updated 6/29/2010 11:38:31 AM ET 2010-06-29T15:38:31

Guests: Arlen Specter, Dawn Johnsen, Kate Sheppard, Thomas Haenz, Ross
Douthat, Sam Stein, Dean Baker, Jonathan Alter

CHRIS HAYES, ANCHOR:  Good evening.  Welcome to “The Ed Show””.  I‘m Chris Hayes from the nation in for Ed Schultz.  These are the stories that are hot tonight.
Play ball.  The Republicans are in an umpire state of mind as the confirmation charade or I guess process is the word begins for Supreme Court nominee Elena Kagan.  Senator Arlen Specter joins me live in a moment.
Arizona‘s other anti-immigrant bill will be heading to the Supreme Court.  Not that one.  Details coming up.
There are fears that America is sliding into other depression with a “d”.  Watch in horror as the world‘s leaders yell fire, fire, in the middle of a flood.  We‘re going to inject some sanity coming up.
But today, the Senate Judiciary Committee hosted President Obama‘s Supreme Court nominee Elena Kagan for the opening day of confirmation hearings.  My wife works in the White House counsel‘s office.
Kagan, the current solicitor general and former dean of Harvard Law School spent much of the appearance almost all of it.  In fact, listening to opening statements of senators and got a little preview of what lines of attack the GOP is hoping to advance.  There were a lot of them.
(BEGIN VIDEO CLIP)
SENATOR JEFF SESSIONS, RANKING MEMBER, JUDICIARY COMMITTEE:  Miss Kagan has less real legal experience of any nominee of any in at least 50 years and it‘s not just that the nominee has not been a judge.  She has barely practiced law and not with the intensity and duration from which I think real legal understanding occurs.
SENATOR CHUCK GRASSLEY, ® JUDICIARY COMMITTEE:  You‘re relatively thin record clearly shows that you‘ve been a political lawyer.  Your papers from the Clinton library have been described as and these aren‘t my words is, a flair for the political and a flair for political tactics.  You‘ve been described as having, quote “another quote, finely tuned political antenna,” and a political heart.
SENATOR JON KYL, ® JUDICIARY COMMITTEE:  Miss Kagan, has called Erin Barack her judicial hero.  Justice Barack is he widely acknowledged as someone who took an activist approach to judging.
(END VIDEO CLIP)
HAYES:  And you‘ll be hearing a lot more of those, but the problem isn‘t the attacks in the GOP.  The problem that these confirmation hearings have become somewhat maddening affairs indeed none other than Elena Kagan herself famously said as much in 1995 in the University of Chicago law review.
When she described confirmation process as a “vapid and hollow charade in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis.”
Since she wrote those words, it has only gotten worse.  I think we have John Roberts largely to blame.  It was Roberts who contended that a good judge is a complete political blank slate with no views whatsoever, an umpire as he very famously put it.
(BEGIN VIDEO CLIP)
JOHN ROBERTS:  Judges are like umpires.  Umpires don‘t make the rules.  They apply them.  The role of an umpire and a judge is critical.  It is a limited role.  It‘s my job to call balls and strikes and not to pitch or bat.
(END VIDEO CLIP)
HAYES:  Today, Wisconsin Senator Herb Kohl deserved some props for pointing out what a transparently ludicrous analogy this is.
(BEGIN VIDEO CLIP)
SENATOR HERB KOHL, (D) JUDICIARY COMMITTEE:  Deciding Supreme Court cases is not merely a mechanical application of the law.  There will be few easy decisions and many cases will be decided by narrow margins.  You will not merely be calling balls and strikes.  If that was the case, then Supreme Court nominations and  our hearings would not be the high stakes events that they are today.
(END VIDEO CLIP)
HAYES:  Judges are called judges because they use their judgment.  And the issues subject to that judgment are infinitely more complex than where a curveball crossed a batter‘s knee.
Think about it this way, we can imagine a day when a camera and a computer calls balls and strikes, but short of the dystopic Skynet-dominated future there will never come a  time when our Supreme Court is populated solely by machines.
And yet despite the fact, she must have known how absurd this idea of judging was, Sonia Sotomayor did little to challenge the Roberts premise of judge as umpire when she faced the committee last year.
In so doing, she insured herself, I think a relatively smooth confirmation but she only helped to further obscure the central fact about judging, that it is often an inescapably political act.  As we know and surely Kagan knows confirmation hearings are also certainly inescapably political acts.  So today, Kagan took the pledge to be impartial, whatever that means.
(BEGIN VIDEO CLIP)
ELENA KAGAN, SUPREME COURT NOMINEE:  I will make no pledges this week other than this one.  That if confirmed, I will remember and abide by all these lessons.  I will listen hard to every party before the court and to each of my colleagues.  I will work hard and will do my best to consider every case impartially, modestly, with commitment to principle and in accordance with law.
(END VIDEO CLIP)
HAYES:  And so here we are, caught in a bizarre contradiction.  The Supreme Court nomination process has never been more explicitly politicized than it is now while the nominees have never been more emphatic that they have now views and certainly no politics.
We don‘t learn much about the nominee and we actively mislearn just what it is the court does and why it matters.  I want you to get your cell phones out.  We want to know what you think.  Tonight‘s text survey question is, do you agree with Kagan‘s 1995 assessment that the confirmation hearings are a quote “charade.”  Text A for yes, and B for no to 622639.  We‘ll bring you the results later in the show.
Now, joining me now is Democratic Senator Arlen Specter of Pennsylvania.  He is a member of the Senate Judiciary Committee.  Senator, thanks so much for joining me.
SENATOR ARLEN SPECTER (D) JUDICIARY COMMITTEE:  Nice to be with you. 
Thanks for the invitation.
HAYES:  Senator, I was looking back at the statement that you gave on the floor when you decided to vote against Elena Kagan when she was nominated for solicitor general.  I‘m wondering if—with a year of experience under her belt, you think that—you cast the right vote the first time around on her?
SPECTER:  I do because I wanted to know as solicitor general when the Supreme Court asked whether they should take the case, what she would do.  She had some very big cases.  She has a case involving the holocaust victims suing an Italian insurance company.
And the Supreme Court looks to the solicitor general representing the government‘s point of view as to whether to take the case.  We had a case involving the survivors or victims of 9/11 where Congress had made a determination that sovereign immunity did not apply.
And I wanted to know what position she would take as a solicitor general on the recommendation.  And she declined to answer those questions, and that was the basis for my negative vote.
HAYES:  Now, Senator, do you think that it‘s a same sort of standard that should be applied here?  I mean, it seems that you had substantive disagreements with her refusal to answer sort of proactive legal questions about whether she would challenge certain laws.
Clearly there‘s a sort of norm in place that nominees don‘t answer those kinds of questions about upcoming cases before the court.  Do you think that‘s the kind of standard you‘re going to transfer here or do you feel like there‘s a different standard in these hearings?
SPECTER:  Well, the standards are different.  I will not ask her how she would decide a case, but I am going to press her on whether she would hear a case.  For example, we have the warrantless wiretaps.  We have a congressional statute saying that the exclusive way to get a wiretap is to go to a judge and get probable cause and a warrant.
You have the president having warrantless wiretaps asserting that it is Article 2 power.  Now, arguably, that‘s sharpest conflict in the history of the country between the Congress under the Foreign Intelligence Surveillance Act and the president under Article 2.
And a Detroit District Court judge declare it had unconstitutional of the Sixth Circuit ducted on standing which is a way of avoiding on facing it with a dissent which was much sharper than the 2-1 majority.  The Supreme Court was asked to take the case and they declined and when I met her on the so-called courtesy visit and later I followed up with a letter, I want to know whether she would have taken that case.  It‘s already been decided.  But I want to know it may come back.
There‘s a case in San Francisco which may bring it back and I think it‘s fair to ask her if she would take the case.  Congress has the authority to tell the court what cases to take.  For example, we told them to take the flag burning case.  We told them to take campaign finance.
With that authority to tell them what cases to take, I think it‘s at least fair for to us to be able to get an answer, not how she‘ll decide it, but whether she would take the case to decide.
HAYES:  All right.  Senator Specter, thank you so much for your time.
SPECTER:  Always nice talking to you.  Thank you, Chris.
HAYES:  For more let me bring in Dawn Johnsen, a law professor at Indiana University‘s Maurer School of Law and previously a nominee to head up the Department of Justice‘s Office of Legal Counsel.
Dawn, it‘s a great pleasure to have you here tonight.
DAWN JOHNSEN, INDIANA UNIVERSITY MAURER SCHOOL OF LAW:  Thank you for having me, Chris.
HAYES:  So you watched the hearing today I imagine and I‘m curious what your thoughts are.  To the degree to which it seems like the window of what is sort of allowable and acceptable, what we can talk about, frankly, always seems to be closing from each confirmation hear into next.  Do you feel like things are really constrained?  Is it a one-way ratchet?  Was that your sense today watching?
JOHNSEN:  I did watch today.  I think it went very well for Elena Kagan despite the fact that several senators seemed to be looking for a reason to vote against her.  I think her strong qualifications did come through and the message was that she will almost certainly be confirmed.
I also do think we‘ll see tomorrow pressure on her to answer questions, more so than we‘ve seen in the past.  Given the 1995 article that you cited and her previous statements, I think that‘s a good thing.  I believe the nominee should talk about their legal views as Solicitor General Kagan has said in her own writing and certainly the senators will cite that back to her.
So I‘m optimistic.  I do think today we heard some important progress.  You heard the Democratic senators and Republican senators all talking very specifically about an 5-4 critical Supreme Court cases.  They had very different visions and emphasized different cases, but it was—I think a very good educational experience already for the American public.
HAYES:  Now, you‘ve written prodigiously about executive power, the abuses thereof particularly under the Bush administration.  If you were sitting there, wave a magic wand, Senator Dawn Johnsen up at the committee, what are the sort of things that you would want to hear from a Supreme Court nominee about those issues, about executive power?
JOHNSEN:  Well, I do think having someone who has the kind of experience solicitor general has in the executive branch opens a door to more questions on that subject.
And they‘re among the most important that have confronted the court in the last decade or so.  So I think it‘s fair game to ask her about cases the Supreme Court has already decided about the scope of presidential power in the context of the war on terror and also the assertions of sweeping power that we heard from the Bush administration.
So I actually think that a Supreme Court nominee on issues of executive power, even if they haven‘t already served in the executive branch, should be asked quite specific questions about their legal views on past cases.  Certainly they cannot be asked to say how they would rule on a future case.  That‘s off limits.
Nobody can test that.  But there‘s great room for talking generally about one‘s approach to executive power, congressional power, the separation of powers, whole host of specific issues within that framework.
HAYES:  Well, I hope we get some questions on executive power tomorrow.  Professor Johnsen, thank you so much for joining me tonight.
JOHNSEN:  Thank you.
HAYES:  Coming up, the end of an era.  Senator Byrd passes at the age of 92.  The longest serving senator in U.S. history will be remembered for a career that span the nation‘s moral arc on race.  Remember the KKK to an Obama supporter.
But I think a spotlight needs to be shined on the unpopular truths he told about his state‘s most powerful interest in the waning days of his life.  You will not believe how many Americans actually think the president was not born in the  United States.
The number is absolutely frightening.  The panel weighs in.  All that, plus Huckabee says he‘s best fit to take on Obama and Oprah Winfrey, the senator.  You‘re watching “The Ed Show” on MSNBC.
(COMMERCIAL BREAK)
HAYES:  Coming up, the Arizona immigration debate is heading to the Supreme Court.  No, not the Obama administration‘s looming lawsuit.  A different legal challenge that could have a major impact on what lies ahead.  The president and general counsel joins me at the bottom of the hour.  Stay with us.
(COMMERCIAL BREAK)
HAYES:  The longest serving member of Congress, Senator Robert Byrd of West Virginia passed away early this morning at the age of 92.  Senator Byrd was elected to the Senate back in 1958 after serving three terms in the House of Representatives.
As my friend John Nichols of the “The Nation” points out, Robert Byrd was born just one lifetime away from the author of the declaration of independence.  Thomas Jefferson died a mere 91 years before Byrd was born.  His record is far - Byrd‘s record that is, is far, far too long and frankly mixed to rehearse here.
But on this day as we observed Byrd‘s passing, I‘d like to highlight perhaps his greatest moment on the Senate floor, his spirited and righteous argument against war with Iraq in 2002 and 2003.  It was his vote against the war of the over 18,000 he took that he singled out as the one of which he was most proud.  Here he is on the eve of the war warning his colleagues of the folly that they had ratified.
(BEGIN VIDEO CLIP)
SENATOR ROBERT BYRD (D) WEST VIRGINIA:  When did we decide to risk undermining international order by adopting a radical and doctrinarian approach to using our awesome military might?  How can we abandon diplomatic efforts when the turmoil in the world cries out for diplomacy?
(END VIDEO CLIP)
HAYES:  That speech is justifiably famous.  But what‘s less famous is something he wrote in 2009.  I think also deserves some remembrance and attention today.
In an opinion piece in a West Virginian newspaper, Byrd took on some of the most disingenuous arguments offered by his home state‘s big coal barons in defense of the status quo.  He chastised big coal for a quote, “scapegoating and stoking fear among workers” and he called for an open and honest dialogue about coals future in West Virginia.
If a 92-year-old senator from coal-producing state can recognize the need for us to change our relationship to coal, then I think anyone can.  For more on the late senator‘s legacy on that front, let me bring in Kate Sheppard, environment reporter for “Mother Jones” joining from us Phoenix, Arizona.  How are you doing?
KATE SHEPPARD, MOTHER JONES:  I‘m excellent. Thank you, Chris.  How are you?
HAYES:  I‘m good.  So, it‘s been interesting to watch the coal state representatives as this climate change bill has move through.  I think that Senator Byrd, even if he wasn‘t necessarily a profile in courage was much moral frank and open-minded it seemed about the future of coal and the need to kind of move  past it than a lot of his colleagues have been.
SHEPPARD:  Absolutely. I mean, if we look back in 1997, this is a senator who sponsored the bill in the Senate that would essentially say the U.S. was not going to sign onto the Kyoto protocol and would not be part of any international agreement on climate change.
And then, you know, he voted against almost every climate bill or major piece of emissions control legislation that was out there for years and years and then last year we have him writing this great op-ed that says basically that coal needs to embrace the future.
That we need to think critically about what role that will play and how that will affect people in West Virginia and West Virginia workers.  This was a big turnaround for a senator from a state, which last year declared coal the state rock.  I mean, that was a huge deal for him to call on this industry to really get with the times and adapt.
I think that truly should be part of his legacy that he was on the right side of history on this.  Just a few weeks ago, one of the last votes he took in the senate was uphold the EPA‘s authority to regulate emissions, you know, to allow this agency to act on climate.  His colleague from West Virginia, Jay Rockefeller voted against that.
HAYES:  Yes, let‘s talk about the junior senator from West Virginia because I think there‘s an interesting distinction to be made here.  Whereas, Senator Byrd, the late Senator Byrd seemed to manage to kind of come around at the end of his life to understanding that the future for West Virginia has to be a future that is not as solely dependent on coal, it doesn‘t seem like Senator Rockefeller has made that leap.
SHEPPARD:  I think you‘re absolutely right.  I mean, I think what we‘re seeing here with Senator Byrd is that he was realizing here in his last years, probably realized he wasn‘t going to run again.
He really was out there I think looking out for the interests of workers in the state and for the future of the state.  You know, he wasn‘t thinking about the coal industry.  He was thinking about workers and realizing that coal is no longer the biggest employer in West Virginia.  It‘s Walmart now.  It‘s totally a different economy there and will continue to change.  I think he was seeing that on the horizon and really wanted to do the right thing on that issue.
HAYES:  And one of the things I think is so interesting is that if you sort of graph coal jobs in West Virginia and other states, I mean, the mechanization of coal particularly (inaudible) removal means that all these coal jobs.
And obviously, there are a lot of people working in coal mines as we learn tragically every time something goes wrong in them, but really it has been on the decline for a long time.
I wonder, do you see any daylight amongst other coal state represents thinking in the way that Senator Byrd was -as he demonstrated in that op-ed?
SHEPPARD:  You know, not as much as I‘d like to see on this issue, but we have seen some others turn around.  You know, we‘ve had some other coal state Democrats talk about the potential for wind.  It‘s important when you think about the fact in 2008, wind jobs surpassed the number of jobs in coal mining here in the U.S.
I mean, I think some people are beginning to think more realistically about that as an employment reality whether they‘ve addressed that as a political reality, I mean, coal is still powerful despite the fact that it doesn‘t employ as many people as it used to.  Some senators are starting to change.  Byrd was at the forefront of that.  
HAYES:  Kate Sheppard from Mother Jones.  Thanks so much for joining me tonight.
SHEPPARD:  Thanks for having me, Chris.
HAYES:  Coming up, the Gulf Coast is getting pounded with oil.  Workers are doing whatever they can to contain it.  I think the real threat needs to be contained in Washington.  Stay with us.
(COMMERCIAL BREAK)
HAYES:  Welcome back to “The Ed Show.”  The people of the gulf may finally, finally have some good news.  At this hour, tropical storm Alex looks like it is not on a direct trajectory for the oil spill in the Gulf of Mexico.
The storm around BP‘s CEO Tony Hayward is also spinning off course.  A report from a Russian news agency said Hayward planned to resign this week, but a BP spokeswoman said the report is “definitely not correct.”
Hayward may have dodged a bullet for now, but the people of Mississippi are not so lucky.  Oil made landfall on the tourist beaches there over the weekend.  Now, Governor Haley Barbour is even asking BP and the federal government for help.
An e-mailed statement, Barber said, “While command and control of on-water resources has improved, it must get much better and the amount of resources to attack the oil offshore must be greatly increased.”
Well, I understand Barber‘s concern about the gulf.  But the fact of the matter is the Gulf Coast faces two threats one we can see.  That‘s the oil spewing from the deep water horizon.  The other we can‘t and that‘s the carbon released into the air when that oil was burned.
As destructive as this is spill is, the coast can with enough time and aid reconstruct itself.  But if sea levels rise by three feet, which is what scientists expect to happen from a few degree rise in average temperature, much of the Gulf‘s Coast will simply cease to be.
No more bayou, no more barrier islands and somehow at the same time gulf politicians sound the alarm about the oil hitting their shores, they do nothing to make sure we pass the climate legislation that is literally the only chance that those shores have of survival.
It is a failure of historic proportions and the people of the gulf deserve better.  Coming up, Arizona Governor Jan Brewer says most people who come across the border illegally are actually drug mules.  President Obama sends a five-member delegation to talk to her today.
The Supreme Court just told Chicago where they can shove their gun laws.  Americans have the right to own guns anywhere they live.  My panel weighs in.
All that plus Biden‘s latest Youtube moment.  You won‘t believe how many Americans think President Obama was born outside the U.S.  You‘re watching “The Ed Show” only on MSNBC.
(COMMERCIAL BREAK)
HAYES:  Welcome back to the Ed Show.  I‘m Chris Hayes in for Ed Schultz.  The Justice Department reportedly plans to sue Arizona over its paper‘s please law.  But Arizona is potentially in hot water for another harsh immigration law, one that enacted after George W. Bush failed to get a deal on comprehensive immigration reform in 2007.  It allows Arizona to punish employer who knowingly hire illegal immigrants.  Today, the Supreme Court said, they will hear a challenge law which is a major victory for groups fighting against Arizona‘s rogue policies. 
For more on that, let me bring in Thomas Saenz, he‘s the president and general counsel with the Mexican-American Legal Defense Fund or MALDEF.  Thomas, thank you so much for joining me.  
THOMAS SAENZ, MALDEF:  Thank you, Chris.  I‘m pleased to speak with you.  
HAYES:  Thomas, I want you to tell me a little bit about what the sort of basis of the legal objection you have to this law and let me start from a sort of devil‘s advocate position, it seems like if there‘s going to be sort of harsh enforcement laws, it‘s better that the employers bare the brunt than the actual undocumented workers.  What don‘t you guys like about this law?
SAENZ:  Well, the major problem with this law is it contradicts our constitutional plan and violates constitutional values from the beginning of our nation‘s existence, we‘ve known that only one government, the Federal government should regulate immigration.  If Arizona has its own immigration laws and they differ from California‘s and those differ from New York‘s and those differ from New Mexico‘s, we would cease to be one country.  And we refer to the United States as a single entity for quite some time and there‘s just no reason to go backward.  
HAYES:  Were you sort of surprised today the court took the case?
SAENZ:  No, I think the court did the right thing.  The 9th circuit unfortunately got it the wrong.  And determined that Arizona could, in fact, enact its own employer regulations when it comes to verification of employment.  That‘s inconsistent with the Federal plan.  The Federal government in 1986 enacted an employer sanctions law that requires all of us to verify our eligibility to work before we actually receive a paycheck.  And that‘s in effect everywhere, including Arizona.  That is the Federal government‘s nationally defined system for dealing with this issue.  And no matter how much Arizona might decide that it doesn‘t like that system or thinks that system is inadequate, it simply has no constitution or authority to enact its own regulations. 
HAYES:  Thomas, I want to play you a clip from Governor Brewer.  I‘m not going to play you a clip.  I‘m just going to read this quote to you.  Take a look at it.  She was talking today about the immigrants that are coming over, she said, “We all know that the majority of the people that are coming to Arizona and trespassing are now becoming drug mules.”  The majority.  I wonder what you make of this and what you make up the way that the rhetoric seems to be spiraling out of control in Arizona. 
SAENZ:  Well, first, I think it epitomizes how uninformed the decision makers in Arizona were before they enacted SB1070.  It‘s clear that Governor Brewer didn‘t have any understanding of the issue she was allegedly dealing with.  She didn‘t have any understanding of the flaws in the law she signed even though those were pointed out to her by many, many agencies including folks inside of Arizona and the evidence of that is that she had to sign an amendment of the bill a mere seven days later.  So, there is a lot of the misinformation, disinformation that‘s even behind policymakers‘ decisions like the decision that Governor Brewer made to sign SB1070. 
Second, I agree with you.  I think the way Governor Brewer and others in Arizona and out of Arizona have really degraded our national conversation about this critical issue is deplorable.  We see more and more a depiction of peaceful migrants who are seeking a better life for themselves and their families and in some cases just to reunite with family members that they haven‘t seen for years.  We see a demonizing of these folks as though they are part of some criminal conspiracy or though they are part of some invasion.  And that‘s extremely dangerous rhetoric.  
HAYES:  Thank you, Thomas Saenz. 
Now, let‘s turn to our panel for some rapid fire response on these stories.  The Supreme Court rules, the second amendment gives individuals the right to bare arms no matter what their states or localities have to say about it.  FOX News Host Mike Huckabee, he had said, he hasn‘t closed the door on a run for president in 2012.  If he claims he pulls better against President Obama than any other republican.  And a new poll shows that almost a quarter of the population thinks our president is foreign born. 
With us tonight, Sam Stein, Political Reporter from the “Huffington Post,” Ross Douthat Op-ed Columnist from the “New York Times.”  Gentlemen, how are you?  Thank you for joining me.  
SAM STEIN, Huffington post Political Reporter:  Thanks, Chris.
ROSS DOUTHAT, NEW YORK TIMES:  Thanks, Chris.  
HAYES:  Ross, you are—you‘re the go-to Huckabee apologist.  I want you to react to this clip of Huckabee yesterday touting his prospects. 
(BEGIN VIDEO CLIP)
MIKE HUCKABEE, FORMER GOVERNOR OF ARKANSAS:  I end up leading a lot of the polls.  I‘m the Republican that clearly at this point does better against Obama than any other Republican.  I haven‘t closed the door.  I think that would be foolish on my part, especially when poll after poll shows that there is a strong sentiment out there.  I end up leading a lot of the polls. 
(END VIDEO CLIP)
HAYES:  Ross, Huckabee 2012, what have you got?
DOUTHAT:  Well, I think that‘s classic Huckabee, it‘s sort of charmingly passive aggressive in the sense that you know, Huckabee has been playing I think a very successful political game over the past year or two.  He has as he says in poll after poll some of the highest favorable ratings both in the country as a whole but specifically among republicans.  And you may remember that Huckabee in the 2008 campaign had a lot of conservative institutions, a lot of conservative organizations attacking him as a crypto liberal and so on and feuded with the conservative establishment. 
But if you look at rank and file republicans, he polls higher among them in terms of favorability.  Certainly than Mitt Romney.  Sometimes depending on the poll even than Sarah Palin.  And he‘s just been sort of hanging back, letting Palin and Palin suck up sort of the cultural energy and Romney suck up the sort of endorsement-gathering energy.  His poll numbers are really good.  He has a very popular TV show.  
HAYES:  All right.  I‘m going to break in you.  Sam, Sam, what do you think?
STEIN:  Well, you know, Huckabee now has the most powerful institution in the Republican Party behind him and that‘s Fox News.  He has a platform on FOX by which he can get out his message.  Also, not shown in that clip that sort of this gratuitous sleight at Mitt Romney.  Huckabee went through the litany of Republican candidates, praised all of them, Sarah Palin, Mitch Daniels included and then all of a sudden, out of nowhere said, you know, Mitt Romney is going to have a real problems with the health care law.  It seems like a little gratuitous slap-down.
HAYES:  Well, in defense of Huckabee, I don‘t know that any sleight of Mitt Romney could ever be fairly characterized as gratuitous.  All right, so this decision that came from the Supreme Court today is basically extending the decision to have the D.C. gun law case to the rest of the country.  You know, gun politics have disappeared so much in the natural conversation partly because of the retreat on Democrats.  I‘m wondering, Sam, if you see any appetite on the part of democrats to sort of prosecute this in the court of public opinion.  
STEIN:  None at all.  I mean, you‘ve seen not just with this case but last week as well as really the gun lobby‘s power in all three branches of government.  The Obama administration has been loath to touch this issue.  The Supreme Court handed down this ruling.  And then, last week you had this campaign finance legislation that created a huge exemption for the NRA.  And so yes, the gun lobby is a massive powerful entity in D.C.  It remains such and there‘s literally no appetite and the hill do anything about it.  
HAYES:  Ross, I want to ask you about this poll that we have.  It was out yesterday, it said 24 percent of Americans—and I don‘t want to do to much briefing here.  So, I‘m curious about your reaction of this.  Because, you know, you can dismiss these polls but I actually found this genuinely a little disturbing.  Which is that 24 percent of Americans didn‘t know which country the President of the United States was born in.  What do you make of that?
DOUTHAT:  Well, I mean, there are two ways to read it, right?  I mean, clearly on the one hand, it‘s illustrative of a certain kind of paranoia among many Americans, many right wing Americans about Barack Obama.  On the other hand, I think you really can overstate the importance of these polls.  I think if you, you know, there are polls every year that show 42 percent of Americans believe in UFO isn‘t down the line.  And here‘s also disturbing.  But I also wonder if you took that 21 percent and polled that and said, what percentage knows that being born outside the u.s. is actually a disqualification for the  presidency or if you polled them and said, what percentage know that Hawaii is actually a state, that sounds like a joke.  It sounds like a joke but. 
(CROSSTALK)
STEIN:  I mean, I find this all ludicrous obviously.  I mean, the underlying issue is they think this guy is some sort of crypto Manchurian candidate.  He‘s been in office for, you know, over a year and a half now.  If he was a crypto Manchurian candidate, why do we notice by now?  Can‘t people just move, the under conspiracy theories and just live with the fact that he‘s a legitimate president and let‘s just move to the real issues.
HAYES:  I think we‘ve discovered a lode stone of anti-Hawaiian sentiment.  
DOUTHAT:  Seriously. 
(CROSSTALK)
HAYES:  It‘s powerful and growing. 
STEIN:  Yes.
HAYES:  Through this presidency.  Sam and Ross, thank you very much. 
I‘m sorry we‘re still rushed out.  Hope to have you back. 
STEIN:  Take care, Chris.  
HAYES:  All right.  Is America heading into a third depression?  A Nobel Prize winning economist thinks so and Dean Baker responds.  
And why the heck was Rod Blagojevich talking about Oprah Winfrey on wire tap phone calls during in his corruption trial?  The answer straight ahead.  Stay with us.  
(COMMERCIAL BREAK)
HAYES:  Let us know what you think.  Tonight‘s text survey question is, do you agree with Kagan‘s 1995 assessment that the confirmation hearings are a charade?  Text a for yes, and b for no to 622639.  We‘ll bring you the results later in the show.        
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HAYES:  Since Ed is on vacation, I‘m going to put a spin on his playbook and call it my Nerd Book this week.  So, in tonight‘s Nerd Book, World Leaders of the g-20 Economic Summit in Toronto have agreed to slice their budget deficits in half over the next three years.  President Obama welcomed the commitment but also warned against slashing spending too quickly.  “New York Times” Columnist Paul Krugman had a more dire warning that the United States of America and the rest of the world could be in the early stages of a third  depression. 
He writes today in “New York Times,” “This third depression will be primarily a failure of policy.  Around the world, the most recently at last weekend‘s deeply discouraging g-20 meeting.  Governments are obsessing about inflation when the real threat is deflation, preaching the need for belt-tightening when the real problem is inadequate spending.  While long-term fiscal responsibility is important, slashing spending in the midst of a depression which deepens that depression and paves the way for deflation is actually self defeating.” 
Joining me now is Dean Baker, the columnist and co-director of the Center for Economic Policy Research.  Dean, how you doing?
DEAN BAKER, CENTER FOR ECONOMIC POLICY:  I‘m doing well.  How you doing, Chris?
HAYES:  All right.  Dean, let‘s start off just sort of—with the argument in response to the people who say, now is the time, everybody‘s panicked about, you know, sovereign debt.  Everyone‘s worried that we‘re going to end up as Greece.  There‘s all this hysterically running around.  Europe doesn‘t seem to be helping in this regard.  Why should we not listen to those people?
BAKER:  Well, they have a really good track record of being wrong on just about everything.  You know, they really don‘t have an argument.  I mean, we‘re not like Greece for 1,000 different reasons, I mean, starting from the fact that they don‘t collect taxes and we do.  Just talk to any republican.  I mean, they have massive tax evasion there.  There are a lot of the problems with Greece.  But the biggest point is simply, we print our own currency.  We control the dollar.  Greece is like Arkansas, it‘s not like the United States.  Suppose Arkansas were just to, you know, run a really big deficit and the Federal governments weren‘t to come to their aid, they‘d be in serious trouble.  The United States is not in their boat.  Anyone who can‘t tell the difference between the United States and Greece, well, probably, good idea, stop listening to that person.  
HAYES:  Are you sort of as infuriated and bewildered by what‘s going on with the g-20 as Paul Krugman seems to be and as a lot of people are?  I mean, it really does seem like, you know, it‘s the proverbial worrying about fire in the midst of a flood.  Why do you think there is this obsession with deficits when you have so much unused capacity, such an epidemic of joblessness across the world?
BAKER:  Well, it is an outrage.  I wish Paul hadn‘t used the term depression.  Because I think that leads to too easily dismissing his views.  But he‘s exactly right.  You know, it is sort of an absurd story here.  And the real problem is that the people sitting in those rooms at the g-20, none of them are unemployed, none of their friends are unemployed, none of their family are unemployed.  They‘re not the one suffering.  So, this idea that, you know, the United States with 15 million unemployed, more in Europe, I mean, it‘s a worldwide story, incredible access capacity, that is not a problem for these people. 
They‘re worried, yes, suppose we have some inflation.  Well, I don‘t want to see lot of inflation.  Reality is if we got three or four percent inflation that would be a good thing.  But if you‘re standing there simply concerned about the people on Wall Street, for them, well, their biggest worry is maybe the inflation rate will go up a bit.  They don‘t care about people being unemployed.  It‘s just a different agenda.  They don‘t have the same agenda as most of the people in their countries. 
HAYES:  What agenda do they have?  I mean, I think, that‘s one of the things that‘s important to lay out.  We‘re dealing with something distributional here.  I mean, there is a battle between, you know, recovery and full employment and whatever kind of combination of bond market vigilantism and austerity fetishism being propagated by the g-20.  What is the agenda?
BAKER:  Well, this is a distributional story.  And look at this, they‘re taking this opportunity, here‘s a crisis they created, so it‘s people like Ben Bernanke, you know, the people who are in charge created this crisis.  Their incredible incompetence letting that $8 trillion housing bubble grows unchecked, the incomparable one in parts of Europe.  Then it blows up in their face.  They rush to aid their friends on Wall Street, throw trillions of dollars in loans and loan guarantees at them.  Now that they‘re back at their feet and getting record bonuses, they‘re saying, oh, wow, why don‘t we take advantage of this opportunity.  Cut Social Security, cut Medicare and the same across Europe.  So, it‘s an incredible opportunity and they‘re going to do it if no one stops them.  
HAYES:  It‘s a disconcerting thought.  Thank you very much for joining me tonight.  A couple of final pages tonight. 
We know Rod Blagojevich loves the celebrity spotlight.  We have even some more proof.  In tape recorded in November of 2008, Blago was caught telling his dean chief of staff, he is considering asking Oprah Winfrey to take over Barack Obama‘s senate seat.  He said, quote, “she‘s a kingmaker.”  She made Obama which is not really true.  But, you know, he‘s Blago.  Also Vice President Joe Biden has a new one to add to his growing list of YouTube moments.  In the latest, he was visiting a local custard shop in Milwaukee, Wisconsin over the weekend when he got an interesting offer for a free ice cream cone.  Take a look. 
(BEGIN VIDEO CLIP)
JOE VIDEN, VICE PRESIDENT OF THE UNITED STATES:  What do we owe you?
KOPPS MANAGER:  Don‘t worry.  It‘s on us.  
(INAUDIBLE)
KOPPS MANAGER:  Lower our taxes and we‘ll call it even. 
BIDEN:  Why don‘t you say something nice instead of being a smart.
(END VIDEO CLIP)
HAYES:  Oh, bfd Joe.  And finally, I want to give a shout out to team USA.  They show a tremendous heart and persistence throughout the World Cup and I will not soon forget hugging random strangers in a New Orleans bar when Landon Donovan scored the go-ahead goal in injury time against Algeria.  If you‘re feeling down, spend time on YouTube watching the videos of reactions to that goal.  Sports at its best. 
Coming up, there‘s some major emergency going on right in front of our faces, an epidemic spreading.  I‘m sounding the alarm.  Jonathan Alter joins me next. 
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HAYES:  Welcome back.  There was a debilitating disease that suddenly began affecting one in ten adults in this country.  We would expect a pretty strong response, right?  I mean, if one house on every block, ten percent of employees in every workplace were sick with the same thing all of a sudden, people would demand a response.  Every dog catcher, mayor and legislator in this country would be getting hammered with the same question.  What are you doing to stop it?  If one in ten people in this country were infected with the disease, the response would be swift and massive.  The government would marshal all available resources to cure the sick and stop the spread.  I mean, remember the swine flu panic?
There would be tanks on the street.  It would be like a sci-fi movie.  Well, we do have an epidemic.  And it‘s called unemployment.  One in ten able-body American adults whose wants work is out of work.  There is just one job for every six people who are out of work.  And this is an epidemic.  So, where is the emergency response?  Republicans want to make the unemployment epidemic about personal responsibility.  Pull yourself up from your boot straps up.  They don‘t want the jobs that are available.  Well, no doctor would tell a sick person getting well was just a matter of will. 
Joining me now is Jonathan Alter, Senior Columnist for Newsweek and an MSNBC Analyst, he is the author of “The Promise: President Obama Year One.”  Jonathan, how are you doing tonight?
JONATHAN ALTER, AUTHOR:  Hey, Chris.  
HAYES:  Jonathan, I really have to say it does feel like there is just a stunning lack of urgency around jobs and unemployment in Washington.  Do you think that‘s a fair assessment?  
ALTER:  I think it is.  You know, the Congress tried to do something recently to jump start employment and it was on the back pages of the paper.  It was kinds of a non-story.  Part of it is that we‘re no longer panicked the way we were 18 months ago when Obama came in.  Remember, Chris, at the time Barack Obama was sworn into office, we were losing 740,000 jobs a month.  And if we had stayed on that pace, we would have been in another great depression with 20 percent plus unemployment by the end of 2009.  So a big part of the story I tell in “The Promise” is how they averted this. 
It was a really dramatic story that we didn‘t have a depression.  When something doesn‘t happen, you don‘t get a lot of, you know, credit for it, and then the pressure‘s off when the crisis passes.  And I do think that we‘ve gotten too used to 9.7, 10 percent unemployment.  We‘re now kind of taking it for granted as something normal when we should be, as you indicate, you know, treating it as a terribly pressing problem.  
HAYES:  Yes.  That‘s exactly the point.  I mean, I feel like I agree obviously.  I mean, when you look at that job, that sort of famous job chart that shows, you know, the Bush administration, the Obama  administration, you know, we clearly, the bleeding has been stopped, the patient is under hemorrhaging.  But I feel like, what‘s happening is there is a kind of normalization that‘s going around, sort of very subtly rhetorically on both sides and this comes to the White House I think, as well that we‘re going to just have to kind of accustom ourselves to levels of unemployment that in a historical perspective or totally, totally anomalies and unacceptable.  
ALTER:  Well, you know, they‘re right.  We are going to have to accustom ourselves to some higher than, you know, old normal percentage of unemployment.  You know, I don‘t know whether it‘s seven percent, six percent, whatever.  We could have an argument about that.  But clearly 9.7 percent is not tolerable.  And you know, clearly we‘re not having enough of the national conversation about it.  I mean, even when there is relatively good news like a neutral CBO estimate that the stimulus, the recovery act added between 2.5 and 3.5 million new jobs, most of them in the private sector contrary to their right wing blather on talk radio, these are not census jobs, they‘re not public sector jobs.  But it‘s not enough. 
So, we‘re adding about 250,000 jobs a month.  We‘re losing roughly 750,000 when Obama came in.  It‘s still going to be a while before we can really chip away.  But what I want is the government and the White House to be focused on cutting through red tape, maybe even pushing back against at some conventional liberalism in order to expand the number of jobs.  For instance, there‘s something called the Davis-Bacon Act.  It‘s a secret cow for organized labor, right?  It requires that the prevailing wages should be paid.  The highest wage in any area be paid on government contracts.  Well, that means there are a lot fewer people that you can employ.  So the whole idea of getting let‘s say, green jobs of people who are getting houses, that‘s barely gotten off the ground yet.  And they need to accelerator it and cut through the bureaucracy.  
HAYES:  Yes.  But John, do you really think Davis, that you can lay that at the feet of Davis Bacon and. 
ALTER:  Yes.  A lot of it is Davis Bacon.  To tell you the truth, Chris, you know, there are hard truths about liberalism that we have to face if we‘re going to move forward.  Do I want them to get rid of Davis Bacon?  No, but they could do waivers, they could do creative things.  Go to the Congress and do some things if you‘re really going to focus on jobs.  When Franklin Roosevelt established the CCC in his first year in office, they were paying $1 a day.  Organized labor was enraged by this. 
HAYES:  Right.  OK.
ALTER:  So, you do, you do have to make some compromises in order to get more people to work and you have to do some direct hiring.  WPA style hiring which is very out of fashion in this government.  
HAYES:  Thank you, Jonathan.  I‘m in the orthodox pro Davis Bacon camp.  Today in our text survey, I asked you do, you agree with Kagan‘s 1995 assessment and confirmation hearings are a charade?  Ninety two percent say yes, shocker.  Eight percent say no.  Thanks for watching.  I‘m Chris Hayes of the nation.  We‘ll see you back here tomorrow, same time 6:00 p.m. Eastern on MSNBC. 
“HARDBALL” with Chris Matthews starts right now. 
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