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'The Rachel Maddow Show' for Monday, May 10, 2010

Read the transcript to the Monday show

Guest: Glenn Greenwald, Lawrence Lessig, Dahlia Lithwick, Brian

Schweitzer.

KEITH OLBERMANN, “COUNTDOWN” HOST:  And now with her guest Glenn

Greenwald and more on the Kagan Supreme Court nomination—ladies and

gentlemen, here is Rachel Maddow.

Good evening, Rachel.

RACHEL MADDOW, HOST:  Good evening, Keith.  I would happily give you a

little time in my hour if you wanted to tell that joke.

OLBERMANN:  Well, he‘s talking about—you sort of—with the

relationship with the sleeping with the voters, and naturally, if Mr. Brown

can‘t seal the deal, his possible successor could do that, and his possible

successor is, as I keep mentioning, David Milliband.

MADDOW:  I was just about to say—and we‘re out of time.

Thank you, Keith.  That was perfect in every way.

OLBERMANN:  Bulging disk.

MADDOW:  Thank you, Keith.

Thanks to you at home for staying with us for the next hour.  Today

was a day too crowded with big news to fit into our one hour of

programming, but among the stuff we have figured out a way to find time to

cover are the continued failure of B.P. to stop its underwater oil volcano

in the Gulf, the incredible rates off the chart kookiness of state

electoral decisions and—and the passing of a legitimate hero of the 20th

century.  That‘s all coming up over the course of this very packed hour.

But we begin with the Supreme Court and the entire 220-year-long

history of the Supreme Court of the United States.  Exactly 111 people have

served in the capacity of Supreme Court justice; 108 of those 111 have been

men, 97.3 percent.

If President Obama‘s nomination to the court of Elena Kagan today is

confirmed by the Senate, that percentage will drop from 97.3 percent to

96.4 percent.  USA!  USA!

Here was the president today with his nominee announcing the second

Supreme Court nomination of his not yet 2-year-old presidency.

(BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES:  While we can‘t presume

to replace Justice Stevens‘ wisdom or experience, I have selected a nominee

who I believe embodies that same excellence, independence, integrity and

passion for the law—and who can ultimately provide that same kind of

leadership on the court: our solicitor general and my friend, Elena Kagan.

(APPLAUSE)

ELENA KAGAN, SUPREME COURT NOMINEE:  Thank you, Mr. President.  I am

honored and I am humbled by this nomination and by the confidence you have

shown in me.

The court is an extraordinary institution in the work it does and in

the work it can do for the American people, by advancing the tenets of our

Constitution, by upholding the rule of law, and by enabling all Americans -

regardless of their background or their beliefs—to get a fair hearing

and an equal chance at justice.

               

(END VIDEO CLIP)

MADDOW:  If she is confirmed by the Senate, Elena Kagan would join

Ruth Bader Ginsburg and Sonia Sotomayor as the third woman on the United

States Supreme Court.  If she‘s confirmed, that means that three of the

four women to have ever served on the Supreme Court will all be serving at

the same time—if she‘s confirmed.  Modern Supreme Court nomination-

confirmation battles are about as close to political blood sport as

Washington has.

As of today, as expected, let the games begin.

(BEGIN VIDEO CLIP)

SEN. MITCH MCCONNELL (R-KY), MINORITY LEADER:  It strikes me that if a

nominee does not have judicial experience, they should have substantial

litigation experience.  Ms. Kagan has neither.

(END VIDEO CLIP)

MADDOW:  Senate Republicans pouncing today on the fact that Elena

Kagan has never served as a judge.  The last time someone who wasn‘t a

judge was nominated to be a Supreme Court justice was in 2005 when

President Bush nominated White House counsel Harriet Miers to fill the seat

of Justice Sandra Day O‘Connor.  That nomination lasted all of 25 days,

whereupon Mr. Bush was forced to withdraw his pick for lack of political

support.

The relevant comparison between Harriet Miers and Elena Kagan is not

actually about judicial qualifications.  There really are no serious

questions about whether Elena Kagan is qualified for the Supreme Court. 

Harriet Miers had essentially been George Bush‘s lawyer and she‘d been

White House counsel for a hot minute and that‘s it.

Elena Kagan, on the other hand, is the current solicitor general of

the United States—that‘s the person who argues the government‘s cases in

front of the Supreme Court.  She is the former dean of Harvard law school. 

She is a former clerk to the Supreme Court.  She has a nationwide coast-to-

coast sterling legal reputation.  She has been a long time mainstay of

Supreme Court speculation.

The invocation of Harriet Miers‘ name right now—again, let me

repeat, is not because of the qualifications of these two nominees.  It‘s

because of this—it‘s because the thing that killed Harriet Miers‘

nomination was resistance from the base of the president‘s own party—

criticism that the president at the time, George W. Bush, had not chosen

someone conservative enough, someone with enough of an overt conservative

record to settle conservatives‘ doubts that she would be a solidly right

wing justice.

(BEGIN VIDEO CLIPS)

KELLY O‘DONNELL, NBC NEWS (voice-over):  Advisers say Senate

Republicans warned the White House they could not guarantee enough votes

for Miers.  Even from the president‘s own party.

UNIDENTIFIED MALE:  I hope we can all kind of step back, the president

can regroup.

SEN. MIKE DEWINE ®, OHIO:  I think, the president, you know, will go

back to his original criteria, which is to appoint a conservative to the

court.

RUSH LIMBAUGH,RADIO TALK SHOW HOST:  The idea that we now have to roll

the dice and wait a number of years to find out if this one works out when

it isn‘t necessary is I guess the big bugaboo with me.

UNIDENTIFIED MALE:  It is baffling the president would have passed

over that group of people to pick someone who is such an uncertain

quantity.

(END VIDEO CLIPS)

MADDOW:  Such an uncertain quantity.  And so, the Harriet Miers

nomination was withdrawn—not because of liberals but because of

conservatives.  And conservatives were then delighted that the very on-the-

record, doctrinaire conservative, Samuel Alito, was nominated for that seat

instead.

There is no mirror between right and left in this country there. 

There is no liberal equivalent to the conservative movement‘s level of

organization and funding and influence on party politics.  But in

considering a replacement for the justice who was the court‘s liberal

anchor with a Democratic president, with a 59-seat Democratic majority in

the United States Senate, will liberals—with whatever organization they

can muster—be satisfied with a nominee whose credentials as a liberal

aren‘t so much evident in her record as they are expected to be a matter of

faith?

In a moment, we‘ll hear from a Lawrence Lessig, a long-time friend of

Elena Kagan, a hugely respected legal scholar in his own right and strong

supporter of Ms. Kagan‘s nomination.

But, first, we will hear from Salon.com columnist and constitutional

lawyer Glenn Greenwald who has been a strong critic of Elena Kagan‘s

nomination.  Among before this nomination was announced, Mr. Greenwald

wrote a piece on Salon.com called, “The Case Against Elena Kagan,” which

has cast a glow over much of the discussion of this nomination in its early

stages.

Glenn, thank you very much for coming on the show tonight.  It‘s good

to see.

GLENN GREENWALD, SALON.COM:  Good to see you, Rachel.

MADDOW:  Is your main concern with Elena Kagan‘s nomination that there

is not enough in her record to satisfy you that she would be a liberal

voice on the court?  Or are there overt things that are in her record that

you think are illiberal?

GREENWALD:  It‘s both.  It‘s certainly more the former than the

latter.  And I wouldn‘t even put it as so much as there‘s not enough in her

record for us to know that she‘d be a liberal justice.  What the concern is

that she‘s actually a complete blank slate.  She‘s somebody who has managed

over the course of the last 20 years to avoid taking a position or

expressing an opinion on virtually every single substantial political and

legal question.

And so, for any rational citizen to want to assess the appropriateness

of putting her on the court to replace Justice Stevens, there‘s really

absolutely nothing that a person can look to to know what kind of judge she

can be.

There are troubling things in her record, things she said that ought

to be questioned about her belief in executive power, her praise for Bush

Justice Department lawyers who sanctioned the illegal warrantless

eavesdropping program, the utter lack of diversity of her hiring record at

Harvard law school.  And these things need to be explored.

But the real concern is: she has purposely avoided expressing any

opinion whatsoever over the last 20 years in the way that makes it

impossible for any progressive in good faith to say that they support her

nomination.

MADDOW:  I want to ask you about some of those overt things in the

record that you just mentioned.  But first, Glenn, when you wrote your

critique of Kagan for “Salon” a month ago, one piece of her record hadn‘t

come to light, that was a letter that she wrote in 2005 with three other

law school deans, that was opposing a Lindsey Graham proposal about

Guantanamo in the courts.  And that letter did strongly criticize the Bush

administration‘s expansion of executive power.  That‘s just come out in the

last few days.

Does that letter—the existence of that letter—leaven your

concerns about her at all?

GREENWALD:  I think that‘s a positive sign.  I mean, there are little

snippets that you can sort of glean from her past that are both concerning

and encouraging.  The fact that she condemned John Yoo‘s memos authority of

the eight years into the Bush administration, the letter that you mentioned

condemning the abolition of habeas corpus as a political matter—these

are things that are encouraging.  There are other things that are

discouraging.

But none of that really gives us a clue as to how she approaches the

Constitution.  What her theory of the law is or of judging—which is

really what you want to know before you put somebody on the Supreme Court,

especially somebody replacing Justice Stevens could easily move the court

to the right if they‘re not the kind of judge Justice Stevens is.

So, yes, those are good pieces of evidence, but they tell us actually

very little about the kind of judge she would be.

MADDOW:  Glenn, one of the things you have written about and I think

that other people from the left have criticized about Elena Kagan‘s record

is a discussion that she had during her solicitor general confirmation

hearing with Lindsey Graham and they were talking about indefinite

detention, as you mentioned, the government‘s right to pick up anybody,

anywhere in the world, hold them indefinitely without trial.  She

essentially agreed with Senator Graham when he was expressing his own views

about that.

Is it possible that in that discussion, she was essentially saying

what her view was of current law, not necessarily expressing her opinion

that she thought it was—that that law was constitutional or that she

thought it was good policy?

GREENWALD:  No, that‘s what Kagan defenders have said about that

exchange, and it‘s interesting because “The New York Times” described that

confirmation hearing as—when she was confirmed as solicitor general,

they said Republican senators lavished her with every bit as much praise as

Democratic senators did, and the reason is, is because of the types of

colloquies that you just referenced.

When she was talking to Senator Graham, part of what she was doing was

stating the current state of the law.  But she went much beyond that.  She

actually said that the entire world is a battlefield in the war on terror -

not just the places where there‘s armed conflict or where Congress has

authorized use of force.  And it‘s not just people engaging in hostilities

against the United States, but even people much more distantly connected to

terrorists, people who finance terrorism or who give material support, who

we can hold as enemy combatants as well.

               

That‘s nothing that the Supreme Court has said.  That is not the state

of the law.  That is something that she said when answering Lindsey Graham

that she believed to be true.  And that really is a core precept of the

Bush/Cheney approach to terrorism that served as an anchor for so much of

the radicalism of the last decade.  Again, that is not a perfect insight

into what she thinks.  But it‘s something that is a little snippet that

certainly ought to be of concern to people who oppose the Bush approach to

terrorism.

MADDOW:  Salon.com columnist, former constitutional lawyer himself,

Glenn Greenwald, whose criticism early on of the potential and now current

Elena Kagan nomination has been a real focus for people in terms of sorting

out her record and what‘s worthy of discussion about it.

Glenn, thank you very much, as always, for your insight.  It‘s good to

have you on the show.

GREENWALD:  Thanks, Rachel.

MADDOW:  And then there is the case in favor of Elena Kagan for the

Supreme Court.  Harvard law professor, Lawrence Lessig, worked alongside

Elena Kagan for years.  He has known her for nearly 20 years.  He will join

us next to make the case for her nomination.

And there‘s an update today on the volcano of oil that is spewing

underwater off the Gulf Coast.  In short, it is getting more disastrous and

the people trying to fix it appear now to be just making it up as they go

along.  Disturbing details—ahead.

Please stay tuned.

(COMMERCIAL BREAK)

MADDOW:  One thing about low-hanging fruit, rotten or not, someone‘s

bound to pick it.  One example of that today was the opposition proclaiming

that Elena Kagan doesn‘t have enough experience to judge pies at a county

fair, let alone Supreme Court cases.

Senator John Cornyn, Republican of Texas, issued this statement today,

quote, “Most Americans believe that prior judicial experience is a

necessary credential for a Supreme Court justice.”  And we‘re talking real

judicial experience here, a robe that‘s worn through at the elbows, a gavel

that‘s held together by duct tape.

Unless you‘re picked by a Republican president—like Supreme Court

Justice Clarence Thomas who had been a judge for just over a year when the

first President Bush nominated him.  Or Chief Justice John Roberts who had

barely been a judge two years when the second President Bush first picked

him—eventually, he‘s the nominee for chief justice.

The chief justice who Mr. Roberts replaced was Chief Justice William

Rehnquist, who‘d never been a judge at all.  Rehnquist was only assistant

attorney general when President Nixon chose him for the court.

Also consider Chief Justice Earl Warren, you know, Earl Warren.  Brown

v. Board of education guy.  He‘d only been attorney general and governor of

California before President Eisenhower nominated him.

In the history of the U.S. Supreme Court, 40 justices never served as

judges before being nominated to the court.  Elena Kagan would be the 41st.

This “Supreme Court nominees must have tons of judicial experience”

thing is a whole new idea they‘ve only decided to apply to her.  Don‘t

believe it.

(COMMERCIAL BREAK)

MADDOW:  One of the criticisms from the left that has been leveled at

President Obama‘s new Supreme Court nominee, Elena Kagan, is that she‘s not

as liberal as the justice she‘d be replacing, John Paul Stevens; that her

ascendants to the court would therefore had the affect of moving the court

to the right.

In response to that concern today, a senior White House official told

us this today.  Quote, “The president believes he nominated someone with

the intellectual heft and energy to compete with Justices Roberts and

Scalia—someone who has the ability not to simply write the eloquent

dissent of four but to put together a coalition of five for that point of

view.  Someone who is more outward ideological would likely not have the

same capacity to build the majorities we want to see.”  Again, that

statement to us today from a senior White House official about Elena

Kagan‘s nomination.

In response to that, the liberal argument for Elena Kagan‘s nomination

is essentially of two parts at this point.  First, that senior

administration official‘s argument to us that she‘ll be persuasive to other

justices, that she‘ll be good at scaring up a majority of five votes for

her position.

But second, people who know Elena Kagan are assuring the nation now

that her positions—that she‘ll be so persuasive about—are liberal

positions, even if there isn‘t a dense record of those positions for us all

to consult.

Joining us now is Harvard law professor, Lawrence Lessig, who has

known Elena Kagan for 20 years and wrote in support of her nomination at

“Huffington Post” today.

Professor Lessig, thank you very much for your time today.

LAWRENCE LESSIG, HARVARD LAW PROFESSOR:  Great to be here, Rachel.

MADDOW:  Why do you think that Elena Kagan would be good at persuading

other justices to her point of view, that she‘d be good at forging

majorities?

LESSIG:  Well, I think the first important point is to emphasize what

the White House said today.  Unlike the examples of President Bush

appointing very strong conservatives, we‘re not appointing the fifth

justice.  We‘re appointing the fourth justice.  And that that means is this

justice has got to have the capacity to persuade the other side, to pull

them on to the side of progressive causes.

Now, I and many others—everybody I think who has watched Elena work

over the past 20 years, have seen this power more than any other right in

the center of what she can do.  And that‘s because she has an enormously

powerful intellect and integrity, as well as the ability to express a

strength and respect to the other side.

I was at the Harvard Law School until 2000 when he left to go to

Stanford.  And she persuaded me to come back and the place I came back to

was a radically different institution.  I asked what had happened in the

prior nine years, and the answer was Elena Kagan.  And that is I think a

measure of her capacity, which I‘ve seen again and again in context where

I‘ve seen her engage with people she disagrees with.

MADDOW:  Part of the lack of an overt record that some people have

expressed concerns about, particularly from the left, is that—is about

the fact that Ms. Kagan hasn‘t chosen to be a real legal activist against

some of the more gymnastic constitutional exercises of the Bush years—to

put it charitably.  She didn‘t do that while she was dean at Harvard. 

Could she have done that?  Should she have done that?

LESSIG:  Well, I think—first, we need to put this in context.  You

know, I love Glenn Greenwald, I repeat his words all the time when I give

lectures, as an activist legal scholar.

But the hyperbole in what Glenn is saying here is really something we

have to check.  He said right at the top of your show that there‘s a

complete blank slate here.  That every substantial legal question she has

left unanswered.

That is just absurd.  She has written three extraordinarily important

pieces mapping out a theory of the First Amendment.  That was the first

work she did as a scholar at the University of Chicago.  And when she came

to Harvard in 2000, she wrote what is, I think, one of the most important

articles about presidential administration in the last 30 years.

Now, that‘s two of maybe five central areas of what a justice has to

think about that she already has what I think is an extraordinarily

important theory.  So, the idea that somehow she‘s been sitting zephyr-like

in a way that tries to hide what she‘s saying is just silly.  What she

hasn‘t done is what frankly people like I have done.  What she hasn‘t done

is gone out there and blog and Twitter and been on the road talking about

every single issue.

And, frankly, I‘m not sure she made the wrong call because what she

did by refocusing her energy when she came back to the Harvard Law School

is to build an extraordinary institution and define a set of values which I

think tell us an extraordinary amount about who this person would be as a

Supreme Court justice.

MADDOW:  Both the issue of the—I guess, the sparseness or as the

case you make, the lack of sparseness of her record, that‘s one issue. 

Also, people have been debating what is in her record.  One specific

criticism that has been made of Ms. Kagan that I just discussed with Glenn

concerns her discussion with Senator Lindsey Graham during her confirmation

for solicitor general.  She essentially agreed with him about the

government‘s power to indefinitely detain people without trial no matter

where in the world they were arrested.

Is that a cause of concern to you?  Do you feel that‘s been

misinterpreted?

LESSIG:  I do.  And I believe, as you‘ve said in your question to

Glenn and as Glenn summarized it in the end—this is a little snippet

that has been taken out of context.  When I heard it, I understand her to

be telling us what she expected the Supreme Court‘s view of the law was. 

And it would be radically inconsistent with everything that she had said

before.  Both the things you pointed to and the work that she had written

when she wrote this piece for the “Harvard Law Review.”

I mean, this is another area where Glenn has just flatly misstated the

case.  In his piece on “Democracy Now” on April 13th, he said that in that

article she talked about the power of the president to indefinitely detain

anyone around the world.  Now, that article was written before George Bush,

before 9/11 and before George Bush articulated anything about this power. 

It has nothing to do with the power of the president to detain anybody. 

The power of the unitary executive that George Bush articulated is kind of

uber-power of unitary executive was nowhere even hinted at in Elena‘s

article.

Yet, Glenn has repeatedly assert that‘d she is George Bush and that is

just flatly wrong.  What she said before Lindsey Graham was, in my

understanding, a characterization of her understanding of the law.  She was

not as a solicitor general telling the world how she wants to change the

law, that‘s not her job.  Her job is to show that she can advance the

interest of the government as the government sees it, both the president

and Congress, and she‘s done that job extraordinarily well.

MADDOW:  Professor Lawrence Lessig of Harvard Law School, I have to

tell you, the Supreme Court nomination process, in my view, has become a

process where nominees try to prove how conservative they are, either small

“C” or large “C,” depending on whose president.

Talking with you and Glenn tonight just makes me really wish that it

was a big fight amongst liberals and centrists.  I think it could be

really, really interesting to get in to all this stuff in great detail.  I

really thank you for your time tonight.

LESSIG:  I appreciate it.  Thanks for having me.

MADDOW:  Thanks.

OK.  The great Dahlia Lithwick of “Slate” magazine is on deck to join

us.  She‘s one of our semi-regular guests on this program, for whom we get

fan mail here at the office.  I‘m just saying.

And the great state of Maine, home to the two perceived to be moderate

Republican senators still left in existence just saw its own Republican

Party take a running, naked, shivering leap right out of the mainstream. 

Montana Governor Brian Schweitzer will join us to talk about the

spectacularly entertaining politics going on in the states right now. 

That‘s ahead.

Please stay tuned.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

OBAMA:  Elena is respected and admired not just for her intellect and

record of achievement, but also for her temperament, her openness to a

broad array of viewpoints, her habit—to borrow a phrase from Justice

Stevens—of understanding before disagreeing, her fair-mindedness and

skill has a consensus-builder.

(END VIDEO CLIP)

MADDOW:  If you ask her supporters, one of Elena Kagan‘s greatest

assets as a nominee to serve on the Supreme Court is her unique ability to

both listen to and to appeal to conservatives even though she has not

considered herself to be a conservative.

Elena Kagan, according to the prevailing common wisdom, is the kind of

nominee who will be able to build unexpected coalitions on the Supreme

through her openness, her balance and here estimable powers of persuasion.

Track record check?  Well, acting as the government‘s lawyer, Elena

Kagan has appeared before the Supreme Court a total of six times.  There‘s

audiotape of each of those appearances.  So check it out.

Here‘s what happened when Elena Kagan argued the government‘s case in

Citizens United versus Federal Election Commission last year.  Spoiler

alert here, she lost the case.  You might remember it‘s the one that gave

corporations the right to spend limitlessly in U.S. elections.  Check out

this brief back-and-forth. 

(BEGIN AUDIO CLIP)

JOHN G. ROBERTS, CHIEF JUSTICE, UNITED STATES SUPREME COURT:  It seems

to your shareholder protection rationale, isn‘t it extraordinarily

paternalistic for the government to take the position that shareholders are

too stupid to keep track of what their corporations are doing and can‘t

sell their shares or object in the corporate context if they don‘t like it? 

ELENA KAGAN, BARACK OBAMA‘S SUPREME COURT JUSTICE NOMINEE:  I don‘t

think so, Mr. Chief Justice.  I mean, I for one can‘t keep track of what my

where I hold -

ROBERTS:  Well, you have a busy job.  You can‘t expect everybody to do

that.  

KAGAN:  It‘s not that I have a busy job. 

ROBERTS:  But it is extraordinary.  I mean, the idea, and as I

understand the rationale, is we the government, Big Brother, has to protect

shareholders from themselves.  They might give money.  They might buy

shares in a corporation and they don‘t know that the corporation is taking

out radio ads.  The government has to keep an eye on their interest. 

KAGAN:  I appreciate that.  It‘s not that I have a busy job, it‘s that

I, like most Americans, own shares through mutual funds.  You don‘t know

where your mutual funds are investing, so you don‘t know where you‘re

investing -

ROBERTS:  So it is.  I mean, I understand.  So it is a paternalistic

interest.  We, the government, have to protect you naive shareholders. 

(END VIDEO CLIP)

MADDOW:  If you didn‘t know who the two people speaking were in that

clip, do you think you could tell who was the lawyer and who was the judge? 

Of course the male voice is Chief Justice John Roberts.  The female voice

is the United States Solicitor General, Elena Kagan, the nominee to be the

next Supreme Court justice. 

She was acting then in her capacity as the government‘s lawyer. 

But what you‘ve just heard, that exchange with Chief Justice Roberts is not

just an example of the vague kind of situation in which Elena Kagan would

need to be persuasive as a Supreme Court justice.  That was the actual guy

she would be trying to persuade every day for the rest of her life in this

job. 

And the funny thing is Chief Justice Roberts didn‘t necessarily

sound all that persuaded in that back-and-forth.  To the extent the court

matters in terms of what American policy is, the leaders on the court

matter in terms of defining what American policy is. 

It‘s not just the chief justice. It‘s the center of gravity on

the court, who affects it, who‘s getting their way among those nine

justices.  Based on the evidence that exists, it is maybe worth being all

rational and fact-based about it and wondering if the common wisdom that

Solicitor General Elena Kagan would be a great consensus builder might be

based on a foundation that‘s a little thin. 

Joining us now is Dahlia Lithwick, senior editor and legal

correspondent for “Slate.com.”  Dahlia, thanks very much for joining us

tonight. 

DAHLIA LITHWICK, SENIOR EDITOR AND LEGAL CORRESPONDENT, “SLATE.COM”: 

Thanks for having me. 

MADDOW:  What does Elena Kagan‘s time arguing in front of the Supreme

Court as solicitor general tell us about what she‘d be like as a judge? 

LITHWICK:  I think it tells us exactly what Obama told us today when

he introduced her, Rachel, which is this is a common person.  Listen to her

talking about her confusion with her mutual funds - you know, Ted Olson

doesn‘t confess to having confusion about how his investments go, so she‘s

just a regular person.  You know, she‘s just as confused as the rest of us. 

It also I think goes to the point that you made, which is, it‘s

never clear watching Chief Justice John Roberts that he‘s ever quite gotten

over his days as one of the adept point oral advocates in the country. 

You still often get the sense and that clip really captured it,

that he just assumed, you know, vault the bench and push the person from

behind the lectern and argue the case himself. 

She‘s very different.  If you heard anything there, it‘s

something that sounds like judicial temperament.  I mean, A, she couldn‘t

really get a word in edgewise but there‘s this attempt to say, “No, it‘s

not this.  It‘s not this.  It‘s somewhere in the middle.  Let me help you

reframe this.” 

I mean, this is classic Kagan and this is the thing I think Obama

was trying to say would be a real asset at the court, that she‘d be able to

say, “No, no, no, no, far right wing justices.  You‘re misapprehending the

situation.  Let me tweak it a little and make it more palatable to you.” 

And I think the other thing you may have heard is, I don‘t think

that John Roberts looked all that persuaded and the real question that I

have is whether this strategy or this thought that maybe she has some weird

Svengali-like influence over, you know, the conservative jurists on the

court doesn‘t really miss the sense that I think we have four pretty

locked-in, very strong, very, very coherent ideological views on the right. 

I don‘t see them all that open to persuasion. 

MADDOW:  In terms of the overall style with which justices conduct

themselves during oral arguments, one of the things that you pointed out

that I think is very interesting to those of us who haven‘t been in there

and seen the justices in action, is the prospect that justices are actually

more stylistically aggressive with lawyers who they have more respect for. 

They‘re willing to interject more, to be interrupting - to be

more interrupting with attorneys who they actually feel like do have a

great command of the law.  Is it possible that that explains some of the

real thorny back-and-forth that we‘ve seen? 

LITHWICK:  Certainly, it could.  And let‘s be really careful to say,

we‘re talking in equal six.  We‘re talking six oral arguments before the

court.  And I think it‘s very - really not wise to jump to big conclusions

especially since that first Citizens United argument was her first argument

ever. 

So she‘s learning on the job.  And it‘s clear I think that the

justices are very comfortable with her.  She is, as you heard, very

conversational, very collegial with them.

So I think there is at least some sense that, look, they respect

her.  You can hear it in Scalia.  He tweaks her sometimes at argument. 

There‘s a sort of collegial teasing going on. 

But as I said, I don‘t know that that goes to this larger

question of whether she‘s having a huge influence over them on the

jurisprudential front.  And you know, it all comes down to Anthony Kennedy

at the center there.

And I think the suggestion that she‘s going to have the ability

to really shape and change Kennedy‘s mind the way John Paul Stevens did, I

think again, is a bit of an overstatement of a very complicated

relationship between Stevens and Kennedy. 

One last brief question for you, Dahlia.  One thing that Glenn raised

earlier when I was speaking with him is the controversy over Elena Kagan‘s

hiring practices at Harvard.  Thirty-two tenure-track hires I‘m told - 25

white men, six white women, one Asian-American woman - a very un-diverse

hiring record for somebody who is being billed as a closet progressive. 

Does that play into her confirmability?  Does that arise as a

major political issue for her confirmation? 

LITHWICK:  Oh, I think the White House - it‘s their dream that this

will arise, that she‘ll get to say, what?  So I‘m not for flagrant

application of labels and affirmative action? 

You know, I think that they would love to have this arise as an

issue.  I don‘t suspect it‘s going to be a major issue.  I think it is

something that came up over the course of last week and has raised some

eyebrows. 

But my sense is the big, big theme here is going to be her lack

of judicial experience, and what that means.  I think this is a little bit

of a footnote. 

MADDOW:  Dahlia Lithwick, senior editor and legal correspondent for

“Slate.com,” thanks for joining us tonight.  I have a feeling we‘ll be

having a few more of these conversations. 

LITHWICK:  Thanks, Rachel. 

MADDOW:  One of the nation‘s single most entertaining and interesting

governors ever is due to join us here in studio in a moment, Gov. Brian

Schweitzer of Montana.  And just about everybody had a better weekend than

the Gulf of Mexico did.  BP is doing its best and its best hasn‘t been

nearly, nearly good enough.  Updates ahead.

(COMMERCIAL BREAK)

MADDOW:  Since before anyone was nominated to the Supreme Court seat,

conservative activists have been plotting how to turn an expected

nomination to Republican political advantage. 

According to a conference call from April 22nd obtained by

“Talking Points Memo” today, conservative activist Curt Levey of the

Committee for Justice was already schooling the Republican National

Committee last month to delay a vote on the nominee, whoever it was. 

He said, quote, “The closer we could get it to the election,

frankly, the better.  It would be great if we could push it past the August

recess because that forces the red and purple state Democrats to have to go

home and face their constituents.” 

And it is back at home with the constituents in every state and

all the individual states that the truly entertaining stuff in American

politics right now is afoot.  In Utah, for example, Republican incumbent

Senator Bob Bennett lost his party‘s nomination, thanks to tea party

opposition this weekend. 

In Hawaii, the Democratic Congressional Campaign Committee,

citing infighting, stopped investing in a special election there to replace

Democratic Congressman Neil Abercrombie. 

A Republican candidate is currently leading in the polls there,

even though President Obama won that district with something like 70

percent of the vote.  And then, there‘s Maine, a northeast bastion of

moderate Republicans, right? 

Senators Olympia Snowe and Susan Collins of Maine, for example,

voted for Elena Kagan‘s nomination for solicitor general.  They have

promised her a fair hearing for the Supreme Court. 

But consider what they have got to contend with at home.  Just

one day after both of those senators addressed the main Republican Party

gubernatorial convention in Maine.  The convention specifically advocated a

reform act for term limits that, if enacted, would leave both the incumbent

senators from that state out of a job. 

Members decided to throw out the party platform prepared by the

committee members, in favor of an amendment created by activists with

affiliations to the tea party movement.  Their new platform, among other

things, calls for a mandate that state sovereignty be regained and retained

much of where it‘s gone. 

It asserts Maine‘s 10th Amendment sovereignty rights.  It

prohibits any public funding of ACORN, OK.  It rejects the U.N. treaty on

rights of the child which only the United States and Somalia have failed to

ratify. 

It asserts the principle that freedom of religion does not mean

freedom from religion.  It freezes current stimulus funds.  It prohibits

any further stimulus bills and clarifies that health care is not a right,

it is a service. 

It also advocates the elimination of the Federal Reserve and the

elimination of the Department of Education, because, hey, who needs them? 

It also advocates limiting any senator to only two terms.  Both Senators

Snowe and Collins are currently in their third terms. 

Joining us now for the interview is the Democratic Governor of

Montana, Brian Schweitzer.  Gov. Schweitzer, it‘s great to have you here. 

GOV. BRIAN SCHWEITZER (D-MT):  It‘s good to be back. 

MADDOW:  What are you doing in New York City? 

SCHWEITZER: Staying here for a very short period of time. 

MADDOW:  I understand.  What is going on in the states in politics

right now that people don‘t get in Washington?  Is there a different

dynamic afoot in the states? 

SCHWEITZER:  Not really.  The loud voices are being heard right now. 

But less than one percent of America will ever go to a platform committee

meeting. 

MADDOW:  Yes. 

SCHWEITZER:  So these people show up in Maine and they say, oh, we‘re

going to change everything.  In fact, we‘re going to have a platform that

is blatantly unconstitutional.  They can‘t tell these two senators that

they can no longer serve. 

Now, that‘s a matter of the constitution and that‘s not something

that Maine is going to be able to do all by themselves.  So loud voices are

shouting very loudly, but wait until you get to the general election. 

People will vote for the moderates.  They‘re not going to vote for extremes

on the right and left. 

MADDOW:  So your counsel to Bob Bennett when he woke up after having

been essentially sort of disowned by his own party this weekend is -

SCHWEITZER:  They have a system. 

MADDOW:  Yes. 

SCHWEITZER:  3,500 people get to decide for one million people in

Utah. 

MADDOW:  Yes. 

SCHWEITZER:  He‘s been around for a long time out there.  If he didn‘t

like that system, he probably should have changed it.  He probably can

still get in the primary but he has to run as an independent or write-in or

something crazy.  I don‘t know what that situation is.  But that‘s Utah‘s

problem.  They are a single-party state. 

MADDOW:  And you think though that the overall conventional wisdom

that the extremes are pushing all the moderates out of the parties, that

there‘s no room to be a moderate in either party anymore, especially in the

Republican Party.  Do you think that‘s just not true? 

SCHWEITZER:  Big talk in New York and Washington, D.C. 

MADDOW:  Yes. 

SCHWEITZER:  But in the countryside, they‘re still the same people who

are going to show up and vote in the same elections as they‘ve been voting

in.  These loud voices that have been showing up with tea bags and saying

they want to overthrow this, that and something else. 

A lot of Republicans are embarrassed by them and a lot of

Democrats aren‘t listening to them.  And a lot of independents are going

about their business, showing up for work, educating their kids and doing a

little fishing. 

MADDOW:  What do you think - in terms of - as a Democratic governor in

the great state of Montana, somebody who‘s been remarkably electorally

successful there, in counseling other Democrats around the country, even

other Republicans, to ignore the sort of D.C., Washington fetish stories,

what would you tell people to focus on in terms of where you think people‘s

real concerns are or where the real pulse is for politics right now? 

SCHWEITZER:  If you‘re elected to deliver government, deliver

government.  What people don‘t like is incompetence.  If you are elected in

a position - for example, if you‘re governor, you educate, you medicate,

you incarcerate. 

Your jobs is to keep bad people in prison, good teachers in front

of eager students and take care of single moms have disabled children.  If

you do a good job at that, whether you‘re a Republican or a Democrat,

you‘ll be re-elected or you‘ll be elected. 

MADDOW:  The recession - the perception that government is inherently

wasteful has been driving I think a lot of populist anger in the country. 

You obviously have a common sense - government needs to work.  These -

there are few limited things and do them well sort of message. 

Do you think there is resistance to that overall message that

government does have a role?  Do you think that there is a sort of an

inherently anti-government bias in politics now? 

SCHWEITZER:  The tea party people get up in the morning and they make

phone calls to each other that they‘re going to go to a rally.  And they

use a subsidized telephone system.  Then they drive down a road that was

built by the government that is protected by government workers called

highway patrolmen. 

They get to a rally and they carry their signs and they are

protected by the firemen and the policemen who are in that town.  And then

they eagerly drive home and say, “It was a success.  We‘re against the

government.” 

So you have got to have government that works.  In Montana, we‘re

one of the two states that have a surplus.  We have $400 million in the

bank.  But I‘m still challenging expenses. 

I‘m not cutting government.  We‘re challenging expenses of

government, the same way a small businesses and some big businesses all

over the country are.  It‘s not a sin to be frugal.  It‘s not a sin to

challenge expenses. 

But it is a sin to cut back on education for our most valuable

resource.  And when we‘re expected to keep people in prison, we should keep

them in prison.  Don‘t turn them loose because, well, you‘ve got a bad

budget.  That‘s government that doesn‘t work. 

MADDOW:  Does public service and politics - do they have a bad name

right now?  Would you encourage people to go into public service to go into

politics, or do you feel like it‘s a business that‘s sort of inherently

slimy at this point? 

SCHWEITZER:  You ought to have a thick skin. 

MADDOW:  Yes.

SCHWEITZER:  Because even if you‘re not corrupt, there will be people

who say you are corrupt.  And most of the people who are in politics -

they‘re not corrupt.  If you want to, you know, make a lot of money, go

into business. 

If you are in politics, you inherently don‘t make a lot of money. 

That‘s the way the game is played.  So those who are looking to enrich

themselves personally, they‘ll probably go to Wall Street. 

MADDOW:  Or at this point - at this point I‘m starting to think

disaster cleanup is the way to go, really.  It‘s the only surefire betting

business anymore.  Gov. Schweitzer of Montana, it‘s always such a pleasure

to talk to you, sir.  Thanks for coming by. 

SCHWEITZER:  Good to be back.

MADDOW:  Good to see you. 

SCHWEITZER:  We‘ll see you. 

MADDOW:  Coming up on “COUNTDOWN,” Keith asks Nixon White House

counsel John Dean why the Obama administration wants to maybe alter the

Miranda rules for terrorism suspects. 

But first, on this show, the utter failure to contain the massive

and growing oil slick in the Gulf of Mexico.  We‘ve got details on that. 

We‘ll be right back.

(COMMERCIAL BREAK)

MADDOW:  We had quite a time at the staff meeting this afternoon,

running through all the things that BP stands for - broken pipe, big

problems, brutal prospects, biblical proportions.  Coming up, our

conclusion on a day when the Gulf of Mexico got even oilier.  Please stay

tuned. 

(COMMERCIAL BREAK)

MADDOW:  So Plan A failed.  That four-story containment dome that was

supposed to trap oil as it comes spewing out of the cracked pipes in the

Gulf of Mexico - that was supposed to contain the reported 5,000 barrels of

oil a day.  That didn‘t work. 

The water trapped inside the dome actually made it float and ice-

like crystals formed inside, plugging it up.  It turns out something that

functions in a couple of hundred feet of water might not work at nearly a

mile down in a cold, highly pressurized environment. 

Who knew?  Apparently not BP.  So now, it‘s on to Plan B.  That‘s

a smaller containment dome, and they‘re calling it a top hat.  It‘s only

five feet tall by four feet wide.  It‘s supposed to do a better job of

staying put over the gusher. 

Fingers crossed for Plan B.  We‘ll know about that in about three

days.  If that doesn‘t work, Plan C is something they‘re hopefully calling

a junk shot.  It involves spraying bits of rubber golf balls and knotted

rope into the wellhead, followed by a nice shot of cement to plug it up. 

These options just sound better and better, don‘t they?  Plan C,

the junk one, could happen next week.  Then there‘s the relief well, BP‘s

last best hope.  BP says it‘s been drilling for about a week now and is

actually a bit ahead of schedule. 

But of course, they don‘t anticipate being done in less than

three months.  Meanwhile, the gusher - like options A, B and C, they‘ve

also never tried doing what they‘re doing there with that relief well at

such a great depth before. 

Meanwhile the oil slick is now moving west of the Mississippi

delta, heading been towards fisheries filled with shrimp and oysters and

crabs and crayfish.  Well, to the east, they‘re finding these on Alabama‘s

Dauphin Island - tar balls. 

One piece of good news, the first two oiled birds found after the

spill have been cleaned up and released.  They were relocated today to a

wildlife refuge in Florida on the Atlantic Ocean, where the oil hasn‘t hit

yet.  Two birds cleaned up.  That‘s the sum total of the good news.  Drill,

baby, whatever.

(COMMERCIAL BREAK)

MADDOW:  The great Lena Horne died last night in New York at the age

of 92.  She was famous and beloved as a singer, an actor and a dancer.  But

the thing that made her more than that, the thing that made her a legend

was the grace she maintained while overcoming barriers and unapologetically

emerging as the star that she became. 

Lena Horne was the first black performer to sign a long-term deal

with a major Hollywood studio, MGM.  But early in her career, she got no

leading roles, because her scenes had to be removed from movie prints when

they played in states that wouldn‘t allow showing films with black

performers. 

But while she fought her fight beyond the camera‘s reach, when

the call came for action, Lena Horne always made it look glamorously easy,

even though it never was.  Time and again, throughout her career as an

entertainer and as a civil rights activist, society tried to put Lena Horne

in a box and she had to break out of it. 

This caused some bruises along the way.  Some African-Americans

accused Lena Horne of trying to pass in a white world with her light

complexion.  Max Factor developed a makeup shade especially for her, but

they called it Egyptian.  God forbid there would be makeup for black

Americans. 

Lena Horne once said, “I don‘t have to be an imitation of a white

woman that Hollywood sort of hoped I‘d become.  I‘m me and I‘m like nobody

else.”  Damn straight.  So now, from the 1943 film, “Stormy Weather,”

singing “There‘s No Two Ways About Love,” here is just a few precious

seconds of the irreplaceable Lena Horne. 

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

BE UPDATED.

END   

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