updated 5/11/2010 9:13:32 AM ET 2010-05-11T13:13:32

Guests: Anthony Romero, John Timoney, Michelle Goldberg, Charles Moran, Amy

Klobuchar, Ernest Istook.

HOST:  Obama makes his pick.

Let‘s play HARDBALL.

Good evening.  I‘m Chris Matthews out in Los Angeles.  Leading off

tonight: Game on.  It‘s Elena Kagan for the Supreme Court, so let the fight

begin.  Will Republicans go after her for barring military recruiters from

Harvard law school?  Will Democrats worry that she‘ll let the Court

continue its slide to the right?  We‘ll show you the battle lines at the

top of the show.

Plus: Charlie Crist in Florida, on his own.  Bob Bennett in Utah, out. 

Arlen Specter in Pennsylvania, a political refugee.  A terrible year for

incumbents is getting worse.  Who‘s next?

And the Obama administration wants to interrogate terrorism suspects

without informing them of their rights.  Are they caving to Republicans and

compromising on American values or just doing what is necessary?

Also, the right wing and gays.  First it was Ted Haggard (ph).  Now

the Family Research Council‘s founder on a European vacation with his “rent

boy.”  Why are some anti-gay conservatives having so much trouble

practicing what they preach?

And “Let Me Finish” tonight with voters putting an end to that one

entitlement politicians thought was theirs forever, incumbency.

Let‘s start with the president‘s Supreme Court pick.  Democratic

senator Amy Klobuchar of Minnesota‘s a member of the Judiciary Committee. 

Senator Klobuchar, let me ask you about this military recruiters issue.  I

wonder whether Republicans, your colleagues, will turn it on the—convert

it to that standard narrative, Barack Obama doesn‘t care about defending

the country.  Here he is picking a Court nominee who said you couldn‘t

recruit for the ROTC or recruit for the military at Harvard.


not, Chris.  First, you should know that three law students when Elena

Kagan was dean at Harvard who were Iraq veterans actually wrote in her

defense and said, You know what?  She‘s someone that made a very welcome

atmosphere for veterans here at the law school.  You have the fact that she

addressed cadets at West Point, talked about her life, her security was

there because of them and the work they did on the front line.

This was just simply about her enforcing a policy, a non-

discrimination policy that wasn‘t just about sexual preferences, it‘s also

about gender and race and religion in her own law school.

MATTHEWS:  Well, do you think the recruiters should be allowed to go

to the University of Minnesota and recruit for the military?

KLOBUCHAR:  I think now that the law has been clear with the Solomon

amendment that that‘s happening.  But what I‘d like to see is a change to

that policy.  I think you see Admiral Mullen on the front lines saying he

wants to see it changed, Defense Secretary Gates.  If you have the top

leaders of our military saying that they want to see a change in the

policy, the fact that Elena Kagan has in the past said that that was her

personal opinion to see a change, I would hope that that wouldn‘t be used

against her as the only reason someone would vote against her.  That makes

no sense.

They may not agree with her opinion, but they have to look at whether

she‘s qualified to be a justice on the Supreme Court.  She clearly is. 

She‘s earned the respect of everyone she‘s worked with.  When she was up

for solicitor general, five former Republican solicitor generals supported


MATTHEWS:  So recruitment of military on campus is all right with you?

KLOBUCHAR:  Again, I want to see a change in the policy, Chris, as do

so many of my colleagues...


KLOBUCHAR:  ... as do the leadership in the military, and then we

won‘t have that issue anymore.  I support changing the “Don‘t ask, don‘t

tell” policy.

MATTHEWS:  OK.  Let me ask you, does it disturb you that Elena Kagan

has already said under testimony that she doesn‘t believe there‘s a

constitutional protection for people who seek to marry somebody of their

own gender?  Does that bother you, that she seems to have foreclosed that

issue, which is—may be well be on its way to the Court because of Ted

Olson and David Boies and the challenge to the California law?

KLOBUCHAR:  Again, I want to look at that.  I hadn‘t seen that part of

her testimony.  I was there at the Judiciary hearing for other things that

she commented on and was really impressed by the way she handled questions

from Democrats and Republicans.  But I think that she‘s someone, when she

comes before us, I think she‘ll tell us what I believe a good judge should

do, that she‘ll look at each case on its merits, that she is not going to

be someone that‘s going to come to the case with a set decision because you

look at her record, you look at how she was at Harvard, open-minded to

other points of view, that‘s what she is.  She‘s someone that calls it when

she sees it and she makes a decision.  And that‘s why people admire her

from both sides of the aisle.

Remember, Thurgood Marshall was her mentor.  He adored her.  Abner

Mikva was someone else that she clerked for.  You look down the line at who

she worked for, President Clinton, President Obama, they both have great

faith in her ability to do the job.

MATTHEWS:  Yes, I think Mikva‘s great, too, and certainly, Thurgood

Marshall.  I do worry, though, about a candidate for the Supreme Court

who‘s already made up their mind on this key issue that‘s coming to the

Court.  They may well give cert on this.

Here‘s minority leader Mitch McConnell obviously going after Kagan for

the usual partisan reasons.  This guy is like the “no man.”  Let‘s listen.



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


MATTHEWS:  I have a feeling, Senator, that “Senator Excitement” we

just heard from him there may well have said the opposite had this been

somebody with judicial experience.  He would have said—I‘m just guessing

Why don‘t we pick somebody without judicial experience?

KLOBUCHAR:  Well, first of all, Chris, Justice Rehnquist, who I don‘t

think they would hardly criticize, came in there with no judicial

experience.  You look at Frankfurter, Brandeis—these are great Justices

who came onto the Court without that experience of being a judge.  I

welcome this idea that we could have one Justice on that court that had

some real world experience in terms of the government, in terms of being

out in the private sector.  She‘s had that experience, and I think that

that‘s a positive.

MATTHEWS:  OK, I‘m looking for a rub here.  You say it doesn‘t concern

you, her position on recruitment on campus at Harvard.  It doesn‘t concern

you about her statement earlier about same-sex marriage.  Does it concern

you that she has supported Bush administration policy on the retention of

people we‘re not holding for trial down at Gitmo?

KLOBUCHAR:  Again, when she made that statement—I was there at that

hearing when Lindsey Graham was questioning her, Chris.  She was being an

advocate for the administration‘s position for attorney general position—

Attorney General Holder at that time.  As Justice Roberts said succinctly

at his own hearing, you can be an advocate, but then you also have to be a


So again, I think these are worthy questions.  I wouldn‘t say it

doesn‘t concern me.  These are questions we‘re all going ask her and we‘d

like to hear answers to them.  What I‘m saying is you have to look he at

the big picture of her background here.  What she is, Chris, is someone of

extreme intelligence that‘s going to be a counterweight to Roberts on that

court.  She is someone who can build coalitions.

And what I care most about, Chris, is that we get opinions where

Kennedy‘s on the side of the right—that‘s on the side of doing the right

thing here, as opposed to the right wing.  We want to get some things done

on this Court, and she has proven herself to be someone who can build those

coalitions and is an incredibly smart person who can match Roberts decision

by decision, point by point.

MATTHEWS:  That would be great, if she could lead five, not just four. 

Thank you so much, Senator Amy Klobuchar...

KLOBUCHAR:  Thank you.

MATTHEWS:  ... who‘s...

KLOBUCHAR:  Appreciate it.

MATTHEWS:  Let‘s go right now from Senator Klobuchar from Minnesota to

former Republican congressman Ernest Istook.  He‘s a fellow from the

Heritage Foundation.  Congressman, thank you for joining us tonight.


MATTHEWS:  On what you‘ve seen so far, would you oppose the nomination

or the confirmation of Elena Kagan for Supreme Court?

ISTOOK:  The challenge is, you know, if you‘re hiring someone to do a

job under supervision, someone with this little legal experience, you might

hire.  But someone to have a lifetime appointment to be on the U.S. Supreme

Court for the next 25 to 30 years, you need to know more about what they

really think about constitutional principles, how they are at following the


For example, the case that you were describing about military

recruiters at Harvard, she took the position that the Supreme Court

basically threw out of court.  It was 8-to-0 or 8-to-1.  They said that the

position she took was unreasonable.

So the problem here is we basically have someone who was an ivory

tower academic.  That‘s basically what her legal career has been.  It‘s not

just the lack of experience as a judge, it‘s the lack of experience as an

attorney around the courtroom at all and lack of understanding what does

she really stand for.  People will be comparing her to former Justice

Souter, who became known as the stealth candidate for the Supreme Court.

MATTHEWS:  I just wonder whether a lot—I‘m not—I respect your

opinion, coming from the Heritage Foundation and having been an elected

member of the Congress.  I accept your position.  But I think so much of

this seems so partisan.  I look at Mitch McConnell coming out and saying

her problem is she hasn‘t been a judge, and I can easily imagine Senator

McConnell saying her problem is that she‘s been a judge.  We have too many

judges.  We need regular people on the Court.  We‘ve been hearing—you

know, we—you are laughing...


MATTHEWS:  ... because we‘ve been hearing that rant for a couple

months now.  What do you make of...

ISTOOK:  You‘re right.  People can...


MATTHEWS:  And the reason—exhibit A, Arlen Specter voted against

her for solicitor general, and we all know, given his desperate fight now

for the nomination for the senator from Pennsylvania, he‘ll probably come

out by this weekend and saying she‘s just the greatest thing since sliced

bread.  I mean, it just seems to partisan, the way politicians look at


ISTOOK:  Well, first of all, Chris, I think your point of saying if

someone doesn‘t have a record, people criticize them for that.  If they

have too much of a record, then they get into the minutiae and criticize

them for that.  So you‘re right, that that‘s a cannot win situation.

But Mitch McConnell‘s criticism was not just the lack of experience as

a judge, it was the lack of experience as a practicing attorney.  If you

look at one of the few things that Ms. Kagan has written, she said that the

role of the Supreme Court is to benefit the despised and the disadvantaged. 

Actually, the reason the statues of justice wear the blindfold is because

they‘re not supposed to take sides on whether you‘re liked, disliked,

whether you‘re advantaged or disadvantaged.  That‘s all supposed to be


And statements like that certainly make her appear to be in the—

cast in the mold of a very activist judge.

MATTHEWS:  Yes, I—maybe I agree with you, maybe not.  It seems to

me one place I do—I think you want to correct yourself, Congressman. 

The courts—the 1st Amendment is to protect unpopular opinion, right?

ISTOOK:  It‘s to protect all opinion.

MATTHEWS:  No, unpopular.  Let‘s face it.  You don‘t need...

ISTOOK:  Unpopular included.

MATTHEWS:  ... to protect popular.  You don‘t need to say, I love

apple pie—you don‘t need to protect it, or, I love the flag.  You have

to protect people who may burn the flag and do things you really, really

hate seeing them do, right?  Isn‘t that what the 1st Amendment‘s about?

ISTOOK:  Well, the 1st Amendment, though, Chris—I got to say apple

pie may be popular in some places and unpopular in others.

MATTHEWS:  Really?

ISTOOK:  So you don‘t know exactly from where the case will come. 

Yes.  I prefer cherry.  I mean...

MATTHEWS:  Well, I do, too, actually.


MATTHEWS:  But this is ridiculous.  You‘re saying...

ISTOOK:  Got you out on that one.

MATTHEWS:  You‘re denying—let me ask you this.  You don‘t think

it‘s the job of the Supreme Court to protect the rights of minorities?

ISTOOK:  I think it‘s the right to protect—I think their job it to

protect the rights of minorities, but that is not their sole job.  The job

is also to protect the rights of everyone.

MATTHEWS:  OK.  OK, you‘re from the ivory tower known as Heritage

Foundation.  By the way, the Republican Party‘s just as good at picking Ivy

Leaguers as the Democratic Party.  Check the list.  They‘re all from

Harvard or Yale law school.  So give me a break about your party being the

party of the ‘umble people...

ISTOOK:  I didn‘t say that, Chris.

MATTHEWS:  ... you know, the regular folk.  You said “ivory tower.” 

Give me a break.  Your party picks as many elitists as the other party,

right?  Accept that.

ISTOOK:  I‘ve never seen a measurement on that, but I will grant you

that both parties do pick a lot of people that have certain Ivy League



ISTOOK:  I totally agree with you on that.  That‘s a challenge.  But

again, in this case, a lot of people have the accompaniment of those

credentials with some more real world, in the trenches type of experience. 

Maybe it‘s the type of experience you like.  Maybe it‘s the kind you don‘t



ISTOOK:  But in this case, that appears to be exclusively what she has

going for her.

MATTHEWS:  OK.  Thank you very much, Congressman.

ISTOOK:  Thanks, Chris.

MATTHEWS:  We agree on cherry pie, at least.

Coming up: The Republican purge is surging.  Utah senator Robert

Bennett is the latest knockout.  The guy‘s gone.  Can the Republicans win

by going pure?  I mean, if Robert Bennett‘s not conservative enough, who

is?  But in one minute, Joe Sestak pulls ahead in Pennsylvania.  Talk about

a development.

You‘re watching HARDBALL, only on MSNBC.


MATTHEWS:  Don‘t look now, but Joe Sestak is now leading Arlen Specter

in that hot Democratic primary up in Pennsylvania for the U.S. Senate.  The

“Muhlenberg Morning Call” tracking poll now has Sestak up by 5, 47 to 42,

over Specter.  By the way, he‘s getting close to 50, which is critical. 

The primary is a week from tomorrow, and we‘ll be live in Center City,

Philadelphia, next Tuesday night with all the results, and you‘re all

welcome.  It might even be outdoors. Who knows.  Come and watch us.  We‘ll

be right back.



SEN. ROBERT BENNETT ®, UTAH:  At the risk of getting a little

emotional, I want to thank my staff.  I get dewy-eyed at the dedication of

a parking lot, so this is not unusual for me.


MATTHEWS:  We‘re back.  That was Utah senator Bob Bennett on Saturday

night after failing to get enough support to even make it into the

Republican primary.

How strong is this national purging mood?  Is it strong enough to

knock out even John McCain and Arlen Specter next week?  “The Washington

Post‘s” Eugene Robinson and “Newsweek‘s” Howard Fineman are both MSNBC

political analysts.

Guys, Gene and Howard, I have to feel something for this fellow.  I‘ve

been in those losing nights.  And I‘ve seen it with Frank Moss (ph) out

there, my first boss, out in Utah.  And I have to tell you, when you lose,

you do feel for the staff that worked their butt off.  Gene, your thoughts

here?  The guy‘s gone.  He‘s out of politics, Robert—second generation

senator.  He‘s 76 years old.  Maybe that‘s part of the story.  What do you

think is going on?


think that that probably is part of the story.  He is 76 years old.  But

this doesn‘t usually happen.  An incumbent senator who wants to at least

get into the primary to retain his seat usually gets in.

And I think maybe we have slightly different things happening in

slightly—you know, in different locations.  I‘m not sure the three

examples you just cited are all exactly the same thing.  But is there anti-

incumbent mood?  And should every incumbent be kind of looking over his or

her shoulder?  I certainly think most of them ought to be.

MATTHEWS:  Well, I shouldn‘t argue with a Pulitzer Prize-winning

columnist, but when I try to put together these segments, I look for

thematic material, Gene!  And it seems to me that there‘s a theme here,

which is people are getting tired of certain politicians who‘ve been there

a long time.

Take a look at these numbers, guys.  Here‘s how the numbers came out

this Saturday out in Utah.  A guy named Tim Bridgewater that nobody ever

heard of before, 37 percent.  A guy named Mike Lee, another newcomer, 36

percent.  Bob Bennett, three-term U.S. senator, son of Wallace Bennett,

long-time senator from Utah, an institution in the LDS church, the Mormon

church out there, Howard, a major institution, practically part of the

furniture of Utah politically, kicked out on his butt.  Doesn‘t even get

into the primary.  What‘s going on?  And McCain must be scared, too.  Go



It‘s traumatic, Chris.  And in addition to anti-incumbency, on the

Republican side, there‘s ideology, too.  Having been at a lot of

conservative events recently, having been at tea party rallies, and you

know, the Southern Republican Leadership Conference, the base of the

Republican Party and the grass roots are shifting to the right and shifting

fast.  That means they‘re against anybody in Washington who so much as

shakes hand with a Democrat.


FINEMAN:  This is partly the result of Barack Obama‘s presidency.  We

don‘t regard Barack Obama as a radical in any sense.  He‘s a deal maker

from Chicago.  But to the growing conservative grass roots of the

Republican Party, he represents everything they can‘t stand, and anybody

who deals with him in any way, or the Democratic Party, is suspect.

Bob Bennett was suspect because he was doing a deal with Ron Wyden of



FINEMAN:  ... because he voted for some stuff that some Democrats had

voted for.  the Gallup poll—excuse me—the “New York Times” poll

recently found that 38 percent of Americans identified themselves as

conservatives, which is the highest percentage in the 19 years that “The

New York Times”...


FINEMAN:  ... has been asking that question.  Interestingly, only 25

percent of Americans in that poll identify themselves as Republicans.  So

the Republicans are not that well regarded.—

MATTHEWS:  That‘s great.

FINEMAN:  --  i.e., the congressional Republicans, but the grassroots

considers itself very conservative right now...

MATTHEWS:  That‘s a powerful—I‘m going to remember that number.

FINEMAN:  ... and angry conservative.

MATTHEWS:  Thirty-eight percent of the country is conservative.

FINEMAN:  Thirty-eight percent.

MATTHEWS:  Only 25 percent is proud to call themselves Republican,

which tells me they want a purge. 

FINEMAN:  Right.  Yes. 


MATTHEWS:  Let‘s take a look at Senator Bennett on Saturday. 

I‘m going to go back to Gene. 

Senator Bennett, here he is.  Let‘s listen. 


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. 


MATTHEWS:  Gene, we have seen a pattern—I do see a pattern among

these incumbents.  I was talking to Terry Madonna up in Pennsylvania today. 

He‘s does the polling for the—for Franklin & Marshall up there, that

great poll he does, the Keystone. 

He says—he‘s got a poll coming out Wednesday.  I can‘t give away

his numbers.  But he said what he‘s hearing volunteered—you know, when

they get volunteered comments—people say, we need fresh blood.  We need

new blood.  Specter has been around for a half-a-century.  He‘s in the same

situation or worse. 

And, by the way, here—for your benefit, here‘s the latest

Pennsylvania tracking poll from Muhlenberg.  It shows Sestak up by five. 

And he‘s getting close to 50 percent, Sestak, out of nowhere, even after

that blistering attack by Arlen.

What do you think, Gene, about this situation.  Too old?  Too

Republican?  Too long?  Is that his problem? 

ROBINSON:  Chris, I think that‘s—you‘re surely right, that the fact

that Arlen has been around for so long and is so familiar has got to be

playing a role in this.  And there‘s an anti-incumbent, bring in some new

blood kind of attitude out there. 

I just wonder in terms of the Pennsylvania race if it also doesn‘t

have something to do with the fact that Arlen Specter has—is new to

being a Democrat...


ROBINSON:  ... and how much loyalty are Democratic primary voters

supposed to have toward a guy who was a Republican all those years?  And I

think that helps provide an opening for Sestak. 


MATTHEWS:  Howard, when you‘re in a warfare situation in the South

Pacific, fighting the other side, the Japanese, for example, and one of

their guys gets overboard, you go fish him out of the water.  You will fish

him out of the water if he will accept being a prisoner, but you‘re not

going to let him become captain of the ship, right?

FINEMAN:  Yes.  That‘s right. 


MATTHEWS:  Arlen says, let me aboard.  And anybody who gets in my way

is no good. 

Terry told me today the one thing people don‘t like is he has dared to

attack another Democrat, when he‘s just a brand-new Democrat.  He comes

aboard and says, this guy Sestak is no good.  The old negative ads of Arlen

Specter don‘t work in this context, apparently.


FINEMAN:  OK.  Well, also in this context, Chris, the negative ads

which reek of traditional—what has become traditional politics, politics

as usual, that doesn‘t help Arlen Specter. 

I think the harsh attack that he leveled on Sestak has backfired.  I

thought it was going to backfire.  I told you last week I thought Sestak

had a really good shot here.  When Arlen went after Sestak‘s military

record, yes, he‘s got to answer for his whole 30 years in the Navy, et

cetera, it just reeked of old-style politics.  It reeked of nasty, gutter

fighting.  It allowed Sestak to take the high road. 

Sestak put on an ad with veterans out there defending Sestak.  I

thought it was a disaster for Specter.  And in many ways, if Specter goes

down, that will be the move that really put him out for good, because it

reeked of old-style politics in a year when people want new-style politics. 

They want nothing that reeks of the way business is conducted as usual. 

MATTHEWS:  Yes.  And a pollster told me today that what that ad did,

Arlen attacked him for military record, and what he did was tell people in

the state who had never heard of Sestak, hey, the guy spent 31 years in the

Navy, ended up an admiral. 

They didn‘t know that before. 


FINEMAN:  Right. 


MATTHEWS:  And here‘s Specter, by the way, two weeks ago on why he

voted against Elena Kagan for solicitor general.  She‘s obviously now up

for the court.  Let‘s listen. 



SEN. ARLEN SPECTER (D), PENNSYLVANIA:   I voted against her because

she wouldn‘t answer specific questions on what kind of cases she would urge

the Supreme Court to take.  I will take a fresh look at her as a Supreme

Court nominee, but I think that the Judiciary Committee members, who have

been—myself included, haven‘t been, frankly, tough enough on insisting

on some answers. 


MATTHEWS:  I voted against her before I voted for her. 




I bet that‘s going to turn around, Chris.  And I think he‘s going to

find a lot to like about Elena Kagan in the coming days and weeks.  And

maybe he will find that those answers weren‘t so vague after all.

MATTHEWS:  Why would you think that?  Gene, Gene, why would you think

that?  Why do you think he would come around and like President Obama‘s

court pick at this point in his career? 

ROBINSON:  Well, I do think he‘s running for the Democratic

nomination, and I do think he wants to continue being a senator as a




ROBINSON:  And I think he feels that it would be detrimental to that

aim if he were to oppose her.

MATTHEWS:  I think you‘re right.  I think we have figured this one


Well, here‘s Arizona, the last one in our pick here.  Pollster.com has

McCain still leading by double digits, but he‘s trending downward. 

Howard, here, it looks like this race by August, when they have that

primary—Pennsylvania is next Tuesday—by August, if you follow the

trend lines, who knows, except J.D. Hayworth is no Joe Sestak. 

FINEMAN:  Yes, and I know Joe Sestak. No.


FINEMAN:  I don‘t—I don‘t know.


FINEMAN:  I think J.D. is an engaging guy.  He‘s a quirky guy.  I

don‘t know what will happen by then. 

That‘s—a month is a—a couple months is a lifetime out there. 

But the trend you‘re looking at here, Chris, is, you have got a lot of

senior guys.  You‘ve got—if you—to connect the dots here, you have

got Bennett, who just came off as a guy who had been around a long, long

time.  You have Arlen Specter, who is coming off as a guy who has been

around a long, long time. 

And if you connect that dot out to Arizona, that puts John McCain on

the spot.  There‘s no question about it. 


FINEMAN:  In Kentucky, which we have got coming up next week, it‘s a

little different situation, but there I think the Tea Party candidate could

win the Republican Party as well. 

So, if momentum builds behind people who are seen as Tea Party

favorites, that could create some national momentum that might in the way

of a national election help J.D. Hayworth in Arizona by the time we get to


MATTHEWS:  Well, it‘s no country for old men.


MATTHEWS:  Thank you, Gene Robinson and Howard Fineman.


MATTHEWS:  Tommy Lee Jones should play these guys.


MATTHEWS:  Anyway, up next: the latest chapter in the hard-right

transformation of John McCain.  You have got to watch the latest McCain. 

He sounds like Tancredo.

You‘re watching HARDBALL, only on MSNBC.  


MATTHEWS:  Back to HARDBALL.  Now for the “Sideshow.”

First: more tough talk from John McCain, as promised.  The Arizona

senator, once a moderate immigration reformer, is definitely feeling the

heat from his right.  His opponent, J.D. Hayworth, has got the heat on him. 

The senator‘s new ad shows him walking along Arizona‘s border with a local

sheriff.  Its title?  “Complete the Dang Fence.”



the illegals in America, more than half come through Arizona. 

SEN. JOHN MCCAIN ®, ARIZONA:  Have we got the right plan? 

BABEU:  The plan is perfect.  You bring troops, state, county, and

local law enforcement together. 

MCCAIN:  And complete the dang fence. 

BABEU:  It will work this time. 


MATTHEWS:  Illegals?  It used to be undocumented workers. 

Anyway, it‘s not about the fence, Senator, and you know it.  It‘s

about having a simple, reliable job card to tell you who you can hire.  Are

we going to clean up this situation, Senator, or aren‘t we? 

Now for the dang fence—or, from the dang fence to the dang

birthers.  Today, Democratic Senator Patrick Leahy, chairman of the

Judiciary Committee, was out of the gate defending Supreme Court nominee

Elena Kagan. 

Let‘s listen.



have some Republicans who would automatically oppose anybody.  In fact, I

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

lawgiver, someone would raise, but he doesn‘t have a birth certificate. 

Where‘s his birth certificate?  You know what I mean?  Come on. 


MATTHEWS:  Is it that bad?  Anyway, speaking of President Obama, he

delivered the commencement yesterday at Hampton University down in

Virginia.  Watch as he takes a rather unexpected whack at technology during

his speech. 



and Xboxes and PlayStations, none of which I know how to work...


OBAMA:  ... information becomes a distraction, a diversion, a form of

entertainment, rather than a tool of empowerment. 


MATTHEWS:  I think he was talking to the parents, not the students,

there.  Young people are not going back to where they never were before.  I

would like to see a test, by the way, about whether we‘re learning more,

more solid information by the new media. 

Anyway, for tonight‘s “Big Number,” a look at that Democratic primary

up in Pennsylvania.  New polls show Joe Sestak, the challenger, beginning

to overtake Arlen Specter.  In fact, Intrade.com is now—is not waiting

for the polls.  It now gives the challenger a—catch this -- 70 percent,

seven-in-10 chance of pulling off that big upset next Tuesday, May 18. 

Mark your calendars: Sestak‘s chance for change 70 percent now. 

That‘s tonight‘s “Big Number.”

Up next: a hot debate.  From Times Square to the Christmas Day bomber,

is it time to stop reading terror suspects their Miranda rights?  Big

question for us, us Americans. 

You‘re watching HARDBALL, only on MSNBC.  



“Market Wrap.”

A huge rally for stocks after Eurozone nations agreed on a $1 trillion

emergency rescue package—the Dow Jones industrials soaring nearly 405

points, the S&P jumping 49 points, and the Nasdaq bouncing back strongly,

finishing 109 points higher. 

Sixteen European nations signing off on a $1 trillion effort to

prevent the Greek debt crisis from spreading.  That sent stocks

skyrocketing in the first 15 minutes of trading, and most were able to hold

those gains throughout the day.

Financials led the way, with Bank of America gaining nearly 7 percent,

General Electric shares climbing nearly 7 percent as well.  GE is the

parent company of CNBC and MSNBC.  Homebuilders also rallying, with

Hovnanian, Beazer, and Lennar all up more than 12 percent. 

And the SEC meeting with the heads of the major exchanges, agreeing on

a framework for strengthening circuit-breakers to avoid a repeat of last

week‘s dizzying freefall. 

That‘s it from CNBC, first in business worldwide—now back to


MATTHEWS:  Welcome back to HARDBALL. 

Attorney General Eric Holder opened the door this weekend to modifying

the Miranda rights given terror suspects.  Let‘s listen. 


ERIC HOLDER, U.S. ATTORNEY GENERAL:  And if we are 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 the threat that

we now face.


MATTHEWS: “Our time.”

Does this signal that the Obama administration is giving in to the

right wing?

Joining me right now is John Timoney, who is police commissioner,

Miami police commission, in Philadelphia.  His new book is “Beat Cop to Top

Cop.”  And I‘m going to read every word of it.  There it is.


MATTHEWS:  Also joining us is Anthony Romero, a pal of mine.  He‘s

executive director of the ACLU.

Gentlemen, I was stunned to hear the openness, Commissioner first,

with which...


MATTHEWS:  ... the attorney general admitted, basically, that we‘re

modifying what we all grew up with, whatever you say can be used against

you.  The police officer, the arresting officer, has to say that.  He‘s

always said it.  He‘s forced to say it since Miranda.

Did you hear in that, Chief Timoney, that we‘re not really going to

have that in cases of terrorism? 

TIMONEY:  I did. 

But, you know, back up for a second, Chris.  There always has been a

public safety exception where—where lives are in danger, God forbid

there‘s a child that is buried alive, and you need to find that, and time

is of the essence. 

In the new age of terrorism, the notion that we lock up a guy who may

have information of a backup cell coming in that could cause great harm and

great damage, I think the public exception policy or rule of Miranda


And I think what the attorney general is trying to do I think is

correct.  They‘re trying to look at it with good constitutional scholars

and come up with a policy that doesn‘t throw out the Constitution.

MATTHEWS:  Yes, I guess that‘s the question, Anthony.

I can imagine—we see this case of a guy who obviously is a fugitive

from—he‘s almost hot pursuit case.  What happens if there‘s a bunch of

people who are Arabic-speaking or they have an accent or they have an

Middle Eastern aspect to them and a cop walks in the door and sees five

people arguing about Americans, somebody—did somebody say something

against America here?  Do they become terror suspects?  Do you drop Miranda

with them? 

I mean, where do you draw the line of this safety exception I guess is

the question.


think that‘s exactly right, Chris. 

And I was astonished that the attorney general yesterday said that we

need to broaden the public safety exception.  I mean, break it down first.

When we give up our freedoms for our safety, we lose.  That‘s what the

terrorists are fighting for. 

And, most fundamentally, when you think about Miranda, that‘s the one

right that most people know from TV, the right to remain silent... 


ROMERO:  ... the right that you know that anything will be used

against you in a court of law.  God, that‘s the one right that people get. 

And when you begin to chip away at that one, you‘re chipping away at

one of the bedrock rights. 


ROMERO:  Number two, right, no one can tell us why we need these

additional powers.  You have the public safety exception.  It‘s worked in

both the Christmas bomber and the Thanksgiving—the Times Square bomber. 

We have got them talking.  We‘re using their statements against them. 

What powers does the government have now that it doesn‘t—doesn‘t—that

it doesn‘t yet need? 


ROMERO:  Third—third, it‘s going to be prosecution so much more

difficult.  When you start to open up this Pandora‘s Box, oh, we‘re going

to have so much litigation on our hands.  Fourth, Congress doesn‘t have the

power to chip away the Fifth Amendment.  That‘s a basic right.  That‘s in

the Bill of Rights.

Finally, I‘ll just note for Police Chief Timoney that, ironically,

when this issue last came up in the Supreme Court in 2000, it was law

enforcement officials who weighed in saying that they wanted Miranda,

because it made for law enforcement to be effective and professionalized. 


TIMONEY:  I wrote an op-ed piece on that issue, supporting that

Miranda shouldn‘t be watered down.  However, in the area of terrorism—

this is a whole new era.  I think that‘s what Eric Holder was trying to

deal with yesterday, that we have to look and make sure, for example, there

are some property, that there are protocols in place, that there are

written policies in place, when it does apply, when it doesn‘t apply, so it

isn‘t left up to the individual agent or police officer. 

ROMERO:  We have those policies in place.

MATTHEWS:  Let me go to the chief on that.  I want to ask him, in real

practice, when you are out in the field and you get a suspect, I have

noticed in the case of the Christmas Bomber—we are using these funny

terms, Christmas Bomber, a little whimsical, perhaps, but we use they. 

They both, we were told, were Mirandized at a point. 

Now you wonder what principle applies if the guy is about to

interrogate very aggressively, why do you Mirandize the guy, chief, after

you interrogated him?  What‘s the point at that point?  I don‘t get it. 

Why warn him of his rights after you get all the info out of him? 

TIMONEY:  I think the issue of the Christmas day attempted bomber, he

was not a citizen.  This was an enemy combatant that came in from across

the pond, if you will.  I don‘t think he had any rights any way. 

ROMERO:  That‘s not true. 

TIMONEY:  Different story here is a naturalized citizen.  It‘s a

naturalized citizen.  And there clearly the rights of every American


MATTHEWS:  Let‘s go to that more difficult case.  Let‘s go to the case

of an enemy, someone who clearly is an enemy, an enemy national who is out

for no good.  How do we treat him?  Anthony? 

ROMERO:  Look, the Bill of Rights is very clear.  It‘s every person

entitled to core Fifth Amendment and Fourth Amendment rights.  Just because

you‘re not here as a citizen, doesn‘t mean you don‘t have rights.  This is

America.  Second of all. 

MATTHEWS:  The guy is in an airplane over America, first of all.  It‘s

a question of geography.  Is he here if he‘s committing a crime in the

airplane above us? 

ROMERO:  No, it‘s different.  But both the Times Square and the

Christmas day bombers were on American soil.  I think it‘s a red herring

when we talk about the fact that we‘re going to try to carve out an

entirely new system when our system has worked.  We have prosecuted 300

terrorism cases in the criminal courts.  Our law enforcement officials know

what to do. 

We should give the FBI a big pat on the back for how they handled

these last two cases.  It‘s working.  You have to tell me what is not

working that requires us to revisit something as fundamentally important as

Miranda?  I don‘t get it. 

MATTHEWS:  We‘re going to talk about Miranda a lot.  I want to get to

the chief on this.  I love the way you‘ve had real experience.  You‘re a

real policeman from the bottom to the top.  Let me ask you about this,

profiling.  I‘ve always talked about driving while black.  I have grown up

with—not grown up, but we have heard a lot from minority people about

this, that they feel that just being African-American, for example, on the

Jersey Turnpike, you are stopped.  I‘ve had friends of mine tell me it

happens.  It happens.  It happens.

How do you get around that?  How do we stop police officers from not

giving away their common sense or their nose for crime—we want them to

have that—but to respect people‘s privileges and rights as citizens if

they‘re not doing anything wrong? 

TIMONEY:  I mean, a few things.  One, the policy from the top must be

quite clear, must be written and articulated that racial profiling of any

sort wouldn‘t be tolerated.  That‘s one of the two, part of training.  I

put a program in place in Philadelphia here in 2000 that was pretty

elaborate.  I can‘t go into it now, but to try to identify police officers. 

And even where you think you identify the police officer who may—or may

be engaged in it, the difficulty of proving it and then what to do is

extremely hard. 

MATTHEWS:  Yes, we have talked about it.  It‘s a challenge.  I think

we have to meet it.  We‘ve got to protect the rights of people and we got

to protect people as well.  It‘s always going to be a challenge, right,

Anthony?  It‘s always going to be a challenge.  If it were easy, we

wouldn‘t have you.  We wouldn‘t have the ACLU. 

ROMERO:  And especially if we pass laws like in Arizona that is

legislating racial profiling.  It‘s always going to be a challenge.

MATTHEWS:  I know where you stand, buddy.  Glad you‘re there. 

ROMERO:  You‘ll see us in court this week. 

MATTHEWS:  Thank you.  Chief Timoney, congratulations on this book. 

It reads like you, sir.  You obviously had a big hand in writing every word

of this.  Thank you very much, chief. 

TIMONEY:  Good seeing you. 

MATTHEWS:  Up next, the right wing‘s hypocrisy problem on gays.  This

is one of the novel discussions we‘re to going have around here.  Why are

some prominent anti-gay conservatives been caught, well, being caught in

doing what they preach against?  But in one minute, during the break, why

can‘t Mitch McConnell pick a winner?  This is HARDBALL, only on MSNBC. 


MATTHEWS:  Republicans may have the wind at their backs heading into

midterms this November, but so far Senate Republican Leader Mitch McConnell

is striking out with his endorsements.  Utah Senator Bob Bennett, who

McConnell backed, was bounced this weekend.  Charlie Crist, another

McConnell endorsee, split the party in haste.  And in Kentucky, Trey

Grayson is on the verge of losing his Senate primary to the surging Rand

Paul.  The Kentucky primary is next Tuesday.  And if Paul wins, that would

mean McConnell is zero for three, including at home. 

HARDBALL will be right back.


MATTHEWS:  Welcome back to HARDBALL.  You can file this under

Hypocrisy Watch.  The Miami paper “New Times” broke a story about an anti-

gay leader of the Christian right, Dr. George Rekers, who recently took a

European vacation with a male prostitute who advertised himself on


Remember Evangelical leader Ted Haggard.  He‘s seen here in the

documentary “Jesus Camp.”



debate about what we should think about homosexual activity.  It‘s written

in the Bible. 

I think I know what you did last night.  If you send me 1,000 dollars,

I won‘t tell your wife.  If you use any of this, I‘ll sue you. 


MATTHEWS:  He resigned after his association with a gay man came to

light in 2006, four years ago.  Michelle Goldberg writes about this in “The

Daily Beast” piece, quote, “the Christian Right‘s Gay Problem,” you called

it.  And Charles Moran is a spokesman for the Log Cabin Republicans, a

great group.  That group is Republicans who support gay rights. 

Thank you, Charles.  Thank you, Michelle.  Michelle, let me read

something from your piece that you summarize a 1996 University of Georgia

study.  Here it is, “those most hostile to gay people are often driven by

terror and shame about their own desires.”  That sounds like a

generalization.  Is everybody who‘s against gay rights gay? 

MICHELLE BOLDBERG, “THE DAILY BEAST”:  No, not everybody.  But what

this study shows and what psychoanalysts have argued for a long time—and

this study was one of the first pieces of really empirical evidence to back

it up—basically, the study took two groups of men.  Both groups

identified as heterosexual, both groups study—filled out questionnaires

to measure how homophobic they were.  And they found that there was

significant more arousal when they showed them gay porn among the men who

were homophobic than among the men who weren‘t. 

I think you can see this in some of the rhetoric of the Christian

right.  It suggests that homosexuality is something that is so incredibly

tempting that only the strictest of taboos will stop everybody from

indulging in it.  This is the rhetoric of people who are deep in the


MATTHEWS:  What do you make of that, Charles, that—well, it‘s a

study, maybe it‘s worth something.  What do you make of it? 

CHARLES MORAN, LOG CABIN REPUBLICANS:  Chris, it‘s not just limited to

people who are strongly homophobic.  You see it in a lot of different

sectors of society.  I‘m certainly not going to be making excuses for

people like Ted Haggard and people like Dr. Rekers.  In a lot of areas in

society, we still have institutionalized homophobia.

And it‘s not just religion.  It‘s the rap music world.  We talked a

lot here in the Prop 8 aftermath in California about the influence of

homosexuality within the African-American community.  We know in the reggae

music world, even in country music last, when that country music singer

came out as being a lesbian, there was a lot of apprehension.  We‘ve got a

lot of work—

MATTHEWS:  We‘ve made enormous progress.  This country is so much more

open to gay rights and supportive in military service.  I watch this stuff

all the time.  Absolutely dramatic shift toward openness and acceptance and

more than tolerance, real acceptance. 

Let me ask you this, Charles, I worked in Washington now for—God—

40 years.  And it‘s pretty well known that there are a lot of gay men,

maybe gay women as well, who work in Republican right wing politics.  They

work on Capital Hill as staffers.  It‘s pretty well known, if you talk to

gay people.  You know.  Yet, how many are open about it and how many go

along with the right wing diatribes we just heard? 

MORAN:  This is the problem with Washington, D.C.  Politics is still

an extremely conservative community.  We have a lot of people who,

regardless if they‘re a Republican or a Democrat, on either side of the

aisle, who are still feeling like they can‘t be truly themselves.  We have

plenty of examples on the left as well.  That‘s one of the reasons why so

many different organizations advocate people coming out on their own terms,

being able to it—

MATTHEWS:  Charles, you‘re missing my point.  Why do they go get jobs

with right wingers if they‘re not right wing on these issues? 

MORAN:  Because a lot of us are not single-issue voters.  I‘m clearly

openly gay.  There‘s no gay line for environmental rules or energy rules. 

Just because you‘re gay doesn‘t mean you support taxpayer funded bailouts. 

It doesn‘t mean you socialized medicine.  We‘re not single-issue voters. 

Because we‘re gay doesn‘t mean we adopt liberal positions on a lot of other

issues that focus on society. 

MATTHEWS:  Michelle, let me go to this, you don‘t need a poll to know

that there‘s irony in this country—or study  Irony is the life we live. 

Hypocrisy may come with the territory of politics.  What do you think is

the particular thing about men who are clearly, by any definition, gay, and

they must know it, singing these songs of anti-gay public policy?  What

moves them to do it? 

GOLBERG:  I think that it‘s actually something more than simple—

than kind of complete hypocrisy or complete cynicism.  I actually think

that for somebody like George Rekers or a Ted Haggard, they probably hate

themselves so much that they‘re attracted to the idea that homosexuality is

a choice, or homosexuality is curable, and they‘re kind of desperate to

prove—they‘re desperate to prove themselves and be accepted by the

heterosexual world. 

MATTHEWS:  I guess when you book a flight with RentBoy.com or

something, you think of it as a choice.  I guess that part is, guys. 

Anyway, thank you, Michelle.  I don‘t think your orientation is a choice,

by the way.  God has a lot to do with this.  Anyway, Michelle Goldberg,

thank you.  Charles Moran, sir, I love your organization. 

When we return, let me finish with the end of one thing politicians

have cherished more than anything else, easy re-election.  You‘re watching



MATTHEWS:  Let me finish tonight with a real shocker.  Incumbent U.S.

senators look upon their jobs as long term.  People who get elected to the

Senate look forward to careers there.  The really impressive senators get

to stay there for life.  If they‘re really enduring, you get to become a

building, like Richard Russell, or Everett Dirkson, or my hero, Phil Hart. 

You know, one day you wake up to find yourself not a senator having to run

for re-election every six years.  You‘re no longer an old man, but a strong

new building with grand hallways and elevators.  You‘ve reached the

promised land.  Now you‘re permanent.

I think this is what Robert Bennett of Utah looked forward to, a

slowly fading permanence, becoming if not a building perhaps one of those

statues that each state gets to leave there in the Capitol hallway.  This

Saturday, Mr. Bennett instead got his walking papers.  You‘re free to go,

the roused up Republicans of Utah said in a loud voice.  We‘re looking for

someone new.  You said you only wanted two terms back then.  We gave you


I‘ve wondered for years when the voters who say they want change would

get over this lazy habit of just voting for the most familiar name. 

Pennsylvania Democrats get the vote next week.  They‘ll decide whether

Arlen Specter, a fellow who has been running as a Republican for the past

45 years, who now wants to stay there in the Senate as a democrat, should

get his wish. 

We‘ll see what happens.  One thing that‘s already happening in this

country is that word entitlement.  You hear about it all the time.  We use

it for our kids.  We use it for social programs like Social Security.  We

have to cut out that sense of entitlement.  We have to cut the

entitlements.  You hear it all the time. 

Maybe now we think it‘s time to take away senators‘ entitlement to

staying there until he turns into a building, or at least a statue. 

That‘s HARDBALL for now.  Thanks for being with us.  Right now, it‘s

time for “THE ED SHOW” with Ed Schultz. 




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