updated 5/13/2010 9:32:41 AM ET 2010-05-13T13:32:41

Guests: Tom Goldstein, Ezra Klein, David Corn, Markos Moulitsas, Richard

Wolffe.

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

be talking about tomorrow?

               

The attack on Elena Kagan and by extension on Justice Thurgood

Marshall.  The senator from the Keebler tree speaks.

(BEGIN VIDEO CLIP)

               

SEN. JEFF SESSIONS ®, ALABAMA:  She clerked for two activist judges.

(END VIDEO CLIP)

OLBERMANN:  But is Kagan clerked only for Judge Abner Mikva and

Justice Thurgood Marshall?

Other Republicans deploy both of their faces, Mitch McConnell on the

Senate floor -- 

(BEGIN VIDEO CLIP)

SEN. MITCH MCCONNELL (R-KY), MINORITY LEADER:  She‘s never had to

develop the judicial habit of saying “no” to an administration, and we

can‘t simply assume that she would.

(END VIDEO CLILP)

OLBERMANN:  Then Mitch McConnell in his office with Ms. Kagan within

ear shot.

(BEGIN VIDEO CLIP)

MCCONNELL:  I want to welcome Solicitor General Kagan to the Capitol. 

Congratulate her on her nomination.

(END VIDEO CLIP)

OLBERMANN:  Rig cementing fails pressure test.  Naturally, hours

later, commence drilling.  The Hill spill thrill moves to the House.

(BEGIN VIDEO CLIP)

REP. HENRY WAXMAN (D), CALIFORNIA:  If the largest oil and oil service

companies in the world had been more careful, 11 lives might have been

saved and our coastlines protected.

(END VIDEO CLIP)

OLBERMANN:  Not a year for incumbents.  West Virginia House Democrat

defeated in primary after 14 terms after his father had served seven terms. 

Big bad sheriff McCain promises to finish the dang fence.  And Specter

thanks his party—not his current party.

(BEGIN AUDIO CLIP)

SEN. ARLEN SPECTER (D), PENNSYLVANIA:  I think the Allegheny

Republican committee for endorsing me for the Democratic nomination.

(END AUDIO CLIP)

OLBERMANN:  “Tea Time”: “If I could issue hunting permits, I would

officially declare today opening day for liberals,” writes a California

congressional wannabe.  “The season would extend through November 2 and

have no limits on how many taken as we desperately need to thin the herd.” 

He pronounces his last name “gearing.”

And “Worsts”: more on the clown.

(BEGIN VIDEO CLIP)

BILL O‘REILLY, FOX NEWS:  Follow up segment tonight, most Americans

can‘t name the nine Supreme Court justices even though they are the most

powerful people in the country with the exception of President Obama.

(END VIDEO CLIP)

OLBERMANN:  He then proceeds to not be able to name the nine Supreme

Court justices.

All the news and commentary—now on COUNTDOWN.

(BEGIN VIDEO CLIP)

O‘REILLY:  I was really surprised.

(END VIDEO CLIP)

(MUSIC)

(END VIDEOTAPE)

OLBERMANN:  Good evening from New York.

The top Republican now on the Senate Judiciary Committee, his own

nomination as a federal district judge rejected when two Republicans on

that committee voted against him because of racist statements he had made

while U.S. attorney.  That same individual today denouncing the Supreme

Court nomination of Elena Kagan, solicitor general of the United States,

for coming out of a, quote, “tradition of activist judges” by which he

meant her clerkships for Justice Thurgood Marshall and a federal judge

named Abner Mikva.  Senator Jefferson Beauregard Sessions III, at least

waiting until after his meeting with Ms. Kagan to weigh in, thusly.

Not so his party‘s leadership—Senator McConnell of Kentucky, the

minority leader, taking to the floor of the Senate to question Ms. Kagan‘s

independence from the president.

(BEGIN VIDEO CLIP)

MCCONNELL:  It‘s my hope that the Obama administration doesn‘t think

the ideal Supreme Court nominee is someone who would rubber-stamp its

policies.  But this nomination does raise the question.

(END VIDEO CLIP)

OLBERMANN:  Compare that to what Mr. McConnell had said once he had

Ms. Kagan sitting at his side.

(BEGIN VIDEO CLIP)

MCCONNELL:  I want to welcome Solicitor General Kagan to the Capitol. 

Congratulate her on her nomination.  But I want to assure her and assure

the public that we intend to go through a thorough process.  It is,

however, not a rush to judgment.  And we‘ll have an opportunity to examine

the solicitor general‘s credentials.

(END VIDEO CLIP)

OLBERMANN:  McConnell‘s office also saying in an e-mail to reporters

this morning, reading, quote, “shot, a trailblazer throughout her career,

2010 White House on Elena Kagan.”  “Chaser—these are alcohol terms—a

trailblazer for women lawyers, 2005 White House on Harriet Miers.”

The implosion of the Miers nomination having begun on this comparable

day during the Bush administration when Ms. Miers began meeting with

senators on Capitol Hill and fellow Republicans begun to question whether

President Bush‘s nominee was actually qualified for the lifetime position.

Not so, Ms. Kagan‘s fellow Democrats.  After his meeting, Majority

Leader Reid is issuing a statement, saying he is confident that Ms. Kagan

is the right choice to succeed Justice Stevens on the court.

Chairman Leahy of the judiciary committee left his encounter, saying

he was reassured, adding that the former Harvard Law School dean could

become a welcome counterbalance to what he called the “activist

conservative majority” that currently dominates the court.  I guess Mr.

Leahy had not read the memo redefining only liberal judges as activist.

(BEGIN VIDEO CLIP)

SESSIONS:  She‘s been politically active throughout her life.  She‘s

identifying with the American liberal position.  She clerked for two

activist judges, and so, I guess I did ask her, did she feel like—did

she understand that, as a judge, she may be called upon to render rulings

that many of her fans and supporters over the years would be very

disappointed in.

My view is that her experience is very thin.  You do not have to be a

judge to go on the Supreme Court.  I acknowledge that.  But I think if

you‘re not a judge, I would like to have seen somebody in the harness of

the practice of law for a number of years.

(END VIDEO CLIP)

OLBERMANN:  Let‘s turn now to Tom Goldstein, a veteran Supreme Court

litigator and founder of SCOTUSblog.com.

Thank you for some of your time tonight, sir.

TOM GOLDSTEIN, SCOTUSBLOG.COM:  Good evening.

OLBERMANN:  How important are these meetings actually between the

Supreme Court nominee and the senators who are ultimately going to vote on

his or her nomination?

GOLDSTEIN:  Well, all the Democrats except Arlen Specter I think you

can count on as being locked in.  There‘s a handful, maybe 10 moderate

Republicans that this could actually influence whether or not they would

vote for her.

Beyond that, what it matters for is the tenor of the debate.  If—

even the more conservative Republican senators at least respect her, think

she‘s really smart, that she‘s being respectful, that she‘s not extremist. 

Then it‘s unlikely to turn into a thermonuclear war in the Senate which has

a thread of respect left in it.

OLBERMANN:  Well, then, give—Mr. Sessions that we‘re seeing there,

his statement about—implying I guess that Thurgood Marshall was an

activist judge.  Put that: “A,” in Supreme Court history, and “B,” in the

context of how these meetings with the senators are going for the solicitor

general.

GOLDSTEIN:  Well, I would say that with respect to Senator Sessions,

Senator McConnell, who are judicial conservatives, they—after careful

study—they realized she had been nominated by Barack Obama and decided

to vote against her.  They—you know, that‘s just their perspective.

Nonetheless, I do think that they‘re probably actually serious about

having a respectful process when she‘s going through the Senate; that they

don‘t intend to try and muck up the process, they do think it should move

along.  I think they‘re speaking more to their base than they are really a

genuine criticism of the nominee.

OLBERMANN:  By taking to the floor of the Senate though an hour and a

half before his meeting with her, did the minority leader give the

impression that he was prejudging Ms. Kagan?

GOLDSTEIN:  Well, I think he just has a perspective on Democratic

nominees.  I think that anybody that came out of that meeting with—

standing between the vice president and President Obama, he was going to

have pretty of the same take.  I don‘t think he‘s—finds it necessary to

learn a lot more about her than that she was appointed by a Democratic

president.

Now, remember, there were Democrats who had the same view with respect

to President Bush.  So, there—it is fair to remember that there are that

sort of six to 10 Republicans, people like Lindsey Graham, maybe Orrin

Hatch, the women senators from Maine.  There are some votes that are in

play here that will decide whether it‘s 65 or 70 that she gets.

OLBERMANN:  But to that point of experience, Sam Stein from the

“Huffington Post” compared the resumes of Kagan and William Rehnquist

before Rehnquist ascended to the court and he concluded that Rehnquist—

the quote is—“would be considered something of a novice by the standards

some are applying to Kagan.”

What does that do to the—and this is not the first time the word

“thin” has been used, but Senator Sessions used it today—what would they

what does that do to the Sessions claim that her experience is thin?

               

GOLDSTEIN:  The argument is thin, I suppose.  William Rehnquist was in

the Office of Legal Counsel, part of the Department of Justice.  He‘s a

conservative hero for goodness sakes, became an historic chief justice. 

Elena Kagan, dean of the Harvard Law School, solicitor general of the

United States, two of the highest positions in all of the law, to turn

around and then say, well, you know, I just don‘t know she‘s qualified for

the job comes across as a little silly.

OLBERMANN:  And let me get back to Thurgood Marshall.  Why invoke him

in those—in those negative terms even by extension and certainly he‘s

not—I don‘t know anybody who‘s on the history of the court who would

label him an activist judge.

GOLDSTEIN:  Well, so a couple things about that—it is really weird

to say what we want is someone who has a lot of experience litigating.  I

don‘t want you to be like Thurgood Marshall.  He‘s one of the great

litigators in American history.  Thurgood Marshall was part of the civil

rights revolution—something to which conservative Republicans really

think was activist by the Warren Court, even the Burger Court.  And they do

object to that kind of law.

But Thurgood Marshall is a historic figure.  Elena Kagan says that she

learned an awful lot from that position.  She was exposed to the Supreme

Court as a law clerk and having been there.

It‘s not the end of the world, but it‘s a—you know, it‘s a

legitimate part of the body of her qualifications.  Having clerked at the

Supreme Court, been the dean, been the solicitor general, having worked in

the White House both as a lawyer and in the policy shop, it‘s really hard

to make the case that this woman is unqualified.

OLBERMANN:  Tom Goldstein of SCOTUSBlog.com—great thanks for your

insight and thanks for your time tonight.

GOLDSTEIN:  Thanks so much for having me.

OLBERMANN:  Meanwhile, for more on the Republicans‘ attempt to paint

Ms. Kagan as President Obama‘s Harriet Miers, let‘s turn to Ezra Klein of

“The Washington Post” and “Newsweek.”

Ezra, good evening.

EZRA KLEIN, THE WASHINGTON POST:  Good evening.

OLBERMANN:  Well, the “Associated Press” admitted at the beginning of

the week that the B.P. oil spill is not President Obama‘s Katrina.  So,

instead, now we have Mr. McConnell sending out what is in effect a joke e-

mail to shut chaser business which is trying to transform Elena Kagan into

this president‘s Harriet Miers.  Is that working and does that not—if it

does work, doesn‘t it come as something with a sting in its tail?

KLEIN:  Well, I think it‘s working to keep a deputy press secretary in

the minority leader‘s office employed.

But it doesn‘t really work for them.  The people this works for very

well is Barack Obama, in fact.  Elena Kagan is no Harriet Miers.  I mean,

let‘s be clear here.  The issue with Harriet Miers is she was under-

qualified and got where she was by being a loyalist to a particular

politician, right, George W. Bush.

Elena Kagan, not so.  She‘s worked for two White Houses.  She‘s

clerked on the Supreme Court.  She‘s dean of Harvard Law.  It‘s very hard

to find somebody who has held more high level positions in different

contexts than she has.

But, of course, there are legitimate criticisms of Kagan, namely that

we actually don‘t know that much about her personal views on the law.  And

if Mitch McConnell makes this an issue on whether or not she‘s Harriet

Miers, she‘s going to get through it easy and we‘re not actually going to

ever have that conversation.

So, the only people this helps are arguably Mitch McConnell, and

definitely, Barack Obama and the White House.

OLBERMANN:  The Miers nomination failed not because—Democrats

pointed this out—but because Republicans wanted to sink it, not to

mention that the Bush White House hadn‘t really vetted her for the position

before nominating her.  But even based on the Kagan background, as we keep

saying, solicitor general, dean of Harvard law, nomination of position as

D.C. circuit court of appeals judge, clerked for Justice Marshall, clerked

for the Federal Judge Mikva, attended Harvard Law—is it really fair to

claim that she had a lack of experience comparable to Harriet Miers?

KLEIN:  No, not at all.  I mean, the claim itself is patently absurd. 

But again, this is the problem with that claim.  There is a real—I

think, a genuine issue that people should be seriously looking at here. 

Elena Kagan has held a number of positions where she has proven herself to

be a very, very adept political staffer and legal thinker.

But none of these positions where we have a real sense of what she

would do when faced with a decision like Citizens United, right?  So, she

argued the Citizens United for the government.  She tried to get the

Supreme Court to not make the decision it did.

But we don‘t know how she would have voted if she was on the other

side of that bench.  No one does.  There‘s a big argument going on among

electoral legal experts.

So, you do have that situation.  But instead, we‘re going to sit here

and talk about her really quite incredible credentials because the

Republicans went for the easy attack here rather than the slightly tougher

one.  They didn‘t go for the tougher one I think because Elena Kagan can

answer what her views are.  It‘s harder to answer simply a smear comparing

here to Harriet Miers.

OLBERMANN:  There was a defense today of the solicitor general against

right-wing attacks on with our own Monica Novotny.  This gentleman said, “I

don‘t think it serves the country well.”  The gentleman in question was Ken

Starr.  Does that tell us anything about this?

KLEIN:  I think it tells us a lot and I think Ken Starr is right.  You

have a situation happening here, whereas these nomination fights get more

and more polarized and more and more cheap, you begin to have more and more

of an incentive for both sides to bring up people who can‘t really be

attacked because you don‘t really know what they think.

John Roberts was somewhat this way.  He had a fairly thin record of

what he actually thought.  And so, when he got on to the court, he turned

out to be a surprise to many of the people who voted for him.  And on the

other side, I think, Elena Kagan, one of the virtues the White House saw in

her was that not—she didn‘t have much of a paper trail, so she‘d be

harder to attack in terms of what would really stick.  And that‘s no good

for the country at the end of the day when the two sides are ducking

Supreme Court fights.  And so, we don‘t really know what we‘re getting.

OLBERMANN:  Poor judgment on Mr. Sessions part to—by not using the

name but by one distance remove, evoke or invoke the name of Justice

Marshall as an activist judge?

KLEIN:  Justice Marshall, I think, is rightfully considered one of the

heroes of American legal history.  So, I think that‘s not a fight Senator

Sessions should really take on.

OLBERMANN:  Yes.  He might want to bring up John Marshall while he‘s

at it as well.

Ezra Klein of “The Washington Post”—those First Amendment guys,

they really changed the Constitution or activists who put in the Bill of

Rights.  Ezra Klein of “The Washington Post” and “Newsweek”—as always,

great thanks, Ezra.

KLEIN:  Thank you.

OLBERMANN:  By the way, if the Gulf is now officially not Obama‘s

Katrina, who‘s Katrina is it, anyway?  More testimony about the repair work

on the ocean floor, this time to the House.  And it sounds like one of the

stories about how the demolition company screwed up the address and knocked

down the wrong house only you have to add in the 200,000 gallons of oil

poisoning the Gulf every day.  Next.

(COMMERCIAL BREAK)

OLBERMANN:  And Toyota of oil companies with a new problem tonight,

400,000 gallons of stuff B.P. has pumped into the Gulf to try to clean up

the 200,000 gallons a day of oil it is still pumping into the Gulf.  The

cleanup stuff may be just as damaging to the environment.

A tea party candidate for the House from California writes on Facebook

that he‘d like to declare hunting season on liberals.  He spells his last

name G-O-E-H-R-I-N-G.  I wonder how you pronounce that.

He wasn‘t proving the point but he proved the point most Americans

can‘t name the nine Supreme Court justices.  He sure couldn‘t.

And Sister Sarah‘s big book of bendy straws?  Another Palin book?  But

all the table legs in my house are even.

Ahead on COUNTDOWN.

(COMMERCIAL BREAK)

OLBERMANN:  Twenty-fours ago, we told you that the three oil companies

involved in the Gulf spill had all testified the other companies were at

fault.

In our fourth story tonight: we now know they were all right.  As this

video taken yesterday shows oil continues to gush into the Gulf at the rate

of about 200,000 gallons a day, almost 4 million gallons all told so far.

B.P.‘s efforts to contain the spill, including last week‘s failed

placement of a 100-ton cap, are both untested at this depth and so far

unsuccessful, with environmental groups now questioning the environmental

impacts of B.P.‘s cleanup efforts, specifically a chemical used to disperse

the oil, nearly 400,000 gallons which B.P. has already dumped into the Gulf

now.

Yesterday, an executive from Halliburton described in what sounded

then like positive terms, testing done earlier on the day of the blast to

make sure Halliburton‘s cement seal would prevent gases from leaking into

the oil line.

(BEGIN VIDEO CLIP)

TIM PROBERT, HALLIBURTON CHIEF SAFETY OFFICER:  The next step included

the performance of the negative pressure test which tests the integrity of

the casing seal assembly and it‘s conducted by the drilling contractor at

the direction of the well owner and in accordance with MMS requirements. 

We understand that Halliburton was instructed to record drill pipe pressure

during this test.  After being advised by the drilling contract of a

negative test had been completed, Halliburton cementing personnel were

placed on standby.

(END VIDEO CLIP)

OLBERMANN:  Today, Congressman Henry Waxman revealed the truth about

that supposedly fail-safe blowout preventer and the cementing test that

Halliburton had described so positively yesterday.

(BEGIN VIDEO CLIP)

WAXMAN:  Halliburton, one of the world‘s largest oil service

companies, says it had secured the well through a procedure called

cementing, and that the well had passed a key pressure test.  But we now

know this is an incomplete account.  The well did pass positive pressure

tests, but there is evidence that it may not have passed crucial negative

pressure tests.  According to a senior B.P. official, significant pressure

discrepancies were observed in at least two of these tests which were

conducted just hours before the explosion.

Transocean, one of the world‘s largest operators of drilling rigs,

says it has no reason to believe that the rigs fail-safe device called a

blowout preventer was not fully operational.  But we‘ve learned from

Cameron, the manufacturer of the blowout preventer, that the device had a

leak in a crucial hydraulic system and a defectively configured ram.

(END VIDEO CLIP)

OLBERMANN:  Internal Transocean documents reveal the fail-safe blowout

preventer had 260 known scenarios for failure back in 2001.  And this one

had been modified so that one of the rams it uses to force the pipe shut

did not work—which no one knew for the first 24 hours of trying to make

it work and stop the spill, perhaps because the schematics they were

working from did not reflect those modifications.  Another ram did not work

because hydraulic fluid had leaked out through a loose fitting beforehand. 

The dead man trigger did not activate either, maybe because the battery was

dead.

How could a fail-safe have so many failures?  “Huffington Post” today

quoting an oil industry whistleblower who says he witnessed cheating on

blowout preventer testing, including some of B.P.‘s.  And on the same day

we learned all this, Senators John Kerry and Lieberman had introduced a

long-awaited climate change bill that gives coastal states veto power but

still encourages offshore drilling.

Let‘s turn now to David Corn, Washington bureau chief of “Mother

Jones” magazine an a columnist for politicsdaily.com.

David, good evening.

DAVID CORN, “MOTHER JONES” MAGAZINE:  Good evening, Keith.

OLBERMANN:  What do the revelations today tell us about the

distinction between, quote, “routine offshore drilling” and this deep water

casino gambling version?

CORN:  Well, big difference.  And I think a big point to keep in mind

is that there was another hearing today down in Kenner, Louisiana, before

the Coast Guard and the Minerals Management Service, who was supposed to

regulate these sort of rigs.  And it turns out that the regulations that

cover these rigs were written back in 1978, when you and I were both young

men.  And back in those days, too, they didn‘t have this type of deep water

offshore drilling.  Drilling was much closer in.

So, we‘ve had decades of oil companies moving further, further out,

deeper, deeper down, and now, the government saying, hey, you know this

equipment that works in a couple hundred feet of water and all the safety

precautions we‘ve come up with for that, it may not be applicable when we

get too far out and too far down.  And no one was thinking about that.

And the oil companies, of course, and Halliburton and the

manufacturers were not thinking, too, about how to make their rigs and

their products safe for such use.  It was just—let‘s find the oil, and,

you know, I think it was Markey or Congressman Markey who said they were

conducting just one big science experiment.

OLBERMANN:  Yes.

CORN:  And guess what?  It went bad.

OLBERMANN:  Well, and to that, the point, the executives testified

today that blowout preventers cannot handle every situation, especially if

they get clogged with debris from something like, you know, a blowout—

which then raises the question: is it fair to punish these companies for

promising their blowout preventers would prevent blowouts when, of course,

blowout preventers might not work properly if there‘s, you know, a blowout?

CORN:  So, maybe they should be called blowout maybe preventers.

OLBERMANN:  Yes.

CORN:  They may work.  I mean, again, the stuff had not been tested

appropriately.  Regulations had not been set for these things, and, you

know, we, collectively, the U.S. government and people out there who always

talk about, you know, and decry big government bureaucrats and, you know,

and burn out (ph) the regulations, you know, there was no culture in the

Department of Interior and the Mineral Management Service to, you know,

take into account what was going on and how to regulate this.

So, we just basically, as came out in all the hearings so far, this

was sort of self-regulation.  Industry got to self-certify that the things

they called blowout preventers would actually prevent blowouts even if they

didn‘t.

OLBERMANN:  It‘s a brand name and, in fact, the shorthand for it—

CORN:  Yes.

OLBERMANN:  -- for blowout preventers, the shorthand is just blow. 

Are the companies going to be, you know, speaking of deep, are in deep

sheep dip or will they end up doing just as well as Exxon has its Valdez?

CORN:  I think B.P. is still pretty deep in it.  You know, they‘ve

gone on record saying they‘re going to cover all the costs, not, you know,

that includes economic losses that result from this.  I mean, you know, we

still haven‘t stopped this oil from spilling out.

I was on a call with the White House and administration advisers, this

could take weeks, it could take months.  We don‘t know what the total bill

is going to be.  So, B.P. could still be on the hook at end of the day and

may not—you know, conceivably might not survive.

Halliburton seems to always survive.  I don‘t know why that is. 

Transocean, the company that built the rig, you know, these companies are a

little bit, I think, less in the public eye than B.P.  So, they‘re gone.

And, of course, there are other companies out there drilling away.  We

haven‘t, you know, closed down these rigs and they‘re all using, I assume,

similar equipment, and operating under similar set of principles and

regulations that didn‘t work in this case.  So, maybe there are other

companies that are worrying about becoming the next B.P.

OLBERMANN:  Well, big picture, though, obviously there have been

public opinion against offshore drilling before today‘s news.  Is offshore

drilling going to survive in this Kerry/Lieberman climate change bill?

CORN:  Well, we don‘t know if the bill will survive and what legs it

has.  But in the bill, as released, it had sort of a push me/pull you

attitude towards offshore drilling.  It has a moratorium until this current

spill is investigated, and it gives states that are—that may be affected

by spills the ability to veto, you know, offshore drilling.

               

But, at the same time, it gave states that want to go ahead with

offshore drilling a real powerful financial incentive.  They get a lot of

money if they do this.  So, there are both sides there, and it certainly

doesn‘t shut down offshore drilling in the long run.

OLBERMANN:  David Corn of “Mother Jones” magazine and

politicsdaily.com—thank you, again, David.

CORN:  Thanks, Keith.

OLBERMANN:  The silly quote was attributed to no one.  It came to the

author via an unnamed source.  So, naturally, “The New York Post” says the

quote was stated by the president of the United States.  “Worst Persons” is

ahead on COUNTDOWN.

(COMMERCIAL BREAK)

OLBERMANN:  The Tea Party in California reeling after one of its

congressional hopefuls posts on Facebook that it‘d be a good idea to have

hunting season on liberals with no limit.  His last name is spelled G-O-E-

H-R-I-N-G.  The Twitter report—good news, Twerst persons in the world

will be back tonight.  Bad news, I was only on Twitter for like three

minutes today.  So there‘s no Tweet of the day. 

Two birthdays to note, to two of the great influences of my life.  To

the late George Carlin, would have been 73 today, and to my equally great

high school English teacher, Arthur Nadling, who is 39.  Let‘s play

Oddball.

We begin on the set of “Live With Regis and Kelly.”  This morning,

Beth Ostrosky Stern (ph), wife of Howard Stern, was on hand to share summer

safety tips for your dog.  She was joined by her bulldog Bianca, Lady Bug,

the Chihuahua, and Scooter.  Scooter was recently rescued from the floods

in Tennessee.  So you‘ll have to excuse Scooter.  Those fake bushes look

real to old Scooter.  The animal care segment continued, as did the dog. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  Make sure you follow the instructions on the

back of the package and then—so—

(END VIDEO CLIP)

OLBERMANN:  Howard Stern‘s wife was there?  Baba-pooey.  Baba-pooey. 

Scooter is awaiting adoption at the North Shore Animal League.  If you get

hem today, you don‘t have to walk him until tomorrow. 

To an actual garden at 10 Downing Street in London, where new Prime

Minister David Cameron and deputy Prime Minister Nick Clegg today, the odd

couple, held a joint press conference to kick the tires on their newly

formed coalition government that could last all the way to the end of

summer.  A reporter asks the new PM how he will reconcile some of the

cheeky campaign language he previously aimed at his new partner. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Prime Minister, do you now regret when once asked

what your favorite joke was, you replied Nick Clegg?  And deputy prime

minister, what do you think of that? 

DAVID CAMERON, PRIME MINISTER OF GREAT BRITAIN:  We‘re all going—

I‘m afraid I did.  We‘re all—come back!

(END VIDEO CLIP)

OLBERMANN:  I told you it wouldn‘t last. 

Finally, to a children‘s playground in St. Johns, New Brunswick,

Canada, where this moose is a little woozy after having ridden the merry

go-round.  Despite a mad dash past the news crew, police were able to

confine this female inside the park.  And once animal control got on to the

scene, they gave Mrs. Moosey a free ride on the tranq dart express.  She

was then carted back to her tree swing in the woods. 

Desperate incumbents; Arlen Specter can‘t remember which party he

switched to and which he switched from.  Speaking of not remembering, Bill-

O tries to name the Supreme Court justices and includes in his list one who

is already retired.  And the age old hunting argument in California, duck

season, rabbit season, duck season, rabbit season.  No, says the Tea Party

congressional candidate.  Liberal season. 

(COMMERCIAL BREAK)

OLBERMANN:  The latest hard evidence that being an incumbent can be a

hard sell, in our third story tonight, some of it ridiculous, offensive, as

when Senator John McCain, desperate to survive his own primary challenge,

puts out an ad in which he says “complete the dang fence.”  But first, the

minor political earthquake from a Democratic congressman from the first

district of West Virginia, Alan Mollohan, defeated in the Democratic

primary yesterday by state Senator Mike Olviero (ph).  Congressman Mollohan

has held this seat for 28 years.  His father had held it before him for 14

years. 

In Pennsylvania, Republican turned Democrat Senator Arlen Specter not

only having a hard time convincing rank and file Democrats that he is one

of them, he‘s having a hard time keeping that part of the story straight. 

Yesterday, speaking to the Allegheny County Democrats in Pittsburgh,

Specter twice referred to them as Republicans.  Specter‘s Democratic

primary opponent, Congressman Joe Sestak, evidently packaged the mistakes

into a tidy Youtube video. 

(BEGIN VIDEO CLIP)

SEN. ARLEN SPECTER (D), PENNSYLVANIA:  I thank the Allegheny

Republican Committee for endorsing me for the Democratic nomination.  Great

pleasure to be endorsed by the Allegheny County Republicans.  And together

we‘ll win for a victory for a better state and a better nation. 

(END VIDEO CLIP)

OLBERMANN:  Also known as the magic single-party theory.  In some

recent polls, Sestak is tied with Specter or ahead of him.  The primary

election for that race is next Tuesday.  By specter‘s switcheroo is nothing

compared to Senator John McCain‘s latest flip-flop. 

First, a reminder, in a presidential primary debate, Senator McCain

had this to say about immigration. 

(BEGIN VIDEO CLIP)

SEN. JOHN MCCAIN ®, ARIZONA:  It‘s still the land of opportunity and

it is a beacon of hope and liberty.  And as Ronald Reagan said, a shining

city on the hill.  And we‘re not going to erect barriers and fences. 

(END VIDEO CLIP)

OLBERMANN:  In case you did not catch that last part, Mr. McCain said

we‘re not going to erect barriers and fences.  But now, in his senatorial

primary fight McCain has released this where he walks along the border in

the southern Arizona town of Nogales telling the sheriff about his ten-

point border security plan and the ad ends with this. 

(BEGIN VIDEO CLIP)

MCCAIN:  And complete the dang fence. 

UNIDENTIFIED MALE:  It will work this time.  Senator, you‘re one of

us. 

(END VIDEO CLIP)

OLBERMANN:  One of us.  And we‘re not going to erect barriers and

fences.  But us Think Progress notes, McCain either also got his sheriffs

confused, or didn‘t care about total accuracy.  That sheriff walking along

with McCain there, he is from Pinal County, 115 miles north of the border

in central Arizona.  In fact, the assistant police chief in Nogales, a man

not shown in McCain‘s ad, has said that the border town has not witnessed

spill-over violence from Mexico. 

On that note, let‘s turn to the publisher of Daily Kos, Markos

Moulitsas, also the author of “Taking on the System.”  Markos, good

evening. 

MARKOS MOULITSAS, DAILY KOS FOUNDER:  Good evening, Keith. 

OLBERMANN:  Senator McCain, is he down to this stage of say anything

to any sheriff, even if it was the sheriff of Nottingham who happened to be

there in front of the camera with him? 

MOULITSAS:  Yes, McCain‘s getting a little bit worried.  He still has

a fairly comfortable double-digit lead in most of the polling in the race. 

But he‘s under 50 percent.  The 50 percent mark is quite significant.  I

went back and looked at Senate candidates in 2006 and 2008.  Of those who

were polling over 50 percent throughout the campaign, not a single one of

those guys lost.  Those who were polling under 50 percent, half of them

lost. 

So McCain has real reason to worry.  And, of course, now he‘ll try to

pander himself into a primary victory. 

OLBERMANN:  Clearly in Pennsylvania the issue is not pandering. 

Senator Specter has the support of Governor Rendell, much of the Democratic

Party establishment, the president.  But he may be on the verge of getting

kind of a big message from Democratic voters, and it‘s not, hey, we‘re

Democrats, we‘re not the Republicans.  It‘s something bigger than that,

right? 

MOULITSAS:  I think it‘s even bigger than that.  I think voters in

general like to make up their own minds about the top of the ticket races. 

So endorsements in such things as presidential races, Senate races, even

some House races don‘t really mean as much as they would for, say, a city

council member or a county commissioner, because people don‘t know who

those county commissioners may be.  They know who Ed Rendell is.  They know

who Joe Sestak is.  They know who Arlen Specter is.  They are going to make

up their own mind. 

We‘re seeing the same dynamic in Arkansas as well, as the Obama and

establishment-backed Blanche Lincoln has seen her lead decrease against

Bill Halter, who is running an insurgent campaign against her. 

OLBERMANN:  What happened with the incumbent Democrat in the House in

West Virginia? 

MOULITSAS:  Well, that incumbent was one of most corrupt not just

Democrats—one of the most corrupt congressmen in the entire Congress. 

Given the state of Congress, that‘s actually saying quite a bit.  

OLBERMANN:  Seriously. 

MOULITSAS:  That guy funneled almost 250 million dollars to five

charities that were run by his friends and family.  Those charities

funneled hundreds of thousands of dollars back to him.  It was disgusting. 

Here‘s the thing—this is what‘s different, is that his corruption

has been known for at least four years.  This is not a new revelation.  But

in this environment, any incumbent is in trouble.  And if have you any kind

of baggage, like Mollohan did, then you have real reason to worry. 

OLBERMANN:  If there is an anti-incumbency strain at the primary stage

to those with baggage and otherwise, to what degree does the dynamic hobble

Democratic incumbents as they move into the general elections in November? 

Is there any way to judge that yet?

MOULITSAS:  It‘s going to hobble all incumbents of both parties moving

into November.  Voters are angry at the way Washington, D.C. has not

worked.  And they have every reason to be angry on both sides of the aisle. 

Right now, voters are hopping mad.  They‘re going to take it out on

incumbents.  And right now, obviously, that hurts Democrats more because

there are more of us in both the House and the Senate.  But it‘s not a

partisan problem that‘s affecting the Democrats.  It‘s actually a problem

that‘s affecting anybody that can be related closely to the establishment. 

OLBERMANN:  Markos Moulitsas of Daily Kos, as always, great thanks for

your time, sir. 

MOULITSAS:  Thank you very much. 

OLBERMANN:  And now, because you asked for it—you didn‘t ask for

it?  Well, she‘s writing another book anyway.  Not writing exactly, sort of

borrowing. 

Bill Orly points out few Americans could name all the Supreme Court

justices and then proves it by naming one who is already retired. 

And when Rachel joins you at the top of the hour, release the Kagan

memos.  What the ones from the nominee‘s stint in the Clinton White House

may tell about her. 

(COMMERCIAL BREAK)

OLBERMANN:  Quick, Bill O‘Reilly, name nine Supreme Court justices. 

All right, just four.  No, four current ones.  All right, try again, get

back to me. 

First, no, that‘s not your water coming to a boil.  It is our nightly

check up on the something for nothing crowd.  It‘s Tea Time.  G-O-E-H-R-I-

N-G, how would you pronounce that?  The Tea Party guy for next month‘s

primary in the California 11th pronounces it Goehring, which was pretty

smart of him, until this week, anyway, when it stopped mattering. 

Brad Goehring posted something on his Facebook page.  He scrubbed it

since, but the joys of the cached page.  “If I could issue hunting permits,

I would officially declare today opening day for liberals.  The season

would extend through November 2, and have no limits on how many taken, as

we desperately need to thin the herd.” 

The local station in that district, the local Fox TV station, went out

looking for people who did not think that was an atrocity or something. 

They found instead a man wearing a t-shirt with President Obama‘s face on

it and the face crossed out with one of those red “no” symbols, with the

slanty thing.  He said what Goehring wrote was, quote, “pretty insane.” 

A spokesman for Brad Goehring said the candidate was just using a

metaphor.  The Tea Party person said it was a joke.  But guess what?  When

the guy in the No-Obama t-shirt says it‘s pretty insane, it‘s not a

metaphor, it‘s not a joke, it‘s a G-O-E-H-R-I-N-g. 

(COMMERCIAL BREAK)

OLBERMANN:  A new book from Sister Sarah.  Well, naturally, since they

were able to give away so many copies of her first one. 

Sell?  Oh, sorry, sell. 

That‘s next, but first tonight‘s worst persons in the world.

The bronze to Jennifer Thomas, cited by the Scottsdale, Arizona,

police department for allegedly reacting poorly when she asked a hotel

valet to get her a cab and he called her a yellow cab, but she wanted a

livery car, you know, a black sedan.  Ms. Thomas allegedly hit the valet in

the head with her high-heeled shoe.  She‘s described by police as a, quote,

upscale companion escort. And the facility which this all occurred is

called the Hotel Valley Ho.  No, it isn‘t.  No, it isn‘t.  Well—wait a

minute.  Yes, it is.  The Hotel Valley Ho.  Scottsdale, Arizona.  Hotel

Valley Ho, hello. 

Runner-up, Rupert Murdoch.  His “New York Post” pulled off a low-low,

quoting a book by a Zeb Chafets (ph), called “Rush Limbaugh, An Army of

One.”  Evidently the book is about the Hindenberg.  “When President Obama

was asked if he would play a round of golf with his talk radio nemesis,

Rush Limbaugh, the response, relayed by a top Democrat, was, ‘Limbaugh can

play with himself.‘” 

Only later on does the post reveal, quote, “Chafets writes that he

reached out to Obama advisor David Axelrod, quote, ‘whom I know slightly,‘

but Axelrod didn‘t return calls.  Then Chafets spoke to a very senior

Democratic activist with whom I‘m friendly, who said he would convey the

message.  A day or two later, the adviser responded ‘Limbaugh can play with

himself.‘  Chafets wouldn‘t name the aide or say whether the quote was

directly from Obama.” 

So the author got the quote from an activist.  Doesn‘t know who it

came from.  Naturally, the “Post” attributes it to the president.  The

“Post” and Mr. Murdoch have as their sole purpose electing Republicans,

period.  Anything else, including profit, is incidental.  Shocking, I know. 

But our winner, in one of the all time great definitions of the

Shakespearean term, hoist on his own petard, Bill O‘Reilly.  Take it away,

Bill. 

(BEGIN VIDEO CLIP)

BILL O‘ REILLY, FOX NEWS ANCHOR:  Time for our follow up segment

tonight.  Most Americans can‘t name the nine Supreme Court justices, even

though they are the most powerful people in the country, with the exception

of President Obama. 

Here‘s my problem: I think the speculation about Elena Kagan is

foolish.  And I don‘t want to waste the audience‘s time.  We don‘t know how

this woman is going to behave on the Supreme Court.  We do know she‘ll be

confirmed, unless there is some big skeleton in her closet we don‘t know

about. 

But she will join Sonya Sotomayor.  She will join Ruth Bader Ginsburg

and David Souter as four hardcore liberals. 

UNIDENTIFIED FEMALE:  Breyer. 

O‘REILLY:  Breyer.  I‘m sorry, OK.  As four hardcore liberals. 

Correct?

(END VIDEO CLIP)

OLBERMANN:  First off, he sounds drunk.  Can you name the nine Supreme

Court justices?  Secondly, there are the four liberals on the court, Sonya

Sotomayor, Ruth Bader Meinhoff, Bruce Souter, Poland, Czechoslovakia,

Holland, Venezuela, Africa, Hanging Gardens of Babylon, Switzerland.

OK, here‘s my problem—Bill O‘Reilly, justice league—there I got

one, justice league—today‘s worst person in the world.

(COMMERCIAL BREAK)

OLBERMANN:  Perhaps she was inspired by her own disastrous one-time

Fixed News TV guest hosting gig, because it seems like Sarah Palin is

following a pattern.  Take somebody else‘s work, then repackage it as your

own.  Our number one story, a second helping of Sister Sarah‘s famous word

salad “Going Rogue,” the sequel.  But instead of her stories about snow

machining and moose stewing, the book will feature other people‘s stories

and speeches and sermons and letters. 

“Sarah Palin‘s America by Heart, Reflections on Family, Faith and

Flag,” to be released November 23rd, right after the midterms, just in time

for the holiday shopping season.  A press release from the books publisher,

the Rupert Murdoch owned Harper Collins, giving the details; “it will be

written in her own refreshingly candid voice, and feature reflections from

classic and contemporary readings that have moved her.” 

The book‘s inspiration stemming from, you guessed it, Palin‘s strong

faith in the importance of family, faith and patriotism.  And also by some

of the people met last year while she was promoting her first book. 

Hundreds of folks paying for “Going Rogue,” and waiting in line for

hours, truly inspirational.

As for the actual content, it will be drawn from, to quote Sister

Sarah‘s self-proclaimed newspapers habits, “a vast variety of sources,

including the nation‘s founding documents, to great speeches, sermons,

letters, literature, and poetry, biography, and even some her favorite

songs and movies.” 

“America By Heart” priced at 25.99 until, that is News Max buys up

hundreds of copies and practically gives them away.  Although perhaps a

more appropriate title for the book would be “America by Hand.”

Time now to call in MSNBC political analyst and author of “Renegade,

The Making of a President,” a different kind of book entirely, Richard

Wolffe.  Richard, good evening. 

RICHARD WOLFFE, AUTHOR, “RENEGADE”:  Good evening, Keith. 

OLBERMANN:  It occurs to me, listening to all this, this sounds like a

giant, like, iTunes play list that she‘s going to publish.  Is this what

this sounds like to you? 

WOLFFE:  You know, what it actually sounds to me like is, you know,

she did quote from her resignation speech from her parent‘s fridge magnets. 

It actually sounds like this has been—you know, that poetry, write your

own poetry by fridge magnets, they only use the F words, the faith, family

and flag.  I‘m told the other F-words she had on her list were Facebook,

fruit flies, fish and fridge magnets.  That‘s the next book.

OLBERMANN:  I‘m sorry.  You should have written those on your hand. 

The timing of this couldn‘t be better, it looks like, at least from this

perspective, from the money making point of view, from the political buzz

creating point of view.  It‘s sufficiently after the midterms.  Assuming

there will be a book tour, does it serve as a de facto presidential

candidate listening to her that‘s underwritten by Harper Collins?  Or does

the timing lead you to think that she would, in fact, not have White House

ambitions? 

WOLFFE:  Of course, the beauty of this is it could go both ways.  She

has become a new paradigm.  You used to have to raise money to run for

president.  Now she can run for president to raise money.  So she can—

it‘s not too late.  She can make lots of money, flirt with the presidency

and be relevant.  Most of all, this is someone who gave up her job halfway

through at a time when there were going to be all of these people who were

seriously running for president, who may well have completed a term in

office, at least one or maybe two—they will then be in the national

spotlight and this is her way of saying, hey, me too. 

OLBERMANN:  A spokesperson for the publisher, Harper Collins, says

that she‘s going to have a collaborator.  The last time she had a

collaborator, that was a Christian Evangelical writer.  Should we expecting

something different this time around in the way of a collaborator? 

WOLFFE:  I realize that many of Sarah Palin‘s fans don‘t think I know

much about books or writing, and I actually don‘t know much about geometry,

either.  But last time I checked, an anthology doesn‘t require that much

writing.  And the connective tissue here is a fairly limited thing to

write, maybe like her Facebook entries.  You would think that she could put

this together herself. 

If she has a collaborator, it makes me wonder if she‘s even Tweeting

on her own. 

OLBERMANN:  The variety—I guess have you to credit her for the

variety here.  The nation‘s founding documents, conceivably the Netflix

list, as I suggested before.  It‘s a published iPhone best hits.  Just for

the record on the movies that she might be quoting, her favorite movies,

when she talked to Katie Couric about this, “Hoosiers” and “Rudy,” and we

don‘t mean Giuliani.  This is a pretty eclectic thing to choose from.  Is

it going to sound like one of those jack radio station, where they just

sort of randomly push the buttons and play whatever comes up next? 

WOLFFE:  I‘m going to go out on a limb here.  I‘m going to say that I

think she probably draws inspiration from the Star Spangled Banner.  That

would not be, of course, the Jimi Hendrix version.  Maybe the movies of Mel

Gibson.  I could think of maybe “The Passion of Christ.”  “Apocalypto,” of

course, is the name of her national security strategy.  So that‘s off the

table.

Movie-wise, “Hoosiers” is an interesting one.  Can you imagine Gene

Hackman as a coach saying to her, as she is going to quit as governor,

yeah, that‘s what I call a winner?  I don‘t think so. 

OLBERMANN:  Very nice.  Richard Wolffe of MSNBC, author of “Renegade,”

as always great thanks. 

WOLFFE:  Thank you, Keith. 

OLBERMANN:  That‘s COUNTDOWN for this 2,568th day since the previous

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

night and good luck. 

And now, let me just do this one last time.  Release the Kagan memos. 

Ladies and gentlemen, to review the nominee‘s White House documents is

Rachel Maddow.  Good evening, Rachel. 

RACHEL MADDOW, MSNBC ANCHOR:  The totally inscrutable, impenetrable

White House memos that are nevertheless very exciting. 

OLBERMANN:  Good.  I‘m looking forward to them.  Proceed. 

MADDOW:  Thank you, Keith.  And thanks to you at home for staying with

us for the next hour. 

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

BE UPDATED.

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