updated 5/14/2010 9:49:36 AM ET 2010-05-14T13:49:36

Guest: Ed Markey, Brent Coon, Sam Stein, Rep. Chaka Fattah, A.B. Stoddard, Jack Rice, Jonathan Turley, Paul Helmke


LAWRENCE O‘DONNELL, HOST:  Good evening, and welcome to THE ED SHOW.

I‘m Lawrence O‘Donnell, in for Ed Schultz. 

Here are the stories we‘ll be hitting tonight. 

BP‘s CEO says his company could have had a better emergency plan.  He

admits there were missteps in their response.  Congressman Ed Markey tells

us what‘s been uncovered so far in the investigation. 

I have a suggestion for liberals concerned about Elena Kagan.  Trust

President Obama‘s judgment on this one. 

And Arlen Specter and Joe Sestak are running neck and neck in the

Pennsylvania primary, but which one can beat Republican Pat Toomey in

November?  A new poll could sway undecided Democrats. 

But we start with the oil disaster in the gulf.  BP CEO Tony Hayward

admits his company could have done better.  He concedes there were


Eleven people are dead.  There are over four million gallons of oil

floating in the Gulf of Mexico.  “Missteps” is not the word for that. 

How about negligence?  How about criminal negligence?  Or maybe


Just how reckless was BP and its subcontractors? 

It now appears that BP and Transocean ignored many opportunities to

avoid this disaster.  That was the focus of an explosive investigative

House hearing yesterday. 


REP. HENRY WAXMAN (D), CALIFORNIA:  This catastrophe appears to have

been caused by a calamitous series of equipment and operational failures. 

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. 


O‘DONNELL:  What specific equipment and operational failures did

investigators find?  There were four known problems with the blowout

preventer, which was supposed to be the fail-safe to cut off the flow of

oil and gas.  Part of the prevention process is literally to cut the cord

with the drillpipe, but the shears were only strong enough to cut through

the pipe, not the joints that connect to the pieces of the pipe together. 


REP. BART STUPAK (D), MICHIGAN:  The threaded joints between the

sections of drillpipe make up about 10 percent of the length of pipe.  If

the shear rams cannot cut through the joints, that would mean the so-called

fail-safe device would succeed in cutting the drillpipe only 90 percent of

the time. 


O‘DONNELL:  But even if the shears didn‘t work, there was a backup

plan, a fail-safe to the fail-safe, a so-called dead man‘s switch.  The

dead man‘s switch also failed.  Why?  Because someone didn‘t change the


So, to recap, the growing list of problems with the Deepwater Horizon

oil rig owned by BP, dead battery, bad wiring, leak in the so-called

blowout preventer.  But perhaps the most damning evidence to come out was

this—when Transocean bought that blowout preventer, which was supposed

to prevent the catastrophic spill that we‘ve seen, they were told, they

knew that there were 260 possible risks for failure. 


STUPAK:  How can a device that has 260 failure modes be considered



O‘DONNELL:  That is the question of the day.  If only someone at

Transocean had dared to ask that question in 2001, when they knowingly

bought faulty safety equipment. 

Joining us now to tell us—no, we‘re going to do something else

before we get to our guests. 

Tell me what you think in our telephone survey.  The number to dial is

877-ED-MSNBC.  The question tonight is: Do you believe BP knew disaster was

coming?  Press “1” for yes.  Press “2” for no.  I‘ll bring you the results

later in the show. 

And now joining us is Massachusetts Congressman Ed Markey, chairman of

the House Select Committee on Energy Independence and Global Warming. 

Congressman Markey, what have we learned so far in this investigation,

and what legal terms should we be applying to what we‘ve discovered? 


AND GLOBAL WARMING:  Well, what we have learned is that BP certified,

promised that they had the capability to deal with any accident, although

they did believe that no accident would ever occur.  In fact, last summer

they certified that they would be able to handle an accident in the Gulf of

Mexico that was 50 times larger.  That is, 250,000 barrels a day, as

opposed to 5,000 barrels a day as an accident. 

Well, it‘s very clear that, one, they weren‘t ready to deal with an

accident that‘s one-fiftieth the size of the one they certified that they

could.  And two, that they had promised the federal government—and I

think in a way perhaps even deluded themselves by short-changing all of the

investment in the safety procedures that should have been put in place—

and by engaging in such boosterism, their boosterism led to complacency,

and the complacency led to a disaster.  And that disaster is something that

right now is still out of control, without any real guarantee that BP has a

plan to be able to stop it. 

O‘DONNELL:  Now, we‘re showing pictures of the oil floating on the

Gulf.  That‘s the coverage that we‘re seeing these days.  We don‘t have the

11 bodies lined up that were lost when this thing exploded. 

What do we have in this case, Congressman Markey?  Is the negligence

that we‘re finding in this case something that rises to the level of

possible manslaughter charges?  How far does this go? 

MARKEY:  I believe that we are going to be engaging in a CSI Gulf of

Mexico for months, identifying all of the evidence, finding out who knew

what when.  Right now we have at the witness table finger-pointing coming

from each direction of each one of those four companies, all trying to shed

any type of responsibility for this catastrophe.  But at the end of the

day, lives were lost, livelihoods have been destroyed.  And there is going

to have to be a day of reckoning. 

Your father was one of the great trial lawyers in Massachusetts

history.  So, whether or not this is manslaughter or criminal negligence,

or some other charge, it will be, without question, something that is going

to call for the strongest possible penalties that are imposed, although at

this point the evidence still is not complete so that we can know who

exactly to blame for this catastrophe as the ultimate responsible party. 

But it looks like many of these companies should have known or should

have had enough of a warning that they raised the red flag that everyone

stepped back and said this could be a disaster. 

O‘DONNELL:  Ed, as you know, I don‘t have my father to ask these legal

questions of anymore, so I apologize for making you the lawyer of the day

here.  But going forward, as a legislator, where are we going on offshore

oil drilling?  Where are we going on regulation, safety regulation?  What

do we have to do from here? 

MARKEY:  I think that we are going to need to have the same kind of

panel like the Kemeney Commission that President Carter impaneled after

Three Mile Island to come forward with a series of recommendations that

have to be implemented as the precondition to any new leases being granted

off the coastlines of our country.  And anyone that thinks that we‘re just

going to move forward with business as usual is just missing the historic

nature of what has just happened. 

Obviously, there was not proper safety precautions put in place. 

Obviously, the government and the private sector let down the American

people and especially those people in the Gulf of Mexico. 

People expected the Apollo project.  Instead, they‘re getting “Project

Runway” in terms of nylons and hair that is going to be used to clean up

that spill down there. 

This is all unacceptable.  We need a moratorium.  Put the safety

precautions in place.  Then begin to talk about leasing once again. 

O‘DONNELL:  Massachusetts Congressman Ed Markey.

Thank you very much for joining us on this important subject tonight. 

MARKEY:  Thank you. 

O‘DONNELL:  Now, experts say the Justice Department is likely to file

criminal charges in this oil disaster that could result in financial

penalties way beyond the civil liability cap.  One of the major factors in

deciding whether to file charges is past behavior. 

According to a McClatchy report today, federal “Prosecutors also look

at the history of violations, which could also persuade them to file

charges.  BP, for example, has already agreed to pay millions in criminal

penalties for several major incidents, including for a fatal explosion at a

Texas refinery in March 2005.”

Attorney Brent Coon successfully sued BP after that 2005 explosion in

Texas, and he is also involved in current lawsuits against the company. 

Brent Coon, what do you see here legally?  What are the right words

here?  They‘re saying that they made some mistakes, that just a few little

screw-ups here and there. 

Do we have criminal liability?  Do we have civil negligence, criminal

negligence?  What is this?  Guide us through this. 

BRENT COON, SUED BP IN 2005 AFTER EXPLOSION:  Well, you know, we don‘t

know yet because we obviously don‘t have all the facts.  But from what

we‘ve heard in the Senate and the House meetings today, and what we heard

in the press, what we know from our own investigations, we know that there

was certainly civil negligence. 

In the Texas City case that we had previously, we also know that there

was criminal negligence.  In fact, we‘ve worked directly with the

Department of Justice to help prosecute BP criminally in that case. 

O‘DONNELL:  Now, how long do you think it‘s going to take for this to

play out?  For example, the word that we get today that there‘s a possible

criminal investigation going on, given the scope of evidence, the

difficulty of obtaining it, what kind of timetable do you see here for the

Justice Department? 

COON:  Well, the Department of Justice works relatively slow, frankly. 

It took about two years and a lot of prodding from us as counsel in that

case to effectuate a criminal plea in the underlying case.  And that also

involved BP and their history with the propane price fixing, and it also

involved criminal charges that were pled out as a package on the Alaskan

pipeline.  So, BP has a long history of having to deal with the Department

of Justice in a criminal setting. 

I think what you said earlier, and what the congressman said, which is

an important word, which is criminal negligence being manslaughter.  What

we‘ve seen in these plea agreements to date has always been a fine. 

These guys keep making horrible blunders.  They cut costs, cut

budgets, and then we have these disasters on our hands over and over and

over again with BP.  And every time they just have to pay a fine. 

And at some point there needs to be corporate accountability where

people have to actually face—I say people—the executives that make

these decisions, that they have to face a jury on an indictment. 

O‘DONNELL:  Well, I raised that term “manslaughter,” because no matter

how much tape they run here of the oil floating over the surface of the

Gulf, there‘s 11 people who loved their lives instantaneously in this.  And

that‘s where this story I think begins. 

And those 11 cases need to be dealt with legally.  And that‘s why I

raise the question of manslaughter. 

Could you accumulate enough evidence of negligence that it rises to

what could be interpreted as a willfully reckless level that would get you

to a manslaughter case here? 

MARKEY:  Certainly from what we‘ve seen to date, it already invites

enough to take it to a grand jury.  I think at this point a grand jury

should be convened, and then they can prepare the documents as they arise,

give those to the grand jury over time, let them make that decision. 

But from what we‘ve seen, it at least calls for the grand jury at this

point to at least start looking at the information as it develops.  And

from what I‘ve seen so far, I think it‘s already there.

Now, again, what we saw in the BP case, all of the same things BP did

in this case, they did many times over in the Texas City explosion, and

yet, even though we and the victims asked over and over to see some kind of

criminal indictment against individuals in executive positions that were

the ones that made these decisions that resulted in all these lost lives—

we lost 15 people in that refinery, just like we lost 11 rig workers.  And

again, there just was no pressure on these individuals. 

If you don‘t have pressure on these individuals, they‘re not going to

change their ways.  If they can always buy their way out by just doing a

fine, that‘s what they‘ll do.  It‘s like drunk drivers.  If drunk drivers

keep driving drunk, and all they have to do is pay a fine, every time they

get caught it doesn‘t change their ways. 

O‘DONNELL:  Brent Coon, thanks for your legal insight on this case


MARKEY:  Yes, sir. 

O‘DONNELL:  Coming up, President Obama on the jobs offensive in

Buffalo today.  He slams Republican naysayers for standing on the sidelines

and predicting failure. 

More on that, next. 

Plus, more Americans support Arizona‘s national immigration law. 

And the birthers can stop bothering the people in Hawaii. 

You‘re watching THE ED SHOW on MSNBC.




free-fall was job number one when I took office.  Despite all the naysayers

who were predicting failure a year ago, our economy‘s growing again. 

I ran for president to keep the American dream alive in our time, for

our kids and our grandkids and the next generation.  So we met our

responsibilities.  We did what the moment required. 


O‘DONNELL:  President Obama was on offense in Buffalo this morning,

touting his administration‘s success on the job creation. 

And he also took a shot at Republicans. 


OBAMA:  Frankly, I had one side of the aisle just sit on the sidelines

as the crisis unfolded.  And if we had—if we had taken that position,

just thinking about what was good for my politics, millions more Americans

would have lost their jobs and their businesses and their homes. 


O‘DONNELL:  But the president had his work cut out for him convincing

locals that the economy is actually turning around.  A group of unemployed

Buffalo residents put up a billboard in advance of Obama‘s arrival.  It

reads simply, “Dear Mr. President, I need a freakin job.  Period.”

Obama addressed the concerns of those who are still feeling the

effects of the recession. 


OBAMA:  And if you‘re still looking for a job out there, it‘s still a

recession.  If you can‘t pay your bills or your mortgage, it‘s still a

recession.  No matter what the economists say, it‘s not a real recovery

until people feel it in their own lives, until Americans who want work can

find it, and until families can afford to pay their bills and send their

kids to college. 

So that‘s what we‘re working for.  That‘s our goal. 


O‘DONNELL:  For more, let‘s bring in Sam Stein, political reporter for

“The Huffington Post.” 

Sam, first of all, the question at the White House today has to be,

whose idea was Buffalo?  I mean, tough crowd, Buffalo. 



O‘DONNELL:  Very tough crowd.  You know, they‘re going to put up signs

that are going to be very uncomfortable for the president. 

STEIN:  They‘re a sporty town.  I think they went for the wings. 

That‘s where the president got—did a stop, had some buffalo wings. 

Probably, that was why they did it. 

O‘DONNELL:  But upstate New York is always tough on jobs issues

because it‘s not an easy place—


STEIN:  And it‘s a place where unemployment is really high.  And, you

know, this is probably the toughest task that the president has. 

I remember being in a briefing with Stan Greenberg, the prominent

Democratic pollster, who talked about what Bill Clinton had to do in a

similar circumstance.  And he said the toughest task for a president is

talking about an economy improving, because a lot of people don‘t think

it‘s improving, like Obama said, because they look at their wallets. 

Just one stat for you.  Forty percent of everyone unemployed right now

has been unemployed for longer than six months.  That‘s 6.7 million people,

the largest amount ever in history. 

That‘s a huge a people who‘ve just been out there waiting or looking

for work.  And for the president to get up and say listen, the time is

coming, we‘re improving, it‘s tough to sell it to them because they‘ve been

out of work for so long.  So it really is a tough task.  He‘s trying to get

it through the needle, but we‘ll see. 

O‘DONNELL:  And we‘ve got an NBC News/”Wall Street Journal” poll on

the government‘s highest priority.  And the poll comes up with 35 percent

saying that jobs and the economy are the highest priority, 20 percent

saying deficit spending is the highest priority.  National

security/terrorism 12 percent. 

So they do seem to be getting through on jobs and the economy being at

least a high priority. 

STEIN:  Well, that‘s the thing.  And what‘s frustrating for

progressives is there‘s this huge sort of impetus to address the deficit in

government spending.  That is the political cause celebre. 

You see it actually in England, but you see it domestically as well. 

And that sort of contrasts to the idea that you need to actually continue

to stimulate the economy, which of course requires spending money.  And so

there‘s these two planks here. 

The president has said he wants to cap discretionary spending starting

next year.  A lot of people say why are you doing that when you‘re just

trying to get out of the recession, what you need to do now is actually

continue to spend money.  And here you have the contrast between politics

and sound policy.  And so we‘ll see how the White House can actually do


O‘DONNELL:  Now, where does the president go from here?  They‘ve

pivoted clearly off of health care.  They got the bill signed.  And there

was that cloud over their effort to address the economy. 

They do seem to have a clear shot at addressing the economy now.  They

do seem to have pushed up their numbers a little bit in terms of the

public‘s belief that they‘re addressing it.  But what moves do they have to


STEIN:  That‘s the thing. 

O‘DONNELL:  -- between now and October?  What‘s left? 

STEIN:  See, that‘s the thing.  When they were doing the stimulus

package, the big complaint was you‘re going to have one shot, you might as

well take it all, because you can‘t go back to Congress and say I want

another $100 billion.  It‘s just not going to happen. 

They do have a jobs bill that‘s coming out.  It‘s going to be fairly

watered down.  And we‘ll see if they can get it done before recess. 

But the other thing is they need events to not conspire against them. 

This president has wanted to talk about jobs forever, and then all of a

sudden someone tries to blow a car bomb up in Times Square, or an oil spill

off of the Gulf Coast happens, and suddenly he‘s being drawn into other


This White House desperately wants to just talk about jobs between now

and November, tout the successes of the stimulus, stick it to Republicans

for opposing it, and make that the narrative.  The problem is, can they do

it in this crazy media environment where it seems like one disaster‘s

happening after the next? 

O‘DONNELL:  Well, even if they did have the clear field, though, what

is the Republican argument against the president?  Because people pretend

that the president—

STEIN:  Government spending.

O‘DONNELL:  -- gets up there and talks without objection.  When he

finishes his talking points on jobs, what‘s the Republican counter? 

STEIN:  Yes.  Well, the thing is the Republican argument is getting

softer and softer, because what you saw in April was there‘s 444,000 new

jobs.  It‘s tough to say where are the jobs when the data‘s there. 

O‘DONNELL:  All right.  We‘re going to break it there. 

Coming up, the liberals want to know, is Elena Kagan liberal enough? 

The answer is it comes down to trusting the president. 

That‘s next. 


O‘DONNELL:  Welcome back. 

Supreme Court nominee Elena Kagan today continued to make the

traditional rounds of courtesy calls on senators who will decide her fate

while some liberals continue to worry that she might not be liberal enough

to replace John Paul Stevens, the liberal anchor of the court. 

We don‘t know.  We can‘t know how a Supreme Court nominee will vote

after she joins the court.  Look at who Elena Kagan will be replacing.

Justice Stevens, a Republican, was appointed to the federal bench by

Richard Nixon.  Republican President Gerald Ford put Stevens on the Supreme

Court in 1975.  Stevens passed two rounds of vetting in the Nixon and Ford

administrations, vetting designed to reassure those presidents that he

would be a reliable conservative on the court.  No one would have dreamed

in 1975 that Stevens would become the most liberal member of a court that

now includes justices chosen by Bill Clinton and Barack Obama. 

Here is what Stevens had to say in a 2007 interview about his

liberalism: “I don‘t think of myself as a liberal at all.  I think as part

of my general politics, I‘m pretty darn conservative.”

Imagine if Elena Kagan had ever been caught saying those same words. 

Liberals would be in a panic about her today. 

Elena Kagan has obviously lived her entire professional life for this

moment.  She has carefully avoided controversy, unlike the justice she

clerked for, Thurgood Marshall, who, as a lawyer, bravely threw himself

into the center of the most controversial cases of his era.  Marshall

risked his life trying cases in southern towns where he was not allowed to

sleep in hotels and where he knew he was not safe. 

Elena Kagan is no Thurgood Marshall.  No one on the Supreme Court is. 

The weight of the court now is to avoid controversy.  So we don‘t know

a lot about Kagan, but we do know a lot about the man who appointed her. 

Barack Obama is the wisest and most learned legal scholar ever to occupy

the White House.  That‘s who Kagan would have had to fool if she really

were some sort of stealth conservative. 

And Elena Kagan is very smart, but not that smart.  I don‘t think she

fooled Barack Obama. 

Coming up, Joe Sestak has surged past Arlen Specter just days before

the Pennsylvania primary.  But the Pennsylvania Democratic machine is

trying to stop him in his tracks.  That‘s next.


O‘DONNELL:  Welcome back to THE ED SHOW.  I‘m Lawrence O‘Donnell, in

for Ed Schultz.  We‘re less than a week away from the Democratic Senate

primary in Pennsylvania, and it is going down to the wire.  The one-time

long shot, Congressman Joe Sestak, has surged in the polls recently against

incumbent Senator Arlen Specter.  The two are now running neck and neck. 

And Sestak is not letting up.  Putting this new ad out today. 


UNIDENTIFIED MALE:  The race between Sestak and Specter is a dead

heat.  So compare the records.  On supporting Pennsylvania seniors, Sestak

scores better.  On standing up for civil rights, Sestak.  Protecting the

environment, Sestak‘s record is twice as good as Specter‘s.  Issues

important to women, Sestak‘s record is better. 

The best Democrat for Pennsylvania‘s future, Joe Sestak. 


O‘DONNELL:  Meanwhile, a new Quinnipiac poll shows Sestak holding his

own in the general election as well.  He trails Republican front-runner Pat

Toomey by only two points, 42 to 40 percent, while Toomey leads Senator

Specter by seven points, 47 to 40. 

For more on what to expect on the Pennsylvania primary next Tuesday,

let‘s bring in the world‘s greatest expert on these subjects, Chuck Todd,

NBC‘s chief White House correspondent, and co-host of MSNBC‘s “The Daily

Rundown.”  Chuck, what the Chuck is going on in Pennsylvania?  How does the

White House feel about that Specter endorsement? 


interesting about it is I think that you talked to them and you talk to

them behind the scenes and they say, well, what else were we supposed to

do?  He gave us the 60th vote in the U.S. Senate at the time.  Of course we

were going to endorse him.  Of course we were going to help him. 

But notice what they‘re doing this week.  It‘s a hands-off policy. 

Why?  Because I think we‘re finding out, you know, sometimes things aren‘t

complicated.  Democratic primary voters are very loyal Democrats.  That‘s

why they show up and actually vote in primaries.  We know not the whole—

the entire Democratic party doesn‘t show up and vote in primaries.  The

ones who do are pretty loyal Democrats. 

Well, in Pennsylvania, I bet you most of those folks have never pulled

the lever for Arlen Specter.  Maybe casual Democrats have in general

elections, but not ones that actually show up in primaries.  And I think

this is just a simple case of once Joe Sestak reminded Democratic primary

voters that Arlen Specter was a Republican for 30 years, that that‘s when

the numbers started to move. 

And I think the reason you‘re seeing this angst among the Pennsylvania

Democratic sort of establishment is, you know, Sestak has not played ball

with them.  He didn‘t play ball when he was running for Congress.  And you

know, they‘re not going to have a seat at his table if he‘s the nominee. 

And I think that concerns some of them a little bit. 

O‘DONNELL:  When you see that poll, Chuck, with Sestak running better

against the Republican than Specter does, is the White House secretly

rooting for Sestak here, if they really want to hold on to that seat in


TODD:  Can I tell you that I‘ve—basically, I‘ve unofficially

surveyed I think some of the smarter folks around here, and they‘re pretty

split.  You know, some of them will make the case that Specter‘s the better

nominee.  Some will make the case that they see oh, OK, maybe Sestak.  You

talk to other Democratic operatives around here, and it is split, although

you‘re starting to see them come around on Sestak.  They say, well, in this

year, in this anti-incumbent environment, having less of a track record in

the U.S. Senate might be a better thing. 

I can tell you this: there are a lot of Republicans around town who

realize they‘ve got to run a different type of race.  It was an easy

campaign that Toomey was going to run against Specter.  Didn‘t mean he was

going to win, but he knew how he was going to run against Specter.  It‘s a

different race if Sestak‘s the nominee. 

O‘DONNELL:  Chuck Todd, thanks very much for joining us on this one. 

TODD:  You got it, buddy. 

O‘DONNELL:  Now let‘s turn to Democratic Congressman Chaka Fattah of

Pennsylvania.  Congressman Fattah, you endorsed Arlen Specter in this race. 

Having any second thoughts about that, as you watch Joe Sestak surge? 

REP. CHAKA FATTAH (D), PENNSYLVANIA:  Well, I know that in the poll

you that mentioned, the Quinnipiac poll, Specter‘s ahead actually, in terms

of the election next Tuesday.  And I didn‘t want to leave that out of the

discussion.  I know Chuck has already written the Specter obituary.  The

White House—

O‘DONNELL:  Well, Chuck hasn‘t written it, but some of us here are

starting to write it. 

FATTAH:  That‘s fine.  But that‘s why we actually—that‘s why we

actually play the game.  You know, the Flyers tied the series.  And you

know, it‘s just like a hockey game or any other kind of game.  You actually

have to play it.  And it‘s going to be played on Tuesday, not today.  And I

think that Specter‘s going to win this race.  And much like “the New York

Times” said when he switched parties, no matter what party he‘s in, if you

look at what he‘s done on health care alone, he should be re-elected to the

U.S. Senate. 

But that whole speech on the front end, the president talking about

this economic recovery, would not be possible without Senator Specter‘s

vote on the Stimulus.  And I know that somebody wants to suggest that

somehow people are moving away or the White House is silent.  There‘s an

Obama for Specter commercial running almost every second in the

Pennsylvania media market, where the president says that he loves the

Democratic party, he loves Arlen Specter. 

And that 60th vote is important.  And Governor Rendell‘s working hard. 

We‘re all working hard.  And anyone who is counting Senator Specter out has

no knowledge of his electoral history.  He‘s always been in tough battles. 

They‘ve always been close.  And he‘s always won. 

O‘DONNELL:  Now, in an anti-incumbent year, might it have been better

for the governor and for you and for all these incumbent office-holders in

the Democratic party in Pennsylvania simply to hang back and not do an

endorsement in this race?  Might it be that the weight of all those

endorsements from the incumbents in an anti-incumbent year is actually

hurting Specter up there? 

FATTAH:  Well, look, there‘s a lot of smart people in this world.  I

can just tell you this: my judgment of what‘s going to happen with

incumbents is what always happens, most of them are going to get re-

elected.  You can talk about it being an anti-incumbent year.  Most

incumbents are going to get re-elected.  There are going to be some tough

races with tough circumstances, but the reality is the governor of our

state, the mayor of Philadelphia, the major newspapers in our state, the

“Philadelphia Inquirer” and others, have looked at both of these candidates

and have said that Arlen Specter is the best person to represent our state. 

And I think that‘s going to have meaning.  And we‘re not running away

from the fact that these are people who actually have helped

Pennsylvanians, who focused on these issues, who know these candidates, and

they‘ve chosen Arlen Specter.  I think that‘s a plus in his column.  And

we‘ll see how the voters think on Tuesday. 

O‘DONNELL:  Congressman Fattah, thanks for joining us tonight.  And

good luck dealing with Joe Sestak if he wins. 

FATTAH:  Look, I know him well and we want him to win that seat in

Congress, so we can hold on to our majority if he decides to run for the


O‘DONNELL:  Thanks, congressman. 

FATTAH:  Thank you. 

O‘DONNELL:  Now let‘s get some rapid-fire response from our panel on

these stories.  President Obama is in Manhattan right now to thank local

authorities who responded to the bomb in Times Square.  It comes as the

Homeland Security Department is under fire for cutting security funds for

New York City. 

The NBC News poll shows Americans support Arizona‘s controversial

anti-immigration law. 

And Hawaii has said it has had it with the Birthers.  The state

adopted a law that allows them to legally ignore requests for the

president‘s birth certificate. 

With us tonight, former CIA officer Jack Rice and “The Hill‘s” A.B.


A.B., let‘s go backwards from Hawaii to the—they don‘t have to—

if you want a copy of the president‘s birth certificate, there‘s now a law

in Hawaii that you can be ignored.  Is that a victory for reason or is the

government being a little too harsh on this one? 

A.B. STODDARD, “THE HILL”:  Well, I imagine it must be temporary,

right?  When President Obama‘s no longer in the White House, they‘re going

to have to rescind this, I would think. 

O‘DONNELL:  Good question. 

STODDARD:  In terms of open government, we‘re not trying to close up

government, we‘re trying to open it.  So it strikes me as something

temporary.  Although you can imagine what drove them to this madness.  I

mean, that they‘re literally so inundated with requests that they couldn‘t


O‘DONNELL:  Jack, reasonable choice for Hawaii?

JACK RICE, FMR. CIA OFFICER:  I agree with A.B. actually on this. 

Obviously, with transparency, you want to be able to get what it is that

you want.  But I think their response was a reasonable one, in that what

they were getting was the same question over and over, sometimes from the

very same people.  And so as a result, they need to do something

responsible.  For the fiscally responsible party, you would imagine that

Republicans would say gosh, you know, what maybe we should stop asking the

same question a bunch of different times.  Taxpayers are getting tired of


O‘DONNELL:  Yeah.  Let‘s take a look at the NBC News/”Wall Street

Journal” poll on support for the Arizona immigration law; 64 percent

support, 34 percent opposed.  Does that surprise you, A.B.? 

STODDARD:  I am surprised 49 percent of Democrats would like it to

pass in their own states.  This is very popular.  Even though, at the same

time, the most surprising figure is that 66 percent of those polled,

matching the number who support it, think it will lead to discrimination

against Latinos who are in this country legally. 

I mean, this is—they know that it will lead to discrimination and

they still support it.  We have a real immigration problem on our hands

here, and that is why people want some action. 

O‘DONNELL:  Jack, how do you read that poll?  Sixty four percent

supporting the Arizona law. 

RICE:  It‘s disturbing, let‘s face it.  Let‘s go back to the Civil

Rights Movement.  If we actually go to majority vote, all that would go

down too.  So my attitude is that it was wrong for people from a majority

of people to think what they thought then.  It‘s still wrong across the

country now.  It shows we have a long way to go. 

O‘DONNELL:  Jack, let‘s stay on your expertise.  Homeland Security

Department cutting spending for security funds in New York City in the wake

of what‘s happened in Times Square.  The timing‘s not so good on that one. 

RICE:  You know, the president is having problems right now with the

oil issue too, isn‘t he?  All of a sudden, let‘s drill off the coast and

then you get what‘s happening in the Gulf.  You‘re right.  That‘s an issue. 

At the same time, the White House is pushing back.  If you take a look

at the Recovery and Reinvestment Act right now and add that money back in,

there‘s actually an increase in the amount of money being spent in New

York.  It‘s about 24 percent more than what President Bush was spending. 

But the bottom line really has to be not just what you spend but what

you spend it on.  I think that is critical.  We look at the latest case and

what happened with obviously the Times Square case, and even with

Abdulmutallab—if we look at what has happened in the past, we‘re doing a

lot of the right things.  So I‘m encouraged by that, and I think we all

should be. 

O‘DONNELL:  New York delegation‘s up in arms about this.  Not

surprisingly, but they make a case, especially in the wake of the Times


STODDARD:  Yeah, there‘s bipartisan criticism from the New York

delegation.  Look, as a native New Yorker, I‘ll tell you, we don‘t have

time to delve into the details that Jack just gave us, about how actually

the bottom line is there‘s still the same amount of money.  When they look

at numbers, transit funding—they think the next attack is coming on the

subways.  Transit funding from 150 million down to 111, protection for the

ports, 45 million down to 33.  Those numbers scare them.  It‘s not good

enough.  And that‘s why you see Democrats joining Republicans saying—

O‘DONNELL:  Go ahead. 

RICE:  One last point here, the bottom line is what this all proves is

that New York City is still the number one target in America for terrorist

attacks.  And so I think people really do hold on to that.  And they think

about that.  And frankly they should. 

O‘DONNELL:  A.B., in moments like this, when it comes time for cost

cutting, do they take—do the Democrats in the White House take New York

for granted?  They look at that state and think we‘re going to win that

state, doesn‘t matter what we do?  Is that part of the calculation? 

STODDARD:  I would imagine they would have to.  It is not purple.  It

is not a problem.  And that‘s just—that‘s terrible political cynical

reality, but I think you‘re right.  Even though it is the number one


O‘DONNELL:  All right.  We‘re going to break it right here.  Thanks,

A.B. and Jack.  Coming up, Jonathan Turley on Elena Kagan‘s hard to read

record.  That‘s next.  


O‘DONNELL:  Welcome back.  Supreme Court nominee Elena Kagan was back

on the Hill for a second day of meetings with senators.  Her visit was met

with cursory praise from most Democrats and predictable caution from most

Republicans.  But the reactions from two senators are worth noting.  The

first is Senator Arlen Specter, who voted against her for solicitor general

when he was a Republican.  As we heard in the last block, he‘s now battling

in a Democratic primary in Pennsylvania, and yet he still refused to commit

to voting for her.

And there was this striking comment from Republican Senator Scott

Brown, the junior senator from Massachusetts.  Brown says his meeting with

Kagan convinced him she supports the military, even though she banned

military recruiters from campus when she was dean of Harvard Law. 


SEN. SCOTT BROWN ®, MASSACHUSETTS:  It was very clear to me after we

spoke about it at length, is that she is supportive of the men and women

who are fighting to protect us, and very supportive of the military as a

whole.  And I do not feel that her judicial philosophy will be hurting our

men and women who are serving. 


O‘DONNELL:  The Senate‘s newest Republican may have just punctured a

major GOP attack line.  For more, let‘s bring in Jonathan Turley, a

professor at George Washington University School of Law.  Professor Turley,

what do you make of the Arlen Specter predicament?  Here he, as a

Republican, just last year, voted against the confirmation of Elena Kagan. 

And now he‘s running in this Democratic primary next week.  He can‘t even

come out and say I support the Democratic president‘s choice for the

Supreme Court. 


think that does create something of a quandary for him.  And I think you‘re

going to see that across the board.  You know, she was selected, like so

many of our recent nominees, because she doesn‘t have much of a paper

trail.  She has not made many statements publicly.  She is, in fact, an


That was I think one of the great advantages that the White House

sought.  And it‘s going to be hard to punch those shadows.  There‘s not

much there to really get much traction on. 

O‘DONNELL:  Jonathan, clearly the Republicans were I think hoping to

score some points on her attitude toward the military that she demonstrated

when she was dean of Harvard Law School.  Tell us exactly what she did do

and how you think Scott Brown‘s comments affect any strategy the

Republicans might have with that going forward? 

TURLEY:  Well, actually, Harvard Law School went back and forth in

terms of allowing military on campus.  And Kagan was part of that effort. 

She allowed the military to work through an association of students for a

while.  She found ways to accommodate them.  Then they were removed from

campus.  Then Harvard essentially backed down when federal funds were


So it‘s a very mixed record.  It‘s not a particularly compelling one

to say oh, my lord, Kagan must be anti-military.  There‘s just no evidence

of that whatsoever. 

O‘DONNELL:  And what do you make of Scott Brown‘s comments today? 

Does that—does that defuse what the Republican strategy, or does it

indicate that there may be some other Republicans will be going in that


TURLEY:  Oh, I think they‘re still going to attack on this.  The fact

is that she did act to keep the military off campus for part of this

period.  I think that is enough traction for that issue.  But it‘s not

lethal.  They still can‘t find something that‘s positively lethal in this

record.  There were a great number of deans in law schools that joined the

effort with Harvard. 

O‘DONNELL:  Do you expect them to find anything in the White House,

the Clinton White House documents, memos of Elena Kagan‘s that can be in

some way useful in productively evaluating how she would operate on the

Supreme Court? 

TURLEY:  Well, those are always very dangerous for nominees because

they are largely unguarded moments where you‘re sharing thoughts, and many

times you‘re putting ideas out there.  You know, Kagan is an academic, and

academics are used to pushing the envelope and suggesting things that they

might not ultimately support.  And so that‘s what makes these so difficult. 

Sam Alito had a problem like that in the Justice Department when he seemed

to—well, he didn‘t seem to.  He clearly opposed what became known as

Gardner Versus Tennessee.  He seemed to suggest you could shoot unarmed

fleeing suspects.  But ultimately that didn‘t produce much of a problem for

him in his nomination. 

O‘DONNELL:  OK.  We‘re going to have to wrap up there.  Thank you,

Jonathan Turley.  We‘ll be back, I‘m sure, for more updates on the Supreme

Court story.  Thanks a lot. 

TURLEY:  Thanks, Lawrence.

O‘DONNELL:  And we‘ve got a few stories to update here tonight.  We‘re

learning a little more about the so-called Miracle Boy tonight.  Doctors

say the lone survivor of that plane crash in Libya is miraculously in good

condition.  The survivor is a nine-year-old Dutch boy.  He had surgery on

his shattered legs and is expected to make a full recovery.  The crash

killed 103 people on board. 

And finally, Ed is down in Greenville, South Carolina today.  He

played in the BMW Pro-Am with his professional golfer son, Dave.  The

Schultz duo finished five under for the day and are still in the hunt to

take it all.  We‘ll give you an update tomorrow night on whether Big Eddie

and his son Dave made the cut.  Good luck, guys. 

Coming up, Republicans want to protect the Second Amendment rights of

people on the terrorist watch list, and Democrats are letting them get away

with it.  The American people want them to step up.  That‘s next on THE ED



O‘DONNELL:  Welcome back.  In the face of loud opposition and

passionate rallies from gun rights activists, Democrats have shied away

from addressing gun control head on, so much so that the Brady Campaign to

Prevent Gun Violence gave President Obama an F for his lack of attention to

the issue.  Joining me now for more on this is Paul Helmke, president of

the Brady Campaign.  Paul, you have some new polling indicating that the

public is opposed to what they‘re seeing now in these public rallies of

people carrying weapons. 


politicians shouldn‘t be afraid to talk about this issue.  We asked people

whether they support or oppose people openly carrying guns in public.  They

say no, they don‘t want that.  They‘re opposed to people carrying loaded

guns, concealed or openly in public.  They say they‘re a lot less likely to

vote for politicians that are trying to push more guns into the public. 

They‘re opposed to places like Starbucks allowing guns to be carried

into their places.  It‘s clear that a strong majority of the American

people, particularly females, are strongly against this idea that we want

more guns in more places. 

O‘DONNELL:  So these gun rallies, in effect, seem to have gone too far

for the average Americans.  Are Democrats missing an opportunity here to

jump into that political spot and take that territory? 

HELMKE:  I think Democrats are clearly missing the message.  We‘re not

trying to ban guns.  The American people don‘t want to get rid of all the

guns that are out there.  But they want some common sense.  They want to

make it harder for dangerous people to get guns.  They don‘t want to see

guns in every part of their lives.  They want some common sense here. 

But politicians that shy away, that are afraid to talk about it, those

people are missing the boat because the people are behind them. 

O‘DONNELL:  There‘s no pending legislation even for people to rally

behind on the—

HELMKE:  Well, there‘s legislation to close the so-called Gun Show

Loophole.  This is something that says if we do background checks with

federally licensed dealers, let‘s do background checks at gun shows, too. 

Right now, if you‘re a so-called private seller, you can sell a gun to a

felon or somebody who‘s dangerously mentally ill—

O‘DONNELL:  We have Republican senators coming out saying it‘s OK to

sell guns to people who are on the no-fly list.  There seems to be a

missing move for Democrats. 

HELMKE:  This is a crazy one.  Right now, you can be on the terrorist

watch list and you are allowed to buy guns in this country.  And some of

the Republican senators say—

O‘DONNELL:  We‘ve got to leave it there.  Paul Helmke, thank you very

much.  We‘re going to come back to this one. 

Tonight, in our phone survey, I asked you, do you believe BP knew

disaster was coming?  Eighty eight percent say yes; 12 percent say no. 

That‘s it for THE ED SHOW tonight.  I‘m Lawrence O‘Donnell. 

“HARDBALL” with Chris Matthews starts right now. 




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