logs over 600 laughs in the White House transcripts.  The honeymoon continues—tonight‘s “Big Number.” 

Up next:  California‘s Supreme Court upholds the state‘s ban on gay marriage, but now some unlikely players are teaming up to fight back.  Attorneys David Boies and Ted Olson, who were on opposite sides during the 2000 Florida recount, have filed suit in federal court. 

And David Boies and Ted Olson are coming here on HARDBALL to explain why they‘re pairing up on this one. 

You‘re watching HARDBALL, only on MSNBC.  

(COMMERCIAL BREAK)

MARGARET BRENNAN, CNBC CORRESPONDENT:  I‘m Margaret Brennan with your CNBC “Market Wrap.”

Stocks rallied higher today on rising oil and gas prices and solid demand for a new batch of Treasury bonds.  The Dow Jones industrial average closed the day up 103 points, after seesawing earlier in the session.  S&P 500 added 13, and the Nasdaq finished the day more than 20 points higher. 

Commodity traders signaled confidence in the strengthening economy, or at least less supply in the marketplace, pushing gas and oil company shares higher on signs of increasing demands for energy and a decision by OPEC not to increase supply to the markets. 

The Treasury Department‘s $26 billion bond auction met with robust demand today, easing fears that the government would have to offer higher interest rates to entice buyers. 

And GM shares slid more than 2.5 percent, even as investors cheered a debt-for-equity deal with bondholders.  GM faces that June 1 restructuring deadline. 

And shares in the world‘s number-two computer-maker, Dell, are climbing after hours, after the company reported a 63 percent drop in profits.  That still met what Wall Street expected. 

That‘s it from CNBC, first in business worldwide—now back to Chris and HARDBALL. 

MATTHEWS:  Welcome back to HARDBALL. 

David Boies and Ted Olson had the epic showdown during the fight over the 2000 presidential election in the Florida recount.  Now they have teamed together on the same side to fight Proposition 8, the California ban on same-sex marriage. 

Ted Olson joins us from Washington.  And David Boies is on the phone from New York. 

Ted, first, I‘m impressed by you, sir, again.  I‘m always impressed by you.  But, this time, you surprised me.  You‘re going to use the liberty clause of the 14th Amendment to stop states from outlawing same-sex marriage, right? 

THEODORE OLSON, FORMER U.S. SOLICITOR GENERAL:  We‘re going to use the equal protection clause of the 14th Amendment and the due process clause of the 14th Amendment to argue that individuals are entitled to marry the individual—the person of their choice, and the due process clause and the equal protection clause precludes states from prohibiting same-sex individuals to have the same right to marry as other individuals. 

MATTHEWS:  Well, David, let me try to get you to put that in English for the regular non-lawyer out...

(LAUGHTER)

MATTHEWS:  No, I mean this.  I understand it.

(CROSSTALK)

MATTHEWS:  But I want it a little more human here. 

DAVID BOIES, AUTHOR, “COURTING JUSTICE”:  Sure.

MATTHEWS:  Are you saying that a person has the right to life, liberty, and property, and states can‘t deny it, and part of liberty is the right to pair off with whoever you want to pair off with, basically...

BOIES:  And I...

(CROSSTALK)

MATTHEWS:  ... to mate with for life? 

(CROSSTALK)

MATTHEWS:  Is that what you‘re basically saying... 

BOIES:  Absolutely.

(CROSSTALK)

MATTHEWS:  ... liberty?

Yes. 

BOIES:  Yes, absolutely. 

Forty-two years ago, the Supreme Court decided that marriage was a fundamental right of liberty, that the ability, the right to choose the person that you want to marry and to be able to marry the person that you love was a fundamental human right that could not be abridged by the state in a discriminatory manner.

And what the fundamental issue here in this case is, is it discriminatory to say that gays and lesbians, purely because of their sexual orientation, are unable to get married? 

We think it is.  We think that is the central issue in the case.  And we think it violates the federal Constitution for California to prohibit gays and lesbians from marriage. 

MATTHEWS:  Let me get back to Ted for the five here to get five votes before arguments. 

If you argue this case before the Supreme Court, if you get cert, you have got a good shot, it seems to me, because of the—of the Lawrence case, where you had five votes under the liberty cause and another one under equal protection, Sandra Day O‘Connor.  But you have got that necessary minimum of five votes here if Sotomayor replaces Souter and thinks like him. 

What is your thinking on this, in terms of the liberty clause?

OLSON:  Well, I think that we think that the Supreme Court‘s decisions, the one that David mentioned about the right—the fundamental right to marry—there‘s a case involving Colorado of a few years—few years ago that said that the state could not discriminate against gays and lesbians with respect to access to the political process. 

That was a—that was a decision of the Supreme Court, and then the case you mentioned, Lawrence vs. Texas, which was a 6-3 decision, as you mentioned. 

MATTHEWS:  Right.   

OLSON:  We‘re talking about equality of individuals, and we‘re talking about denying them that right to marry.

And there isn‘t a rational basis for California or any other state to take individuals and say, they are unpopular.  We don‘t like the things that they do in their relationships, and—which—which the Supreme Court in that Texas case held to be constitutionally protected—but, because we don‘t like those things, we‘re going to deny them the right to marriage. 

As David and I have been saying, this is not a liberal/conservative, Republican/Democrat issue.  This is a matter of equality and treating people with dignity and allowing people that stable relationship that marriage produces. 

MATTHEWS:  OK. 

Let‘s talk about the word marriage, David Boies.  The word marriage to a lot of people means man and woman.  That means, you get married, you have kids the traditional way. 

BOIES:  Right. 

MATTHEWS:  How do you take that word marriage and apply it to same-sex relationships, when it wasn‘t applied that way for most of human history, in terms of the law, in terms of the law?

(CROSSTALK)

BOIES:  Because...

(CROSSTALK)

MATTHEWS:  I‘m not talking people weren‘t gay...

BOIES:  Sure.

MATTHEWS:  ... or they didn‘t have relationships.  I‘m not getting into that, because that‘s obviously not—untrue.

But, in terms of law and recognition, we haven‘t in the past in Western society recognized in common law the right to marry someone of the same sex. 

How can you find that right, then, given there‘s no history of it? 

BOIES:  Well, for example, I mean, historically, there has been all sorts of discrimination. 

                Women couldn‘t hold property and couldn‘t vote.  African-Americans

couldn‘t vote and couldn‘t own property and were slaves.  It took until

1967 for the United States Supreme Court to rule that it was

unconstitutional for states to prohibit blacks and whites from marrying

each other. 

The fact that something has been done in the past doesn‘t make it right.  And I think that one of the things that has happened in our society is that we‘ve always believed in equal rights, but we sometimes have been blinded about who is really entitled to that kind of equality. 

MATTHEWS:  Right. 

BOIES:  And I think we recognize today that everybody is entitled to that kind of equality, and that when we look at somebody‘s sex or we look at somebody‘s race or we look at somebody‘s religion or we look at somebody‘s sexual orientation, and we say they‘re a little less human than we are; they‘re really not entitled to equal rights, that that‘s just wrong.

And I think the Supreme Court made that clear in the context of marriage, as well as other fundamental rights. 

MATTHEWS:  Let me get back to Ted.  Could a state argue effectively that although the rights should be equal, the word marriage should apply only to male/female relationships?  Because it means something under our language, that it has a particular linguistic meaning, marriage, and the states have a right to preserve that meaning? 

Apart from rights—in other words, you could have same-sex marriage under a different name.  It could be called same-sex marriage or same-sex something else.  But can that word marriage be protected under the basis of the meaning of the word? 

OLSON:  In fact, that‘s essentially what California does.  They have something called domestic partnerships, which provides many of the same rights as marriage.  What if we were to tell individuals after coming to this country and taking the test and becoming citizens—what if we told them you‘re from Japan, you can vote, you can do all the other things that individuals can do who are citizens, but we are not going to allow you to use the word citizen, because you came from another country, because you are Japanese or you are Mexican or something like that.  That would be discrimination on an unacceptable basis.

And that‘s what we have here.  We‘re saying that we don‘t mind if you live together.  We don‘t mind if you have the other relationships that exist in marriage.  We just don‘t want you, because of your sexual orientation, to use that word marriage.  We think that‘s unconstitutional.  And I can‘t say it better than David did. 

BOIES:  Remember, in California today there are more than 18,000 gay and lesbian couples who are married, and who are using the term married. 

MATTHEWS:  Right. 

BOIES:  And the California Supreme Court says that‘s fine.  There are lots of states, an increasing number of states, in which gays and lesbians can marry.  So marriage is not just limited to people of different sexes. 

MATTHEWS:  Let me go back to the politics.  It‘s a little apart from your question, but it‘s really an issue that I‘ve always thought about.  We had the Supreme Court give positive review, Constitutional review and accepted the fact that we had the Civil Rights Act of 1964, that used the Interstate Commerce Clause on public accommodations.  And we have no more prejudice in restaurants, certainly no public prejudice with regard—or discrimination with regards to hotels, restaurants.  It‘s been totally accepted.

Whereas Roe v. Wade was a court decision which basically came out of a court decision, not out of a law.  Isn‘t it better to have same-sex marriage passed as law by states, and then reviewed and supported by the courts, rather than have the courts take the initiative and then have this dispute go on and on and on, like it has with Roe?  Ted Olson. 

OLSON:  That case that David mentioned, Loving versus Virginia, involving interracial marriage, at that point in time in 1967, it was accepted that states could prohibit interracial marriage.  That didn‘t stop the Supreme Court from rendering the decision that said that that was unconstitutional.  And people now think that that would be crazy to say that we couldn‘t allow people of different races to marry. 

We‘re asking—we would be saying, Chris, to someone who has a Constitutional right to marry, wait a few years until 50 states approve that.  Go stand in the back of the line, and wait until the political process goes through its forms, and people vote to give you your Constitutional rights. 

You don‘t take your Constitutional rights to the ballot box.  They‘re protected by the Constitution.  That is why we have a Constitution, and that‘s why we have courts. 

BOIES:  Remember also that we wouldn‘t have had the Civil Rights ACt without Brown against Board of Education.  The Supreme Court had to step in and start that process.  After that process was started, we had important legislative accomplishments.  But the Supreme Court has been in the forefront of establishing fundamental rights for a long time. 

MATTHEWS:  OK.  Thank you very much, David.  And, Ted, last night, on a personal note, my wife and I agreed, once again, how much we love Ted Olson.  Thank you very much, sir, for once again impressing us in so many new ways. 

Up next, how much trouble is Senator Roland Burris facing today, one day after my interview with him on HARDBALL.  Will Burris survive the heat?  The politics fix is next.  This is HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

MATTHEWS:  I asked you on this program on January 16th, did the

governor ever ask you for anything?  And you gave me an answer about how I

--

SEN. ROLAND BURRIS (D), ILLINOIS:  The governor never asked me for anything. 

MATTHEWS:  No, no.  And then—

BURRIS:  The governor didn‘t—

MATTHEWS:  He sought nothing from me—

BURRIS:  The governor—Chris, the governor never asked me for anything. 

MATTHEWS:  What did his brother ask you for? 

BURRIS:  The governor was trying to raise funds like he was calling 1,800 other people. 

MATTHEWS:  What‘s the difference between the governor‘s brother asking you for money and you telling me that the governor didn‘t ask you for anything?  Is there a conflict there? 

(END VIDEO CLIP)

MATTHEWS:  We‘re back right now.  That was a clip from the interview last night with Senator Roland Burris.  Can the beleaguered Burris beat the damage done by those tapes and by the interview last night? 

Time now for the politics fix.  Michelle Bernard is a political analyst for MSNBC, and Willie Brown, of course, is the former mayor of this city, San Francisco.  And he was the also top man—he was top speaker of the Assembly out here for so many years and famous for that. 

By the way, in interest of full disclosure, MSNBC political analyst Michelle Bernard has known the Burris family for some time. 

I want to start with you, Michelle, because last night‘s interview was stunning to me.  For him to admit on this show—and it was nice of him to come on the show, to be honest with you, to make some news here.  But the news he made was, unfortunately for him, that he was basically bluffing, in his words, rather placating, to use his exact words, the governor‘s brother in saying I‘m going to raise some money for you, through this sneaky route through his former law partner.  And I‘m going to pretend to do it because I have no intention of making good on the payment in order to get the Senate seat. 

That‘s his legal and political defense.  What do you make of it? 

MICHELLE BERNARD, MSNBC POLITICAL ANALYST:  Yes, it‘s interesting, because I spoke with a senior member of his staff earlier today.  Frankly, first, I‘ve got to tell you, they feel that you were very hard on him yesterday.  They don‘t see a problem with this quote/unquote defense.  I use defense very loosely.  The exact words that the staffer gave me were basically that, look, Senator Burris, at the time, was literally BSing the governor‘s brother.  The governor‘s brother is a business man.  They didn‘t want to upset him.

They really feel this is much ado about nothing.  No payments, whether

it was personal or government money, ever, ever exchanged hands.  And what

they‘re feeling that the public really needs to understand that this was, quote/unquote, BS.  And quite frankly, even if he had written a check, you cannot possibly buy a Senate seat for a 1,000 dollar check.  That can‘t possibly happen.

MATTHEWS:  No, but why was he setting up a fund-raiser through his former law partner for the governor in order to get the Senate seat?  According to the former law partner, he said no to him, he refused the request by—the former guy by his former guy, Burris, to run the fund-raiser for him.  He wouldn‘t do it. 

It wasn‘t a phony offer.  He was trying to get the fund-raiser set up, but his partner, Tim Wright, wouldn‘t do it.  It seems like he‘s lying here. 

BERNARD:  Well, that‘s a possibility.  I have not spoken directly with Senator Burris, so I can‘t tell you.  What I can tell you is that from what the senior staff is telling me, he felt that he was simply placating the governor‘s brother because he is in business, that he never had any intentions of making any kind of payments whatsoever.  And they feel that the public is just not getting it. 

MATTHEWS:  Mayor Brown, what‘s most troubling in that conversation is not just his admission that he was setting up a fund-raiser in order to get that job and admitting that, but he said he was facing a dilemma in the fact that he was afraid he wouldn‘t get the job if he raised the money and that would cause some trouble with his contributors.  In other words, he was already out there raising money to pay for his Senate deal.  So there‘s a lot of partners in this effort to try to buy this seat.  I thought that was very incriminating politically.  Your thoughts, mayor. 

WILLIE BROWN, FMR. MAYOR OF SAN FRANCISCO:  I think Mr. Burris should have avoided Chris Matthews‘ program, period.  I think those quotes that are on that FBI tape may have a plausible explanation, but Roland Burris can‘t be the one delivering the plausible explanation if his performance on your show last night is indication thereof. 

He literally, literally, I think, created a major problem for himself by the nature of his answers.  You can‘t say, if I raise money for somebody, and I give it to somebody, my friends whom I raised it for are going to be really livid if I don‘t get some benefit coming from the person I raised it from.  That you cannot do.  You cannot say that.  You can‘t do that. 

He said that.  Whether or not he meant to say it, whether or not he meant it, he needs to reserve that explanation for the courtroom. 

MATTHEWS:  Michelle? 

BERNARD:  Chris, it‘s interesting, I asked the staffer that I spoke with today, is Senator Burris having a problem with the Illinois Democratic Party?  And he said that, you know, with the exception of Mr. Durbin, that he‘s not having a problem.  People are not, you know, applauding him.  They‘re not saying yes, they‘re not saying no.  They‘re raising money.  They‘re hoping that they‘re going to have news by the end of the next filing period, that he‘s been able to raise money. 

And when I asked, does he have any intentions of stepping down if the pressure really gets to him, the answer I was given is absolutely not.  He has done nothing wrong and he will not step down.  And he is deciding whether or not he‘s going to run in the next election. 

MATTHEWS:  I want to come back and ask you about his answer to that, Michelle.  I want to know what you think as an attorney and someone who knows him.  What do you think of his defense that he was facing a dilemma if he couldn‘t get that job from the governor, after raising the money for him?  I want to know what you think about that sort of offer.  I‘ll give you some more time to do it when we come back.  Michelle Bernard and Willie Brown, we‘ll be right back with the fix.  You‘re watching HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  We‘re back with MSNBC political analyst Michelle Bernard and former San Francisco Mayor Willie Brown for more of the fix.  Michelle, the question, Roland Burris last night on the show said he was facing a dilemma when he was talking to the governor‘s brother, saying if I raise all this money for the governor, and then I don‘t get the Senate job, I‘ll be in a dilemma.  How do you explain that conversation? 

BERNARD:  You know, I actually have absolutely no explanation whatsoever.  What I can tell you is that there is a difference between a political problem and criminal conduct.  I don‘t think that this rises to the level of criminal conduct.  But politically, I think it is going to be very difficult for Senator Burris if he decides to run for re-election for the Senate seat. 

He looked, yesterday—that interview with you was very difficult and at times he appeared to be an attorney doing the thing that the American public hates the most, which is sort of talking in technicalities.  No, the governor didn‘t ask me for anything, and I didn‘t tell you that his brother did.  And most people don‘t like that type of response.  And I think he‘s going to have a very enormous political challenge ahead of him. 

MATTHEWS:  Mayor Brown? 

BROWN:  Yes, I share her view completely.  And I must tell you that it was disingenuous of him to say, the governor never asked me for anything.  he knew what you were asking about, and that is, has anybody, anybody, not just the governor, asked you to do anything on the governor‘s behalf.  He should have been directly—

MATTHEWS:  Mayor Brown. 

BROWN:  He should have not answered any of your questions by not coming on the show. 

MATTHEWS:  OK, Mayor Brown, you should be on either the Supreme Court or the U.S. Senate.  Thanks for coming here tonight.   Michelle Bernard, Willie Brown, thank you.  Join us again tomorrow night at 5:00 and 7:00 Eastern for more HARDBALL.  Right now, it‘s time for “THE ED SHOW” with Ed Schultz.

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

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