updated 5/11/2010 9:01:16 AM ET 2010-05-11T13:01:16

Guests: Jonathan Turley, Ezra Klein, John Dean, David Weigel, Matt Frei.

KEITH OLBERMANN, HOST (voice-over):  Which of these stories will you

be talking about tomorrow?

Fluid on the First Amendment?  Mediocre on checking executive power

abuse, iffy on indefinite detention without trial for terror suspects, and

never a judge.  The Harriet Miers of the left?  Or center-left?  Middle?

(BEGIN VIDEO CLIP)

               

BARACK OBAMA, PRESIDENT OF THE UNITED STATES:  A great lawyer, a great

teacher, and a devoted public servant who I am confident will make an

outstanding Supreme Court justice.

(END VIDEO CLIP)

OLBERMANN:  Or is the strategy: find somebody middle-of-the-roadish

enough who can occasionally drag a conservative over once in a while?

And does that matter compare to the answer of this question: if a

Republican president nominated an Elena Kagan to the Supreme Court, would

you support the nomination?

The politics with Ezra Klein; the law with Jonathan Turley.

The worst may be yet to come—the attorney general talking about

making Miranda rights adjustable.

(BEGIN VIDEO CLIP)

ERIC HOLDER, U.S. ATTORNEY GENERAL:  I think that we have to think

about perhaps modifying the rules that interrogators have and somehow

coming up with something that is flexible and is more consistent with the

threat that we now face.

(END VIDEO CLIP)

OLBERMANN:  What the hell!  My guest: John Dean.

The tea party again defeats a Republican to the benefit of a

Democratic—Bob Bennett out as GOP Senate nominee in Utah.

(BEGIN VIDEO CLIP)

SEN. BOB BENNETT ®, UTAH:  The political atmosphere, obviously, has

been toxic and it‘s very clear that some of the votes that I have cast have

added to the toxic environment.

(END VIDEO CLIP)

OLBERMANN:  Meanwhile, back in Nevada, “chicken lady” can‘t stop

talking about it.

(BEGIN VIDEO CLIP)

SUE LOWDEN ®, NEVADA SENATORIAL CANDIDATE:  They want to make this

about chicken and checks—a check I wrote decades ago.

(END VIDEO CLIP)

OLBERMANN:  Tiger Woods pulls out, possible disk problem.  Only the

reporter didn‘t say “disk.”

(BEGIN VIDEO CLIP)

REPORTER:  And thinks it could be a bulging (EXPLETIVE DELETED) --

disk in his upper back.

(END VIDEO CLIP)

OLBERMANN:  Why does that sound so familiar?

And the best British drama since Shakespeare—the prime minister

will throw himself under the bus in hopes that the Liberal Democrats will

form a coalition with his successor.  Better yet, Gordon Brown‘s successor,

the possible next prime minister of Great Britain?  Ed Balls.

All the news and commentary—now on COUNTDOWN.

(BEGIN VIDEO CLIP)

GORDON BROWN, BRITISH PRIME MINISTER:  That is a judgment on me.

(END VIDEO CLIP)

(MUSIC)

(END VIDEOTAPE)

OLBERMANN:  Good evening from New York.

Swing and a miss.  President Obama today is announcing his second

nomination to the Supreme Court, Solicitor General Elena Kagan, the woman

who argues the administration‘s cases to the Supreme Court.

And in our fifth story: The president igniting a political firestorm

less on the right or between imbecilic responses some Republicans are

admitting Kagan‘s acceptability; rather more so on the left where a host of

concerns arose since and well before today‘s announcement.

Mr. Obama‘s nominee would make history, giving the court three women

simultaneously and also for the first time, giving it not a single

Protestant.  As was widely reported before today however, Mr. Obama was

interested in finding a judge who could—at least on occasion—win over

what remains of the swing vote on the high court, most noticeably Justice

Anthony Kennedy, consensus-building made explicit today as one of the

criteria.

(BEGIN VIDEO CLIP)

OBAMA:  But Elena‘s 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 as a consensus-builder.

(END VIDEO CLIP)

OLBERMANN:  That insistence on relying on more than law alone, on life

experience, already drawing fire from the right as Republicans insist that

becoming the first female solicitor general and Harvard‘s first female law

dean and serving as deputy policy adviser to President Clinton—do not

count as real world experience of nominees that have not served as judges.

(BEGIN VIDEO CLIP)

SEN. MITCH MCCONNELL (R-KY), MINORITY LEADER:  The American people

want a nominee with the requisite legal experience.  They instinctively

know that a lifetime position on the Supreme Court does not lend itself to

on-the-job training.  Of course, one does not need to have prior experience

as a judge before being appointed to the country‘s highest court.

But it strikes me that if a nominee does not have judicial experience,

they should have substantial litigation experience.  Ms. Kagan has neither. 

Unlike Justice Rehnquist, for instance, who was in private practice for 16

years prior to his appointment as assistant attorney general for the Office

of Legal Counsel, a job he had at the time of his appointment to the

Supreme Court.

(END VIDEO CLIP)

OLBERMANN:  Democrats suggested Republicans would push back against

anybody.

(BEGIN VIDEO CLIP)

SEN. PATRICK LEAHY (D-VT), CHAIRMAN, JUDICIARY CMTE.:  I told the

president, I said, you realize if you nominated Moses, the lawgiver,

somebody would raise—but he doesn‘t have a birth certificate.  Where‘s

his birth certificate?

I mean, come on.  Let‘s—we‘re talking about a Supreme Court

justice.  Let‘s look at the qualifications.  Vote up, vote down.  She will

be confirmed.

(END VIDEO CLIP)

OLBERMANN:  Solicitor General Kagan herself doing nothing to ease

Republican suspicions about her populism.

(BEGIN VIDEO CLIP)

ELENA KAGAN, U.S. SOLICITOR GENERAL:  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.

My professional life has been marked by great good fortune.  I clerked

for a judge, Abner Mikva, who represents the best in public service and for

a justice, Thurgood Marshall, who did more to promote justice over the

course of his legal career than did any lawyer in his lifetime.

(END VIDEO CLIP)

OLBERMANN:  Republican chairman, Michael Steele, latched on to a

previous tribute to Justice Marshall, specifically Ms. Kagan quoting

Marshall as calling the original Constitution defective, a critique

explicitly made in reference to the constitutional endorsement of slavery -

that‘s right, the GOP defending slavery again.

               

But it is Kagan‘s defense of Bush and Obama policies on detainees that

has drawn substantive fire—Kagan in her confirmation hearing for

solicitor general arguing the executive branch can call anywhere in the

world a battlefield and thus deny suspects criminal court due process.

(BEGIN VIDEO CLIP)

SEN. LINDSEY GRAHAM ®, SOUTH CAROLINA:  When you talk about the

physical battlefield, if our intelligence agency should capture someone in

the Philippines that is suspected of financing al Qaeda worldwide, would

you consider that person part of the battlefield?  Even though we‘re in the

Philippines, if they were involved in al Qaeda activity?  Holder said, the

attorney general said, “Yes, I would.”  Do you agree with that?

KAGAN:  I do.

(END VIDEO CLIP)

OLBERMANN:  Kagan has also drawn criticism for the meager female and

minority hiring record while she was the dean at Harvard Law, as well as

from the right, attacks and innuendo about her ban on-campus military

recruiting because “don‘t ask, don‘t tell” violated campus anti-

discrimination guidelines, a ban she reversed after the Supreme Court ruled

it would cost Harvard millions in federal grants.

Let‘s bring in Jonathan Turley, scholar of constitutional law and

professor at George Washington University.

Jon, good evening.

JONATHAN TURLEY, GEORGE WASHINGTON UNIVERSITY:  Hi, Keith.

OLBERMANN:  The solicitor general does have—as Republicans pointed

out—remarkably little courtroom experience, especially in what we like

to think of as the modern era.  Does that really matter?

TURLEY:  I have to tell you, I don‘t think it does.  I‘ve always

rejected this idea that Supreme Court justices have to have some standard

resume or standard components.  It‘s not an institution like that.  What

you‘re looking for are people who are interested in the law who have the

intellect to see a legal horizon that may not appear to others, that have a

good temperament, but more importantly are engaged in law.

She has a splendid resume.  It‘s a different resume.  But I find this

all silly as to whether you have to be a judge or litigator.  She has a

wonderful resume.

Those that are questioning her from the left, and I‘ve raised some

questions, it‘s about her views.  Not about her background, which I think

is quite stellar.

OLBERMANN:  She pushed back against the Bush era excesses on detainee

policy in a letter to Senator Graham in 2005.  Is it possible that the

positions that she expressed as solicitor general, as has been expressed as

solicitor general, are merely reflecting her advocacy for the opinions of

her bosses?

TURLEY:  I saw that spin coming off some blogs and I went back and

looked again at these tapes.  It seems to me that she is clearly intending

to send the message that this is her viewpoint.  I thought it was

interesting that she also said that she agreed with the proposition that we

should have viewed ourselves at war since the 1990s.  Those things seem to

me like they were being conveyed as her viewpoints.

It doesn‘t mean she can‘t walk back from that.  People change their

views on the Supreme Court.  But she is viewed with great trepidation by

civil libertarians because of those statements and her role in the

administration.

OLBERMANN:  And to that concern and trepidation, you have your own

concerns about another point that really hasn‘t been emphasized too much in

this day or since the rumor came out about it.  First, her views on the

First Amendment—would you expand on that?

TURLEY:  Yes.  I—actually, that was the issue I flagged on my blog. 

I read her article, her 1996 article.  She‘s a rather limited writing

background.  But what she has written raises some great concerns for those

of us who believe strongly in free speech.

She wrote a piece that indicates that she believes the government can

regulate speech, in a much wider way than most of us feel comfortable.  And

the piece really breaks away from the concept that many of us have of the

First Amendment as a bright line rule protecting speech.  She views it more

as looking at the mode of the government, why is the government regulating.

Now, many of us view that as a slippery slope, a very dangerous one. 

And it seems clear from the article, to me, that she does not view that

bright line as particularly bright.  And she probably shares that, by the

way, with Justice Sotomayor, who had similar views that worried free speech

people.

OLBERMANN:  I‘m going to ask our next guest, Ezra Klein, the same

question, but I want your opinion on it first.  Law is not math.  The

bench, especially at that level, is not free of politics.  Is it better to

have a proud known progressive who always loses as the fourth vote in 5-4

decisions for the next umpteen years or a centrist compromiser who

sometimes wins by nudging over a fifth vote?

TURLEY:  I have to tell you, it may sound Shakespearean, but give me

the principled loser every time.  I‘ll tell you why.  That once you start

to treat things like the First Amendment as something to barter, you

validate the views of the other side.  You suggest that it‘s all fungible

or fluid.

I would rather have justices that state the Constitution as it is—

at least as I believe it is—that the First Amendment may not be

absolute.  But it‘s the thing that holds us together.

And compromises are dangerous.  We saw that with the Fourth Amendment

where so many exceptions occurred, there was more holes than cheese in

parts of the Fourth Amendment.  We can‘t afford that as a free nation in

areas like the First Amendment.  I would rather justices stand on

principle.

And by the way, Keith, as much as consensus building is important,

these justices aren‘t going to change their vote because they like Elena

Kagan or they want to get along.  They vote the way that they believe they

should vote.  And they make compromises in some degree on the doctrine, but

don‘t put too much stake in that.

It‘s much more important in my view to be principled and right than to

be victorious.

OLBERMANN:  Plus one never knows what the makeup of the court is going

to be conservative to liberal from second to second depending on how the

actual tables play out.

TURLEY:  That‘s right.

OLBERMANN:  Jonathan Turley, professor at George Washington University

School of Law—as always, Jon, thanks for helping us try to understand

this.

TURLEY:  Thank you, Keith.

OLBERMANN:  To judge the political lay of the land, let‘s turn as

promised to Ezra Klein of “Washington Post” and “Newsweek.”

Ezra, good evening.

EZRA KLEIN, WASHINGTON POST:  Good evening, Keith.

OLBERMANN:  So, that—is that the gist of this, the question: what‘s

better, the progressive leader on the court who would lose or the centrist

who sometimes wins or could the president have gotten both in another

nominee?

KLEIN:  Well, the big question is, whether or not we‘re facing that

choice because you could have a centrist who loses, you could have a

progressive who‘s bringing people over.  That was the genius of John Paul

Stevens.  He was a wonderful vote counter.  He could craft an opinion that

would bring others onto it.

The thing that the folks in the Clinton White House and Obama White

House will say about Kagan, the thing that they‘re telling people, is that

she is say wonderful political negotiator.  That she‘s good at getting into

a room, understanding where the other side is on an issue, and then using

that understanding to bring them to fashion a compromise that they can live

with.  So, they believe that can move the political balance of the court.

I think there‘s reason to be skeptical.  I sort of agree with Jonathan

on this point that every couple of years when you do a Supreme Court

nomination, we talk about Anthony Kennedy like he‘s an idiot.  We just keep

saying, oh, we need someone who a bit smarter than him and move him.  I

doubt that works and I don‘t see much evidence that works.

That said, we don‘t know that Kagan is a centrist either.  The issue

with Kagan is we actually don‘t know that much about her right now.

OLBERMANN:  And—I mean, if that were the premise you could just

find out what his favorite candy was, and bring a big box of that candy

would be, whoever had the biggest box would be.

KLEIN:  Big (INAUDIBLE) fan of Anthony Kennedy.

OLBERMANN:  Yes.  The nominee has worked for President Clinton,

Justice Marshall, Senator Biden, was hired by Larry Summers of Harvard Law. 

When she was in Illinois, she tried to hire Barack Obama—Professor

Barack Obama.  If she‘s—she‘s not known publicly necessarily from this

important but not exactly front row position in the administration,

certainly, Democratic insiders must know exactly what they are getting.

Is that correct or is that their sales point or—assess that for us.

KLEIN:  That is—that‘s certainly correct.  So, not only that, but

she also worked for a liberal New York judge.  She used to work—a

liberal New York senator, I‘m sorry, worked for Thurgood Marshall.  She has

been in Democratic Party politics for a very long time, which is not

common.

And so, it does mean that what you‘re getting here is a lot of private

knowledge.  Not public knowledge.  But I likened her today to when Joe

Biden appointed his former chief of staff, Ted Kaufman to a Senate seat. 

This was someone who Biden knew really, really, well.

Now, the voters didn‘t know him that well, the media didn‘t know him

well, but Biden did.  And that is how they have done the Kagan pick.  And I

think they like it that way for two reasons.  One, they feel comfortable

with her.  They know her, they like her.  They are very impressed and this

is important too, with her political and intellectual skill set.

And number two, they like the idea that she‘s a bit of a cipher.  It‘s

not horrible for them that the left is a bit disappointed.  It‘s good she

doesn‘t have a huge paper trail that people can use to attack her.  So, to

them this is a bit of a feature.

But I think it should be said that sort of a record in Democratic

politics is a record about what she believes intellectually.  Hard to

believe she‘d be, you know, putting that much into it if they didn‘t think

on some level that these were policies she want to associate herself with.

OLBERMANN:  Why the gap, though, finally, between Republican nominees

who, you know, proudly wear these right wing pro-corporation credentials,

the Roberts‘s and the Alitos and the left has got to essentially try to

divine with a cleft stick where the nominees come from and where they‘re

going?

KLEIN:  I think there are a couple reasons.  One is that—remember

that the right wing has had in recent years some very, very bad

experiences.  John Paul Stevens was a Gerald Ford appointee.  David Souter

was, again, a Republican appointee.  They‘ve got a couple of times where

they go someone they thought they knew what they were getting into, and

really, really didn‘t.  So, they‘ve been more burned I think than the left

has on this.

And did you see, in the Bush era, the attempted appointment of Harriet

Miers who the right really didn‘t know well and they were able to shout

that one down.  But, so, I think it‘s a bit more of a checkered situation

over there than sometimes people realize.

OLBERMANN:  Ezra Klein of “The Washington Post” and “Newsweek—as

always, great thanks, Reza.

KLEIN:  Thank you.

OLBERMANN:  One gets the feeling that court with or without a Justice

Kagan will someday get to rule on a case main-lining back to something just

said by the current attorney general.  Quote, “We have to give serious

consideration to at least modifying that public safety exception to Miranda

rights. “ John Dean—next on COUNTDOWN.

(COMMERCIAL BREAK)

OLBERMANN:  What on earth did this man mean when he said we need to

determine if Miranda rights have the necessary flexibility to handle

terrorism suspects?  Miranda‘s flexibility?  What is this, “Sex and the

City?”  John Dean joins me.

The most painful injury in sports, not to have for forecasters to

pronounce is bulging—what the announcer meant to say.

Did you know American liberals refuse to fight Hitler?  So says she. 

She also looks like she just seen FDR‘s ghost.

And now, better than the best political fiction, the prime minister

will sacrifice himself so the third party will make a deal with his

successor.  That could mean we get to say, “Prime Minister Ed Balls.” 

Ahead on COUNTDOWN.

(COMMERCIAL BREAK)

OLBERMANN:  The FBI questioned Faisal Shahzad for more than three

hours before he was read his Miranda rights—under a well-established

exemption to Miranda for immediate threats to public safety.  But Attorney

General Eric Holder apparently concerned that investigators may push that

exception too far, has now called on Congress to enact a broader exception

to Miranda.

In our fourth story tonight: Would it be a regrettable move to chip

away at the Constitution, this under President Obama?  John Dean will join

us in a moment.

Attorney General Holder did, once again, defend the criminal justice

system‘s capacity to deal with terror suspects, including reading those

suspects their Miranda rights.  But he thinks Congress should revisit those

rights established by the Supreme Court in 1966.

(BEGIN VIDEO CLIP)

HOLDER:  I think we also want to look and make determinations as to

whether or not we have the necessary flexibility, whether we have a system

that can deal with the situation that agents now confront.  We‘re now

dealing with international terrorism.  If we‘re going to have a system that

is capable of dealing in a public safety context with this new threat, I

think we have to give serious consideration to at least modifying that

public safety exception.  And that‘s one of the things that I think we‘re

going to be reaching out to Congress to do, to come up with a proposal that

is both constitutional but that is also relevant to our time and a threat

that we now face.

(END VIDEO CLIP)

OLBERMANN:  No indication that a broader exception to Miranda based on

international terrorism would even satisfy those bending the issue for

political purposes who do not want terrorist suspects at all put through

our nation‘s criminal justice system.  Rudy Giuliani, for instance,

supported Holder‘s proposal.  He said it would still be better to hold

suspects like Shahzad as military detainees.  Giuliani joins the likes of

Senator Lindsey Graham and Senator Joe Lieberman, who have offered various

ideas about how to discard Miranda rights in the case of a terror suspect.

Let‘s bring in, as promised, former White House counsel, now columnist

for FindLaw.com, John Dean, also the author of “Blind Ambition.”

John, good evening.

JOHN DEAN, FINDLAW.COM:  Good evening, Keith.

OLBERMANN:  Are we clear yet to any degree what Holder is proposing

here?  Do you have any idea?

DEAN:  Well, I actually caught the clips and then thought that isn‘t

very clear.  So, I went back and looked at the entire transcript and I

wasn‘t clear at first if he was really responding just to leading questions

or if he‘d actually had some proposal that he had in mind at the Justice

Department.  It appears the latter—although I don‘t think he was ready

to announce it Sunday—but rather it was forced out because of the

questioning.

OLBERMANN:  It would seem as if a public safety exception to Miranda

would be enough of a dilution and we just saw its effectives in practical

real-time circumstances in New York, in the capture and arrest and

interrogation of Shahzad.  But why would anybody think that‘s not

sufficient?

DEAN:  Well, it‘s certainly good political grandstanding.  The right

has been hammering on this on how tough they are on terrorism, how weak the

Democrats are.  So, they keep pounding that drum.

It looks like Mr. Holder and the administration is trying to respond

to that.  They‘re never going to satisfy it.  In fact, we don‘t need

legislation.  There‘s no evidence that Miranda has ever been a problem for

law enforcement.  There‘s no evidence that it‘s a problem now with

terrorism.  There‘s no evidence they need anything more in the exception

than they already have.

OLBERMANN:  In 2000, the Supreme Court addressed the Miranda case or a

case that was supposed to essentially overrule Miranda.  Can you fill us in

on that?

DEAN:  Yes, they—that was the first real sort of constitutional

test of Miranda.  A lot thought because of some of the earlier opinions

he‘d written that Rehnquist would overturn it.  It turned out in the

Dickenson case there was no such overturning of the—based on the

statute.

Congress had tried to really redefine the whole area of Miranda

unsuccessfully.

That isn‘t the case here.  There happens to be already an exception

that Rehnquist wrote in another opinion later in ‘84 while he was on the

Burger Court and that‘s really the prevailing law.  And I believe there‘s

ample room within that exception today for terrorist investigations.

OLBERMANN:  It‘s curious, certainly, the timing of this that, as you

suggest, that it would sound like Mr. Holder had an idea but wasn‘t really

ready to announce it and yet addresses sort of announce there‘s is an idea

the day before a Supreme Court nominee is revealed.  Are these things—is

it just juxtaposition or are these somehow related?  Is this going to—is

this going to come up in the Kagan confirmation hearings and perhaps was it

intended to come up in the Kagan confirmation hearings?

DEAN:  I‘m sure it‘s going to come up in the Kagan confirmation

hearings.  I‘m sure she will dodge the question as all good nominees do. 

They don‘t say what they will do or not do when they‘re on the court.

What‘s interesting, though, is as solicitor general, while she‘s still

there, she could resolve this problem.  There is a split in the circuits. 

There has been for years.  There‘s a broader interpretation of the

exception.  There‘s the very narrow interpretation of the exception.

I‘m sure there are enough cases that they could pull one up as

solicitor general and she could litigate this before the court.

OLBERMANN:  So, as we‘re on the subject of Kagan moving slightly away

from the subject of Miranda, Jonathan Turley has concerns.  In my layman‘s

way, I have concerns.  Do you have concerns about this nomination?

DEAN:  Well, we don‘t know much about her, Keith.  That‘s the thing. 

And she‘s not—I think it‘s good we‘re not having another judge

appointed.  Some of the greatest justices we‘ve had have not had prior

judicial experience.  I think that brings a fresh view into the court.

She‘s obviously bright.  She has progressive background.  Yes, there

are some things she‘s done.  Really, I think, though, in an institutional

sense, that we don‘t know what her personal feelings are on some of these

things she‘s done when working within an institutional context.  So, I‘m

actually a little encouraged.

I like her smarts, if you will, that somebody can get in there and

tangle with a Scalia and maybe move a centrist like Kennedy around a little

bit and move the court in a direction I think is healthy.

OLBERMANN:  John Dean, Nixon White House counsel, columnist for

FindLaw.com more recently—great thanks, John.  Have a good night.

DEAN:  Thank you, Keith.

OLBERMANN:  Theoretically, some day, the tea partiers might realize

that by knocking off the moderate Republicans they are, maybe not this

November, but eventually going to make it easier for some Democrat

somewhere.  Not so soon, though, I think we can‘t do a segment on the

purging of Senator Bennett of Utah—ahead on COUNTDOWN.

(COMMERCIAL BREAK)

OLBERMANN:  A warning that Oddball will begin in about a minute with

two television bloopers that you may find offensive, or hilarious, or

hilariously offensive. 

First, the Tweets of the day.  For all I know, these real all typos. 

There was some sort of Twelt down today.  Third place, from OTooleFan—

that‘s Don Millard (ph) -- “Sean Hannity talks about Ronald Reagan the same

way a five-year-old talks about Superman.” 

From a friend of mine, the frustrated and wind-addled field reporter

for the New York Mets‘ telecast, Kevin Burkhat, who has apparently had it

with the Shirako (ph) winds that made the weekend hell at the Mets‘ home,

Citi Field.  “Dear Citi Field wind, you suck.  Enough is enough already.” 

Speaking of Citi Field, it was there yesterday that one of those

moments was avoided.  A friend of mine the is also an acquaintance of Bill-

O‘s.  Bill-O was sitting in my friend‘s box, so I sat in the press box

instead.  I thought it was funny.  Didn‘t seem that way according to a

conservative Tweeter.  Apparently Bill O‘Reilly got tickets to the game for

Mother‘s day and @Keith Olbermann is whining about it because it should

have been him. 

Bill Orly.  Bill Orly?  Ladies and gentlemen, we have a new nickname. 

He‘s Bill Orly.  They told me Twitter was great and now I believe it.  Or

the other thing too.  That‘s my mistake.  Now let‘s see the other ones. 

Play oddball.

Makes fun of bulging things and then says what I said, sorry.  To the

Golf Channel, when an anchor identified by the “Huffington Post” as Wynn

McMurray (ph) tried to zip through an explanation of Tiger Woods‘ bulging

disc problem.  Again the warning, some viewers might find this offensive. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  He says he‘s been playing with a bad neck for

about a month and thinks it could be a bulging—disc in his upper neck. 

He has plans to get an MRI next week.

(END VIDEO CLIP)

OLBERMANN:  But that was hardly the first time a sports anchor

accidentally uttered that phrase while describing that problem.  The year

was 1996.  ESPN. sonny.  My co-anchor, Steve Levy, was reporting about New

England Patriots Quarterback Maurice Hearst who was out with a—same

warning. 

(BEGIN VIDEO CLIP)

STEVE LEVY, ESPN ANCHOR:  The agent claims that at the request of the

team, Hearst has been playing with a bulging dick—disk in his neck since

the start of the season. 

(END VIDEO CLIP)

OLBERMANN:  We laughed silently for seven minutes. 

Remarkably, a CNN sports anchor said it about a baseball player named

Steve Balboni in the late 1980s.  Only he said he had two bulging—well,

you know. 

To Vasderas (ph), in Sweden, where Tony Bergmand (ph) has set a new

world record for the fastest vertical run, in which a person runs as he

rappels from 100 meters to the ground.  The vertical run was created in the

last ‘60s by the military as a way to rapidly descend from a helicopter,

which seems to support this question: is that guy really running, in any

sense of the word?  More like a really fast control—ah!

Not that there‘s no skill involved, mind you, in doing that.  Anyway,

Mr. Bergmand, for dropping 100 meters in 34.7 seconds—Ah—

congratulations. 

All right.  No more of those jokes.  Although the next prime minister

of England may be Ed—well, maybe be David Miliband.

(COMMERCIAL BREAK)

OLBERMANN:  At their state‘s nominating convention this week, Utah

Republicans decided that the three-term senator who had been endorsed by

the NRA, who had a perfect rating from the National Right to Life

Organization, and a 90 percent rating from Americans for Tax Reform, just

was not conservative enough for them.  In our third story, Senator Robert

Bennett of Utah is the first incumbent of 2010 to lose his own party‘s

nomination.  Republicans are eating their own, but first boiling them in a

pot of tea. 

Saturday in Salt Lake City, 3,500 Republican delegates picked the top

two candidates for a June primary.  Senator Bennett was challenged by

businessman Tim Bridgewater and Attorney Mike Lee.  The latter pair courted

Tea Partiers, attacking Bennett from the right for the vote on the Tarp

program and for the health care bill he co-sponsored with Democrat Ron

Wyden. 

In February, Lee received an endorsement from Dick Armey‘s group,

Freedom Works.  And when it was announced that Bennett had finished third

in a three man race, the Lee crowd erupted unfurling multiple “Don‘t Tread

On Me” flags. 

As for Bennett, a write-in candidacy is possible, though an

independent bid is not.  He missed the filing date for that.  After defeat,

he spoke to reporters. 

(BEGIN VIDEO CLIP)

SEN. ROBERT BENNETT ®, UTAH:  The political atmosphere obviously has

been toxic, and it‘s very clear that some of the votes that I have cast

have added to the toxic environment.  Looking back on them with, one or two

very minor exceptions, I wouldn‘t have cast any of them any differently. 

(END VIDEO CLIP)

OLBERMANN:  Let‘s turn now to David Weigel, “Washington Post”

political reporter and author of the blog “Right Now.”  Dave, good evening. 

DAVID WEIGEL, “THE WASHINGTON POST”:  Good evening, Keith. 

OLBERMANN:  All right, 3,500 delegates sent Bennett packing.  Was it

just a function of the Tea Party group targeting a sample, persuadable

sample to get their first real victory or was there something more deep

about this? 

WEIGEL:  It was largely and specifically the first thing you

mentioned.  The Club for Growth, which has taken on multiple incumbents

over the course of a decade like this, saw this opportunity a long time ago

and started helping Tea Party activists organize in order to take over

party caucuses.  On March 23rd, they held party caucuses.  They selected

mostly anti-Bennett, pro-Tea Party delegate.  Not just for one of these

other candidates, but just anti-Bennett.  That was the key thing. 

A lot of people point out today that was when he lost.  He had no

chance with this electorate to get reelected. 

OLBERMANN:  He had the support of Karl Rove.  He had an endorsement

from Newt Gingrich.  He had an endorsement from Mitt Romney.  That used to

cover the whole spectrum on that side of the equation.  If he had not voted

for Tarp, would he still have his job come November, or would they have

found some other pretext to do this? 

WEIGEL:  I think that‘s almost indisputable.  Utah is a state that

occasionally will kick out an incumbent in this convention.  Without

getting too into the weeds, it‘s a strange process where if you get more

than 60 percent at the convention you‘re the nominee and everyone gets

knocked out.  It‘s unlike any other state.  But Tarp just stuck to him. 

This is a Republican president and a Republican treasury secretary asking

for a bill that the Republican whip in the House, Eric Cantor supported and

Paul Ryan supported. 

But just it‘s unforgivable if conservative voters have a chance to

look at your record again to have that on there.  And the fact that he

endorsed the health care bill with Wyden, that was part of it.  But it was

Tarp that was toxic.  When he referred obliquely to one of the votes he

might have cast a different way, I think that‘s what he meant. 

OLBERMANN:  Covering this stuff as intensely as you do, do you ever

wonder if the Dick Armey funding stories or the Club for Growth stories are

just a cover, that in reality the Tea Parties are secretly funded by the

Democratic National Committee?  And if so, are the Democrats in any

position to exploit perhaps this situation in Utah? 

WEIGEL:  Well, they do celebrate whenever this happens.  And they

think they‘ll have a better shot at a couple of House seats if Tea Partiers

nominate somebody who can‘t win.  In this case, Utah is a very tough nut to

crack.  They have a candidate, but they‘re not optimistic. 

But in Arizona, if J.D. Hayworth beats John McCain, they‘ve got a

Phoenix City councilman who they think could win that.  Charlie Crist, if

he ends up winning that three way race, or if Kendrick Meek wins in

Florida, that‘s better than they could have had in a two-way race. 

They actually had a bad situation this week in Hawaii where there was

an inter-Democratic feud that cost them the seat.  But generally, they‘re

quietly cheering, and they‘re waiting to unleash a lot of opposition

research once these nominees are well chosen. 

Utah, not so much.  Other states like South Dakota, not Ohio yet, but

other states they‘re are hoping and sitting as the Tea Party candidates

make these challenges. 

OLBERMANN:  Is there even a prospect that the election of one of these

guys could actually work to the Democrats‘ benefit?  If you get somebody

from an extreme and put them in the national spotlight, in the Senate more

so than the House, you might look like a clown? 

WEIGEL:  It hasn‘t worked like that in this congress.  Democrats love

to make fun of Michele Bachmann.  Every day, Michele Bachmann will say

something that they put out a press release ad.  They raise money. 

Indisputably, they can raise a lot of money off things like that.  But as

long as the country‘s angry at politicians, the Michele Bachmann type of

politician, the Mike Lee type of politician is not somebody that makes the

rest of the party look bad.  Their hope is that, like 1994, the electorate

is so angry that it sends a couple Republicans who embarrass everyone.  The

country‘s in a little bit less of a foul mood in 2012 and those guys go

down, Republicans have to apologize for them. 

I mean, Democrats love the Birther movement, for example, for that

reason.  They think some people are going to roll in and make everyone look

bad.  But so far they still should be sweating this electorate.  Rather

than helping a Democrat squeak through, in a lot of cases, they‘re going to

end up with somebody much more right wing than, say, Bob Bennett. 

OLBERMANN:  Clearly in this case.  Dave Weigel of the “Washington

Post,” as always, great thanks. 

WEIGEL:  Thank you very much.

OLBERMANN:  The British political plot thickens by the hour.  The

prime minister will resign in the hopes that the third party will form a

coalition with his successor. 

Proving a history degree is useless if you do not believe any of the

facts, Coulter-Geist is back with a whopper, that liberals defended Hitler. 

Also, what‘s with the evil eye? 

And when Rachel joins you at the top of the hour, the case against

Supreme Court Nominee Kagan with her guest, Glenn Greenwald.

(COMMERCIAL BREAK)

OLBERMANN:  The British drama series worthy of an introductory

explanation from Alistair Cook.  Only it‘s real life.  The Labor Party can

stay in charge, but only if its leader quits.  So he quits.  Back to London

with BBC America‘s Matt Frei.  That‘s next, but first tonight‘s worst

persons in the world. 

The bronze to Samuel Wuerzelbacher, Joe the unlicensed plumber. 

Interviewed by the increasingly bizarre AOL News.  To be fair, he was

asked, “if you could punch one famous person, who would it be?”  “Bill

Maher jumps to mind right away.  It would be fun to lay that boy out.  But

I‘d look like a bully because he‘s so much smaller than I am.”  But you

look like a bully now. 

Before we jump all over Mr. Wuerzelbacher, however, let‘s move on to

the next AOL question.  “Have you ever stolen anything?”  “When I was a

very little boy --  I don‘t exactly remember it—I guess we were going

through a department store and I stole a pair of silk female garments and

put them beneath my butt because I apparently liked how it felt.” 

Moving on.  Moving on.  Moving on. 

The runner-up, Coulter-Geist, with another hilarious mistake proving

you can get a degree in history and still not know a damn thing about

history.  Her latest sputter session with Bill-O—I‘m sorry, Bill Orly-

Tates.  Coulter, “you will find liberals always rooting for savages against

civilization.”  “They didn‘t root for the Nazis against civilization.” 

“Oh, yes, they did.  It was only when Hitler invaded their precious Soviet

Union that, at the last minute, they came in and suddenly started to say

oh, no, now you have to fight Hitler.” 

Right, those Republican isolationists in this country, the America

first crowd, like German American Bund, and Charles Lindbergh, they were

all liberals.  And FDR arranging lend-lease with Churchill and trying to

get around the Neutrality Act that Gerald Ford and Colonel McCormick and

Regnory (ph) and all the other negotiate with Germany crowd supported—

FDR must have been a Republican. 

While we‘re here, one other thing.  What‘s—what‘s with the eye? 

What‘s with the left eye?  I mean, was it always like that?  It looks like

it‘s trying to escape or something. 

Anyway, our winner, Marry Fallon, Congresswoman from the Oklahoma

fifth, running for governor in her state.  She like most Republicans claims

to be upset about wasteful government spending.  So upset that she sent out

a flyer, beautifully made, to everybody in her district, in which she notes

she voted against the Stimulus bill, against health care reform, against

the entire 2010 budget, and, quote, potential job killing cap and trade

legislation.  This so she can, quote, “reduce the tax burden on all

Americans.” 

Except, what is that bit of fine print on the front of that thing? 

This mailing was prepared, published and mailed at taxpayer expense.  So

you‘re going to reduce the tax burden on Americans by charging us for the

spiffy, ego-trip postcards telling us how you‘re going to do it.  Seems a

little—what‘s the word?  Oh, yeah, what Jon Stewart said. 

Congresswoman Mary “do as I say, not as I do” Fallon, today‘s worst

person in the world.

(COMMERCIAL BREAK)

OLBERMANN:  Four days after the election, Great Britain still does not

have a new government.  And the newest, likeliest solution is almost

literally the severing of the proverbial Gordian knot.  Our number one

story in the COUNTDOWN, Prime Minister Gordon Brown has agreed to resign as

part of an as-yet not completed deal by which the third party Liberal

Democrats will swing their support to Brown‘s successor.  He will, in

essence, end his own career to keep his own party in power. 

Mr. Brown, at 10 Downing Street, making a surprise announcement. 

(BEGIN VIDEO CLIP)

GORDON BROWN, BRITISH PRIME MINISTER:  I have no desire to stay in my

position longer than is needed to ensure the path to economic growth is

assured and the process of political reform we have agreed moves forward

quickly.  The reason we have a hung parliament is that no single party and

no single leader was able to win the full support of the country.  As

leader of my party, I must accept that that is a judgment on me. 

(END VIDEO CLIP)

OLBERMANN:  Mr. Brown will remain in office for the next few months,

helping oversee talks for a new government, and then step aside as PM and

head of the Labor party once a new Labor leader is elected.  If all of that

goes according to plan, it should happened before the party‘s annual

conference in September.  Getting pushback from members of his own party

over talks with the Conservatives, the Lib Dem leader Nick Clegg calling

Mr. Brown‘s resignation, quote, important. 

(BEGIN VIDEO CLIP)

NICK CLEGG, LIBERAL DEMOCRATIC PARTY LEADER:  We think it‘s the right

thing, the responsible thing to now open talks on exactly the same basis as

we‘ve been having with the conservative party with the Labor Party.  Us, of

course, continuing discussions with the Conservatives. 

(END VIDEO CLIP)

OLBERMANN:  Mr. Clegg maintaining the talks with Conservatives are

still constructive.  As for Conservative leader David Cameron, whose party

did manage to win the most seats, he said he is willing to go the extra

mile to secure the supports of the Lib Dems, but only to a referendum on

voting reform, not actual voting reform legislation. 

Late tonight, the current foreign secretary, David Miliband,

confirming that Labor would not elect a leader until a coalition government

was in place.  Mr. Miliband is thought to be a front-runner for the

position, along with, yes, our hero, school secretary Ed Waltz.  We‘ll put

down the silly for a moment and rejoin the anchor of “BBC World News

America” Matt Frei in London.  Thanks again for some of your time, Matt. 

MATT FREI, “BBC WORLD NEWS AMERICA”:  Thank you. 

OLBERMANN:  When we left you on Friday, the one thing you and I agreed

on, Brown would never quit so his party could stay in power.  Should we, in

fact, have seen this coming?  Isn‘t this exactly the sort of thing he would

love to do, the sort of stoic, do it for queen and country self-sacrifice? 

FREI:  You‘re being very kind about him.  He‘s also the man who

cravenly sought power for more than a decade while Tony Blair was stealing

the show the whole time.  I think the thing about Brown is he had always

yearned, especially after this election was out, for an exit with dignity,

some shred of dignity, a little fig leaf of it.  And he got that tonight by

effectively saying to the country, we need some stability, we need to have

these negotiations in open.  There is something that my party and my

coalition can offer.  And therefore I‘m going to bow out. 

That was the minimum price that Nick Clegg and the Liberal Democrats

demanded and they got that.  The party clearly said to Gordon Brown listen,

mate, it‘s time to leave.  Otherwise, we‘re all going to be in trouble. 

What happened is you have a sort of rainbow coalition with just about every

color in it, apart from Brown. 

*

OLBERMANN:  The first part of what the Lib Dems wanted, they‘ve

gotten.  Brown‘s head, as you said.  The second part was this voting

reform.  Explain what it is that is wanted here and how, if they go for it

whole hog, how that would change the structure of British politics. 

FREI:  Basically, what the Liberal Democrats and before that the

Liberals have always wanted is what we call proportional representation. 

In other words, if you get 23 percent of the vote, you get 23 percent of

the parliamentary seats.  A bit like in Israel or in many European

countries.  At the moment, they‘ve got 23 percent of the vote, but only 10

percent of the seats.  So they would never under the current system—or

rarely ever get into a position where they can actually be in power. 

What you‘ve had over the years, over the decades, Keith, is a duoply

of power between the two big parties, Labor and the Tories.  What they want

is a shared representation in parliament.  This is what the Tories have

resisted giving them.  This is something else we talked about on Friday. 

If you give them more seats in parliament, it means fewer seats for the

Tories and, indeed, for Labor. 

But that is the bottom line for them.  They will not engage in the

coalition unless they get some degree of proportional representation, what

we call the alternative vote, or AV plus.  It all gets terribly complicated

at this stage.  The point is, the Tories were not prepared to give it to

them, until tonight, until after Gordon Brown said he would resign.  Then

they suddenly said, you know what?  You can have a referendum on electoral

reform.  Labor said, forget the referendum, we‘ll give it to you anyway. 

The problem is the one people not being consulted in all this are

those very strange people, the electorate.  You remember the people who

went to the polls last week. 

OLBERMANN:  The conservative response to—it is along that line to

this is outrageous.  This is an unelected prime minister, if this plays out

the way it looks like it‘s going to.  To some degree isn‘t that a red

herring or perhaps an irrelevancy?  Gordon Brown was unelected prime

minister.  John Major was when he succeed Margaret Thatcher.  Churchill in

1940.  I think William Pitt the younger came to office without election. 

Is it essential that you be voted in?  Can‘t this work? 

FREI:  I covered William Pitt the younger and that was very, very

controversial indeed.  As you may remember yourself, of course.  There was

a great line that John Major came up with.  Indeed, he was hoisted into

power while Margaret Thatcher was shuffled into the background, stabbed in

the back.  And that was an unelected prime minister like me is like living

in sin with the electorate.  To be honest, we‘ve had too much living in

sin.  John Major did it, but then he got elected finally.  Gordon Brown has

been doing it for the last few years and failed to seize the opportunity as

soon as he got into power to try to consummate the marriage. 

So, in a way, that‘s the price he‘s paying for now.  To do that again,

and to basically have a prime minister who did not take part in that famous

debate that we all covered a few weeks ago, the prime ministerial debate,

which is the most presidential thing this country has done, is to basically

snub your nose at the electorate.  You can‘t turn around after this

campaign and say, we‘re really a parliamentary system.  It‘s all about the

number of MPs and majority party.  And they‘re trying to say that, but it‘s

become, by default if not by design, a very presidential system. 

OLBERMANN:  I have a joke about a potential prime minister that fits

in with some of your last analogies, but unfortunately we‘re out of time. 

So I can‘t do it.  Matt Frei, the anchor of “BBC World News America,” it‘s

so much more fun—

FREI:  Wouldn‘t be Ed Balls, by any chance, would it?

OLBERMANN:  Perhaps.  More fun for us to watch from afar what would

panic us if it were happening here.  Thanks again for you time, Matt. 

FREI:  Thanks.

OLBERMANN: That‘s COUNTDOWN for this 2,566th day since the previous

president declared mission accomplished in Iraq.  I‘m Keith Olbermann, good

night and good luck.

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

BE UPDATED.

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