updated 3/25/2004 11:49:09 AM ET 2004-03-25T16:49:09

Guests: Yale Galanter, Catherine Crier, D. James Kennedy, Jay Sekulow, Michael Newdow, Paul Kengor, Peter King, Dee Dee Myers

(JOINED IN PROGRESS)

DEE DEE MYERS, FORMER CLINTON WHITE HOUSE PRESS SECRETARY:  Friends with Rand Beers, who was not a partisan until the Bush people drove him out of office and into the Kerry campaign. 

JOE SCARBOROUGH, HOST:  Well, Dee Dee, some people say that Richard Clarke doesn‘t have a political agenda.  But listen to some of his testimony today. 

(BEGIN VIDEO CLIP)

RICHARD CLARKE, FORMER COUNTERTERRORISM ADVISER:  Fighting terrorism in general and fighting al Qaeda in particular were an extraordinarily high priority in the Clinton administration.  I believe the Bush administration, in the first eight months, considered terrorism an important issue, but not an urgent issue. 

(END VIDEO CLIP)

SCARBOROUGH:  Again, this is a guy who—again, I‘m not impugning his character.  Like you said, I don‘t know this guy.  I just know, two years ago, he said the Clinton administration didn‘t do anything between 1998 and December 2000. 

And today, he comes up on the Hill and he says something completely different.  I don‘t understand why. 

REP. PETER KING ®, NEW YORK:  Let me say, I was not that critical—

I‘m not that critical of the Clinton administration.  Let me just say that. 

I think more had to be done.  And a lot of that is with hindsight.

But with Dick Clarke, the reason I am impugning his character, Dee Dee, what he‘s saying today is totally different than what he said a year and a half ago.  It‘s not a question of nuance.  He‘s saying that President Bush increased covert action by 500 percent.  He‘s saying that we changed our policy to Uzbekistan, to Pakistan, how President Bush continued to do everything Bill Clinton was doing and wanted to more.

If he wants to have honest disagreements, that‘s one thing.  But the way he‘s on television blasting—you talk about impugning his integrity.  What he‘s saying about President Bush is totally out of line based on what he said a year and a half ago himself. 

MYERS:  Well, that‘s one small slice.  We don‘t know about all the bureaucratic infighting. 

We do know that Dick Clarke was a hard charger inside.  And he‘s always—he roughed a lot of people up.  A lot of people didn‘t like him personally.  But almost nobody who worked with him, including Condoleezza Rice, ever thought that he was doing anything but the best job he could and that he was the foremost expert.  And I think he always had questions.

And if you go back to people that talked to him contemporaneously during his time in the Bush administration, he had questions about the policy.  He had questions about the Clinton policy.  So why shouldn‘t he bring this out now?  Why shouldn‘t we have a debate about this? 

(CROSSTALK)

SCARBOROUGH:  Hold on, though.  He‘s bringing it out now, though, in the middle of an election year.

(CROSSTALK)

SCARBOROUGH:  Hold on, hold on. 

(CROSSTALK)   

SCARBOROUGH:  He‘s got a book to sell. 

MYERS:  Right. 

SCARBOROUGH:  He goes on “60 Minutes” selling the book, says inflammatory statements that he‘s never said before.  People are saying, it looks awfully ideological and it looks like he‘s trying to make a quick buck.

MYERS:  If he‘s an ideologue, he‘s a hawk, OK? 

Everyone who‘s worked with him over the last 30 years agrees with that.  If he‘s an ideologue, he‘s a hard-charging hawk.  Second of all, he couldn‘t have known what was going to be happening at this moment when he signed his book contract.  OK, now, I have nothing against the guy writing a book about an issue that he spent 30 years working on. 

He has some disagreements with both administrations.  What‘s wrong with that?  And why shouldn‘t we have a debate about this?  Every time someone comes out of the Bush administration and has criticism, their character is assassinated by these folks. 

KING:  First of all, he‘s questioning the president‘s integrity.  He‘s going beyond honest differences.  He‘s questioning the president‘s integrity.  He‘s questioning the president‘s commitment to terror. 

(CROSSTALK)

MYERS:  I don‘t think he‘s questioning his integrity.  Maybe his commitment to terror before 9/11. 

(CROSSTALK)

SCARBOROUGH:  On “60 Minutes,” this is what he said—quote—

Frankly, I find it outrageous that the president is running for reelection on the grounds that he‘s done such great things about terrorism.  He ignored it,” which is exactly of what he said in his resignation letter, where he said: “It‘s been an enormous privilege to serve you these last 24 months.  I will always remember the courage, determination, calm and leadership you demonstrated on September 11.”

MYERS:  That‘s a polite letter.  And September 11 is a specific moment in time.  It does not in any way endorse his antiterrorism policy.  And that‘s the one moment I almost interrupted you in your rant. 

(CROSSTALK)

SCARBOROUGH:  But he didn‘t just limit it to September 11.  In the resignation letter, he talked about him having a vision to fight the global war on terror.  I just think, again, it sounds awfully suspicious. 

(CROSSTALK)

KING:  Yes, but now he is saying that President Bush ignored terrorism.  That is what he is saying.  That is a terrible charge to make against the president of the United States, when a year and a half ago he was chronicling all of the things that President Bush had done. 

MYERS:  But let‘s look at his record. 

He asked to be transferred out of his job in counterterrorism, according to his testimony today, because he said people weren‘t paying enough attention to him.  He was trying to raise the flag and people were not taking his urgent warnings seriously.  So he asked to be moved into cyberterror, where he said he thought he could make a contribution.  That was what he was feeling inside.  Look at the record of—the contemporaneous record of what he was doing.

(CROSSTALK)

KING:  Yes, there‘s also a personal change.

What President Bush did was, he did make the CIA director his top person on intelligence.  Now, President Clinton did not meet with the CIA director.  In fact, Jim Woolsey never met one on one the whole time that he was CIA director.  President Bush changed the policy.  Rather than meet with Dick Clarke, he was meeting with George Tenet, who was also a Bill Clinton holdover.

So, to me, President Bush was showing his commitment to the war on terror and he decided to deal through George Tenet, who had all of the intelligence, and have Dick Clarke deal with the subdeputy.

(CROSSTALK)

SCARBOROUGH:  Dee Dee Myers, let me ask you—we‘ve got 30 second left.  I want to ask you, do you think there is going to be any political fallout from this as we move through the campaign? 

MYERS:  I think there‘s going to be a debate about President Bush‘s handling of the war on terror.  I think we didn‘t have that prospect a couple of months ago.  We have it now.  This is something the Bush campaign certainly doesn‘t want.  They want to have him as the leader of the free world fighting terror.

KING:  As a partisan Republican, I look forward to a debate on the war on terrorism, because President Bush has provided great leadership and I look forward to that debate. 

And Dee Myers

(CROSSTALK)

MYERS:  We‘ll meet at the barricades.

(CROSSTALK)

SCARBOROUGH:  Meet at the barricades again.

(LAUGHTER)

KING:  And she will say, King, you were right once again.

SCARBOROUGH:  All right, Peter King, Dee Dee Myers, thank you so much for being with us tonight. 

And coming up, President Reagan‘s deep faith shaped his administration and his policies more than we ever thought.  We‘re going to be talking to a Reagan expert about some of the great communicator‘s statements on his connection to God. 

And speaking of the word God, an atheist is trying take the words “under God” out of the Pledge of Allegiance.  And he‘s taking the fight all the way to the Supreme Court.  We‘ll talk to Michael Newdow and his amazing story next. 

Plus, I‘ve got issues with “American Idol” judge Simon Cowell.  He‘s famous for being a crouch, but this time he took his irritability a little too far. 

Stick around.  We‘ll be right back.

(COMMERCIAL BREAK)

SCARBOROUGH:  Coming up, we‘re going to take a look at President Ronald Reagan‘s deep faith in God.  A Reagan biographer takes us inside the White House under the great communicator.

(COMMERCIAL BREAK)

SCARBOROUGH:  Ronald Reagan was known as the great communicator, but my next guest says that Reagan‘s most important conversations were the ones he had with God. 

Paul Kengor is a political science professor who set out to write a book about Ronald Reagan and the Cold War.  But it didn‘t take him long to see that Reagan‘s opposition to communism was a religious one and that Reagan‘s strong faith was the bedrock of his leadership. 

Here now, the author of “God and Ronald Reagan: A Spiritual Life,” Paul Kengor.

Paul, welcome to SCARBOROUGH COUNTRY.

PAUL KENGOR, AUTHOR, “GOD AND RONALD REAGAN”:  Hi, Joe.  Good to be with you.  Thank you.

SCARBOROUGH:  You know, Paul, a lot of people that thought they knew Ronald Reagan when he was president were shocked to open up some of these letters that he wrote that just keep getting released year after year after year and seeing that Ronald Reagan was an extremely spiritual man.  Explain that. 

(CROSSTALK)

KENGOR:  Yes, he had a very deep faith.  No question about it.  And as you said, the way that I came into this book, I was writing a book on Reagan and the end of the Cold War generally, and I would read all these letters, and there would be references to God and to the literal Jesus Christ. 

And it wasn‘t just the sign-off at the end of the speech, the characteristic, God bless you, God bless America, but in some cases, some pretty even deep theological statements in some of the letters that he wrote.  And I knew after a while that I‘d be writing a book not on just Reagan and the Cold War, but Reagan and the Cold War and Reagan and God, Reagan‘s faith.

SCARBOROUGH:  You know, a lot of historians are now looking back to the assassination attempt against him in 1982 being the triggering event that drew him closer to God.  Is that what you found? 

KENGOR:  Yes, absolutely, certainly during his presidency. 

Well, I found really that his entire life he was very devout.  I mean, when he was a teenager, Joe, there were people in his church that knew that this young kid was so serious in his faith that they thought he‘d be a minister when he got older.  But having said that, after the assassination attempt, yes, that‘s precisely what happened. 

Reagan became convinced that God had spared his life for a special purpose after that March ‘81 assassination attempt.  And he believed that that purpose had something to do with the end of the Cold War.  He believed, Joe—and I found speeches on this dating back to the 1950s.  Reagan believed that there were two visions of the world that were locked in dispute. 

One vision—this is how he put it.  One vision believed that human beings were all created equal by God to be free.  And he said Thomas Jefferson and Abraham Lincoln spoke for that view.  The other view believed that religion is the opiate of the masses and that a state ought to be able to control its individuals, its citizens, and Marx and Lenin spoke for that view.

And so he saw the Cold War as this contest between this country that he believed was divinely blessed, divinely chosen by God and another that was an atheistic, evil, godless empire.  And he saw a divine duty for this country to resist the Soviet Union. 

SCARBOROUGH:  As you said, he really did view the Soviet Union as evil.  And part of Ronald Reagan‘s famous evil empire speech is this, where he lays out his view of the Cold War. 

(BEGIN VIDEO CLIP)

RONALD REAGAN, PRESIDENT OF THE UNITED STATES:  The ultimate determinant in the struggle that‘s now going on in the world will not be bombs and rockets, but a test of wills and ideas, a trial of spiritual resolve, the values we hold, the beliefs we cherish, the ideals to which we are dedicated. 

(END VIDEO CLIP)

SCARBOROUGH:  Now, that offended a lot of media elites, a lot of elites in Washington, in Manhattan, in Hollywood.  Ronald Reagan really didn‘t care, did he? 

KENGOR:  No, he didn‘t care. 

In fact, another example that I highlight in the book, Reagan gave a speech in January 1984 to the National Religious Broadcasters.  And I won‘t read much, but he said, “By dying for us, Jesus Christ showed how far our love should be ready to go, all the way.”

And “The New York Times” just lost it, basically, when he said that.  “The Times” editorial pages unleashed the wrath of its judgment.  And the response to this was, “It‘s an offense to Americans of every denomination or no denomination when a president speaks that way.”  This is “The Times.”  “The president of a nation whose Bill of Rights,” Reagan is, “which enjoins the government from establishing religion, aiding one religion or even aiding all religions.”  So by “The Times”‘ estimation, Reagan‘s one utterance of the J-word had somehow constituted an attempt to establish a state religion. 

SCARBOROUGH:  Yes. 

KENGOR:  But Reagan was undeterred by this.

And, by the way, it‘s clear here also that long before “The New York Times” editorial pages were flogging Mel Gibson for his film or George W.  Bush for citing Christ as his favorite philosopher, they were attacking Reagan for his statements about Jesus. 

SCARBOROUGH:  But Reagan really was a trendsetter in the fact that he reversed the liberalism of the ‘60s and the ‘70s.  And I remember his 1980 speech, acceptance speech, in Detroit when he got the nomination.  He dared to make—give a silent prayer, and it absolutely shocked the national press. 

KENGOR:  Yes. 

SCARBOROUGH:  That a guy running for president would do that. 

KENGOR:  Yes.  That was extemporaneous.  He closed his statement by saying, boy, I‘ve thought about whether or not I should do this, but I can‘t imagine going forward without doing it.  So I‘m going to do it.  And then he said, let us pause to say a prayer before we begin this crusade—he used the word crusade. 

And Peggy Noonan writes in one of her books that when Reagan said that, she was with the CBS crew, because Peggy Noonan at one point worked for CBS.  And while the eyes were wet and moist down on the floor from people who were genuinely moved by this, and millions of Americans teared up, the eyes were rolling among the CBS news crew.  They just thought, oh, boy, listen to this guy. 

SCARBOROUGH:  Yes.  And, Paul Kengor, that‘s what we say every night here in SCARBOROUGH COUNTRY, that there‘s just a remarkable disconnect between middle America and a disconnect from the elite media.  And I think Ronald Reagan, more than anybody else, understood that. 

KENGOR:  Yes. 

SCARBOROUGH:  But even though Ronald Reagan talked about his faith, he was a bit more guarded with the press about his Christianity than, say, George W. Bush was from the very beginning of the campaign. 

I mean, why was that?  While he would give a speech here or say a silent prayer there, he wasn‘t quite as open, didn‘t wear it on his sleeve quite as much as some politicians today, did he? 

KENGOR:  Yes, that‘s exactly right. 

And what happened, Joe, was that, in the 1976 campaign, Reagan was turned off by what he saw as Jimmy Carter, a Democratic president, wearing his faith on his sleeve.  And so Reagan said, I‘m not going to do that.  But at the same time, he would be open about it if he had a very specific purpose. 

For example, when Reagan—and this is what changed the whole direction of my book.  When Reagan went to the Moscow summit in Moscow May and June 1988, everywhere he went, he was dropping religious statements.  He made—and here‘s where my book changed.  He made a stunning toast to Gorbachev at Spaso House, where he starts talking about Jesus and Judas at the Garden of Gethsemane. 

And when Reagan said that, and probably a lot of the Kremlin people

who were there might not have even know what he was talking about, frankly

·         but when he made this statement, he made it as a parable to make the argument that the two countries need to put away their swords, that they need to shake hands and have peace.  But he could have said that without going into this story about Jesus at the Garden of Gethsemane. 

So Reagan, when he was in the Soviet Union for that trip, he was making religious statements everywhere he went.  And a good question there is, well, why is he doing that?  He‘s not doing it for political reasons in the United States to appeal to, say, Christian conservatives.  He was doing it because Reagan thought, Joe, and he actually wrote this in a letter, that religion could be possibly the Achilles heel of the Soviet empire, just like it was undermining communism in Poland. 

SCARBOROUGH:  Yes. 

KENGOR:  So he thought, when I get there, when I get to the Soviet Union, every chance I get, I‘m going to drop religious references, make religious statements, because some of this, Reagan knew, was going to be televised on Soviet television for the Soviet citizens, and I want them to hear the word God coming from a politician‘s lips. 

SCARBOROUGH:  Yes.  And, of course, they certainly did.  And it was three years later that the Soviet Union fell because of a lot of things that Ronald Reagan did. 

Hey, thanks so much for being here, Paul Kengor.

KENGOR:  Great.

SCARBOROUGH:  I‘ve read your book.  I think it‘s great. 

KENGOR:  Good.  Good.

SCARBOROUGH:  I even bought it for my brother for his birthday.  He loved it, too. 

KENGOR:  Very smart.  A great gift. 

(CROSSTALK)

SCARBOROUGH:  All right, the book is called “God and Reagan.”  And, yes, it is a great gift. 

And up next, one man‘s crusade to oust God from the nation‘s pledge.  He took his case to the Supreme Court today and he sparks a fiery SCARBOROUGH COUNTRY showdown tonight. 

And then the woman who accused Kobe Bryant of rape was forced to testify about her sex life today.  Will this discourage other women from reporting sexual assault?  And will it hurt or help Kobe‘s case? 

But first, let‘s get the latest headlines from the MSNBC News Desk. 

(NEWS BREAK)

(COMMERCIAL BREAK)

SCARBOROUGH:  Our next guest stood before the United States Supreme Court today acting as his own counsel and arguing that the phrase “under God” in the Pledge of Allegiance is unconstitutional. 

Michael Newdow is a self-proclaimed atheist and he sued the public school his daughter attends and won.  And his case has made it all the way to the high court.

And, Mr. Newdow, thank you so much for being with us today.  It had to be quite an experience going before the United States Supreme Court.  How did it go? 

MICHAEL NEWDOW, PLAINTIFF:  It went pretty well.  I‘ve done about 11 moot courts, and so I was pretty prepared. 

SCARBOROUGH:  Do you think you prevailed on the argument?  Do you think the Supreme Court is going to rule your way? 

NEWDOW:  They certainly, I think, should.  The law is totally on my side.  The case saw is totally on my side.  The principles are on my side.  So I should win. 

SCARBOROUGH:  You know, there‘s an Associated Press poll out that I‘m sure you may have seen that says 90 percent of Americans want the words “under God” to remain in the Pledge of Allegiance.  And I know watching you tonight, they‘re saying, hey, what‘s the big deal?  If his daughter doesn‘t want to say the pledge, she can just sit in her seat. 

NEWDOW:  Government is just not supposed to take a position on religion.  Government is supposed to stay out of the religion business.  And I think that 90 percent, if they understood the establishment clause and understood what the framers were trying to accomplish, they‘d all switch over to the other side. 

SCARBOROUGH:  Now, so you think you‘re going to prevail today? 

NEWDOW:  Yes. 

SCARBOROUGH:  You think they‘re going to find that you have standing? 

I know a lot of people were talking beforehand that you didn‘t have custody of your daughter when you filed the case.  Therefore, the Supreme Court may use that technicality to throw your case out. 

NEWDOW:  My daughter lives in my house 10 days a month.  I have custody and I have standing. 

SCARBOROUGH:  And you think the court bought into that argument today? 

NEWDOW:  Yes.  

There‘s two questions.  One, am I representing my daughter‘s rights, and, one, am I representing my rights?  And I was there today representing my rights.  And I‘m entitled to do that. 

SCARBOROUGH:  Jay Sekulow, you were there today.

JAY SEKULOW, CHIEF COUNSEL, AMERICAN CENTER FOR LAW AND JUSTICE:  Yes, sir.  Yes. 

SCARBOROUGH:  First of all, let‘s handicap Mr. Newdow.  Speaking for himself pro se, how did he do? 

SEKULOW:  I think he gets an A.  He did a very good job in his oral advocacy.  Any time you‘re before the Supreme Court—I talked to Michael before he did the case.  The three things I always remind myself, talk slow, be respectful and make sure the podium is at the right height.  He did more than that.  He did a very good job.  And I think the advocacy in the case overall was very good.

SCARBOROUGH:  So he‘s going to win today, right? 

SEKULOW:  I think he doesn‘t get one vote on the Pledge of Allegiance. 

(LAUGHTER)

SEKULOW:  You could win an argument.  And, Joe, I‘ve had them.  You have great arguments and you still don‘t carry the day. 

The standing question is close.  I don‘t think it‘s foreclosed either way.  He probably has prevailed on the standing issue.  The court seemed pretty closely divided on that.  But on the establishment clause, if you go by what each of the justices said about the phrase “under God,” from Justice Ginsburg to Justice Breyer, even Justice Souter and Justice Stevens, I think this could be one of those rare moments in the establishment clause in the church-state separation area where the court could be unanimous on.

(CROSSTALK)

SEKULOW:  But he did a good job arguing it, very good. 

SCARBOROUGH:  Jay, all of us sitting here have studied the law, know the law.  And the one thing that‘s surprising about this court is while they‘re always slammed by “The New York Times” and others for being a very conservative court, on issues of church and state, they are not conservative. 

SEKULOW:  Well, it‘s beyond that.  I mean, on issues of church and state, they have issued and decided cases that the end result have been confusing, contradictory, no matter which side you‘re on. 

To say that there‘s a clear standard in the establishment clause area of the Supreme Court of the United States is wrong.  They have said that about themselves.  So I‘m not talking out of school here.  They have acknowledged that their decisions are not always consistent.  For instance, Michael mentioned during his argument that no matter what of the many tests and the varieties of the tests that they would apply to determine church-state separation, that in his view “under God” would be unconstitutional. 

Now, you look at some of the decisions and you might be able to argue that, because some of their cases indicate that.  However, as this court is, one thing you could say, they may not be conservative, but they generally are practical.  And I think, practically speaking, what they‘re looking at is a decision of the court that‘s going to say, we‘ve looked at it. 

You know, the Pledge of Allegiance with the phrase “under God” simply reflects an acknowledgment of the religious history of our founding.  This is what the founding generation believed.  And we‘re going to allow that.  We‘re going to give that a pass.  Now, is that a giant constitutional principle they‘re going to establish?  Probably not. 

SCARBOROUGH:  You know, I think they‘re going to keep it muddy.

SEKULOW:  There will not be a clear standard, no.

SCARBOROUGH:  I don‘t think they have the guts to come out and make a strong decision.  I remember the Missouri decision on abortion, being absolutely shocked when they talked about public opinion polls. 

(CROSSTALK)

SEKULOW:  And to say that the court is not moved by public opinion, I think is...

SCARBOROUGH:  They are. 

SEKULOW:  They are.

Sure they are.  And even the way the case went today, when Michael was arguing and then the school board lawyers, there was a lot of deference given.  They did not talk an awful lot—and I think Michael would say the same thing—about their own precedents.  They were very light on case citations and a lot more on, well, gee, does this really harm anybody?

SCARBOROUGH:  Yes. 

SEKULOW:  And I think the fact of the matter is, when you make the decision, you may see very few case references, and they say, we‘re giving the pledge a pass.  I do think they will do that.

SCARBOROUGH:  Let me bring in Dr. D. James Kennedy of Coral Ridge Ministries. 

Dr. Kennedy, obviously, you‘ve been following this case very closely. 

What‘s your take on it today? 

DR. D. JAMES KENNEDY, CORAL RIDGE MINISTRIES:  Well, I certainly don‘t think that the principles would favor the idea that this should be removed. 

In fact, the very beginning of our country with a declaration that we hold these truth to be self-evident that all men are created equal and are endowed by their creator with certain inalienable rights certainly makes God the basis for all of our rights, including life, liberty and the pursuit of happiness. 

And once you were to have the court forbid the official mention of God, you would take away the basic foundation for our rights, and we would be in no better place than the communists and the Nazis were when they were told that the rights came from government who could give them or retract them at their will. 

And, therefore, I think it‘s—the principle is very clear.  In fact, the very day that the first Congress passed the final wording for the First Amendment, on that very day, that same Congress passed a motion to request George Washington to declare a day of Thanksgiving and prayer to almighty God.  Certainly, it wasn‘t their idea that there should be no official mention of God. 

SCARBOROUGH:  Well, Dr. Kennedy, you know, a lot of people, though, on the left or people taking Mr. Newdow‘s position would say, yes, but you never see the word God or faith mentioned in the actual Constitution of the United States or in the Bill of Rights.  What does that say to you? 

KENNEDY:  Well, I would say to that that it‘s very clear that it‘s mentioned a number of times in the Declaration of Independence that we have a creator who has created us with these inalienable rights.  As far as the Constitution is concerned, it does note that on the first day of the week that that is not a day that will count as a workday as far as vetoes are concerned. 

And, furthermore, they went to special effort to declare at the end of it, in the day of our lord 1789.  They could have simply said 1789 A.D. or simply 1789.  But they did that and they made it very clear that they were indicating this.  They also said that they were committing themselves and their future and all their wealth and property to this cause in humble reliance upon the providence. 

So I think there is a lot of indication that there is reference to God in both the Declaration and the Constitution and everything after that. 

SCARBOROUGH:  Michael Newdow, I‘ve seen books that are just packed with quotes from our founding fathers talking about the importance of God and faith. 

I mean, the first justice of the Supreme Court said, actually, that he thought only Christian men should be elected in the United States.  There obviously was a strong religious heritage in this country, right? 

NEWDOW:  There were a number of founders who were very religious.  I mean, they were also all white.  But we don‘t say that we should have a land only for whites.  They also were all men.  We don‘t say we should have a land only for men.

If they all believed in God—and I‘m not convinced they did, but even if they did, we shouldn‘t have a land that‘s just for people who believe in God.  We are supposed to look at the principles that they enunciated.  And they did it time and time again.  What they really said was freedom of conscience, and that‘s what you see all the time, freedom of conscience, freedom of conscience.

This idea in the year of our lord, then I guess we could have one nation under Jesus.  That would be OK with Dr. Kennedy, I‘m sure.  But it probably wouldn‘t be OK for the Jewish people and the Muslim people or the Buddhists are the atheists.  This is supposed to be the Constitution for everyone in the nation, not just for the people with one specific religious view. 

SEKULOW:  But the founding history doesn‘t show that our founding fathers were taking a position to say that this was one nation under Jesus. 

What they believed, which was very popular at the time—you have to understand the cultural context—was something that John Locke said, that rights and liberties and freedoms don‘t come from the king, because, if they come from the king, they can be taken away, that they are derived—these inalienable rights that are self-evident that founding fathers and the whole founding generation talked about were based on a relationship that God gives rights to mankind and that it‘s God‘s gift to mankind, not something government could take away.

So what does the pledge do?  It reflects that founding generation‘s understanding of the religious heritage of America.  It was not a denominational statement.  That‘s why it doesn‘t say under Jesus or any other reference.  It says “under God” because the statement was reflecting the founding generation‘s beliefs.  And that‘s basically what you have in the Pledge of Allegiance.  I think the court is going to say that 8-0. 

NEWDOW:  The Constitutional Convention took place in Philadelphia.  Eight of the 55 men were from Pennsylvania.  And the Pennsylvania Constitution at the time said that, I do believe in one God.  There was a part for an oath—I do believe in one God, the creator and governor of the universe.  Why didn‘t they put that into our federal Constitution?  Everybody knew about that.  Why is the Constitution completely devoid of any reference to God as far as anything?

In fact, the only thing with religion is Article 6, Clause 3, which says that no religious test shall ever be required as a qualification to any office or public trust under the United States.  The first act of Congress was their own oath, and the preliminary act that they came up with had two references to God.  They took them out. 

SEKULOW:  And then they sent missionaries to the Northwest Ordinance. 

(CROSSTALK)

NEWDOW:  But they took their own out—out of their own oath, they took out the words God.  But you think that they wanted kids at an impressionable age to be saying God.  And the idea that when you say “one nation under God,” 6-year-olds know...

SEKULOW:  I think the founding fathers would have been stunned that there be a constitutional crisis over two words, “under God,” contained in the pledge.

NEWDOW:  I think they would be stunned that Congress ever put it in to begin with.

(CROSSTALK)

SCARBOROUGH:  Dr. Kennedy, I‘ll give you the last word.  Why are these two words so important to you and so many Christians in America? 

SEKULOW:  Because it‘s historical.

KENNEDY:  Because all that we have in the way of liberties in this nation are based upon the belief that we have been created by a creator who has granted us inalienable rights. 

You take away that creator, you take away those inalienable rights, and then our rights come from government, and not from God, and they‘re easily taken away.  George Washington gave his first proclamation after being elected to the presidency in which he said in that that it is the duty of all nations to acknowledge the providence of almighty God.  So he was the president of the Constitutional Convention.  I think he very well knew what it said and what it meant. 

SCARBOROUGH:  All right, Dr. D. James Kennedy, thank you for being with us. 

Michael Newdow, good luck. 

NEWDOW:  Thank you. 

SCARBOROUGH:  Congratulations.  I‘m not on your side, but I certainly respect you going all the way to the Supreme Court to fight for what you believe in. 

Jay Sekulow...

SEKULOW:  Good to see you again.

SCARBOROUGH:  I am on your side.

SEKULOW:  There we go. 

(LAUGHTER)

SCARBOROUGH:  Thanks for being here. 

SEKULOW:  I hope the court is, too.  We‘ll see.

SCARBOROUGH:  I appreciate it.  But you never know. 

SEKULOW:  No.

SCARBOROUGH:  Next up, Kobe‘s accuser is forced to testify about her sex life in court today.  Should Bryant‘s defense be allowed to use her sexual history against her?  And is it going to scare other rape victims from coming forward?  Our legal panel debates that after this short break.

And another Hollywood actor joins the Bush-bashing club.  We‘re going to be talking about Ethan Hawke coming up next. 

(COMMERCIAL BREAK)

SCARBOROUGH:  The 19-year-old woman accusing Kobe Bryant of rape appeared in court today as a witness for Kobe‘s defense. 

Now, should rape victims be forced to give details about their sex lives?  Or does that scare rape victims from coming forward? 

We have Catherine Crier with us.  She‘s of course a former judge and a Court TV anchor.  And also Yale Galanter, who was a member of the O.J.  Simpson dream team. 

Catherine Crier, what do you make of the whole spectacle?  We‘ve got an NBA who is treated like a rock star around America?  We‘ve got this alleged rape victim coming in talking about her sexual background.  You‘ve got a high-powered defense team that‘s trying to hammer away at this lady and crush her credibility.  What‘s your take on the whole spectacle? 

CATHERINE CRIER, COURT TV:  Well, there are times—there are times it is appropriate that you bring in certain particulars about an accuser‘s past, and actually future as well, because there‘s some allegations that she may have had sexual contact within 15 hours after the alleged incident. 

But there are things that have set this into play, such as showing up at the rape crisis center or wherever she had this examination, turning over her underwear and finding the DNA of someone else there.  These make the questions that are being raised by the defense relevant.  How far back the judge will allow them to go or how much actually comes in before a jury is another question entirely. 

SCARBOROUGH:  You know, as we watch the accuser go into the courtroom, the reason she was being compelled to testify today was because, as you said, the defense is saying the woman had multiple sexual partners, and—that week, and that semen from someone other than Bryant was found in her underwear during a hospital exam after the alleged assault. 

Does that spell bad news for the defense—or for the prosecution? 

CRIER:  Well, I wouldn‘t like to see this if I was a prosecutor, because they also want to show that any bruising that might have occurred may have transpired in another sexual relationship.  Also, there‘s going to be inquiry into drug use and there‘s some question as to whether she‘s recently been in some sort of rehab.  Does that take you back to allow inquiry into the prior—quote—“suicide attempts” that have been reported?

All of this may be subject to this in camera inquiry.  Much of it, though, will never make it in front of a jury. 

SCARBOROUGH:  Yale Galanter, how does this woman respond to the fact that she had the semen of three men in her underwear when it comes to her credibility and basically labeling Kobe Bryant a rapist? 

YALE GALANTER, ATTORNEY FOR O.J. SIMPSON:  Well, she can‘t. 

I mean, the biggest problem the prosecutors have in this case is they‘ve got a complaining witness whose credibility is clearly an issue, the semen stains in her underwear, the bruising on her body, the sexual contact right before the alleged contact with Kobe Bryant, and even more significantly, the contact she had before she was examined by the police authorities and the rape treatment authorities clearly puts her credibility in issue. 

(CROSSTALK)

SCARBOROUGH:  Yale, give us a time frame on that.  When is the defense claiming she had sex with another man before Kobe and how soon after she had contact with Kobe? 

GALANTER:  OK.

The defense is claiming that within 15 hours after having the sexual encounter with Kobe Bryant, she had sex with another individual.  And that individual may have caused the bruising, tearing, or lacerations on this young woman‘s body.  They‘re also claiming that within 24 to 48 hours prior to the sexual contact with Kobe Bryant, she also had a sexual encounter with another.  Now, one of the things that judge is doing in this closed-door, no-media-present hearing today, is, he‘s going to examine the credibility of the complaining witness and determine through her answers and the cross-examination what is relevant and what is not relevant. 

CRIER:  And, Joe, be clear that that is not her story.  And, in fact, the judge admonished her lawyer for standing up in court earlier, saying there was no sexual encounter within the 15 hours after, only DNA of one man, but it wasn‘t Kobe Bryant in the underwear.  And the allegation is, a week to 10 days before the event, she had sex with a boyfriend that she broke up with. 

Within sort of that 48 hour period before the event, she may have had sex with the bellman, who actually was the first witness to hear her—quote—“outcry.”  And then, of course, there was Kobe Bryant.  So the judge has to try and sort all this out. 

SCARBOROUGH:  Catherine, why would she—we‘ve been seeing these pictures all day today of this young woman going into the courtroom today.  And I don‘t want to be naive about it, but why would this young woman make all of this stuff up if she knew she was going to be torn apart by Kobe Bryant‘s dream defense team? 

CRIER:  Well, that‘s a very good issue.  And, obviously, the prosecution will make that argument directly as well as indirectly, because you know the DA put her in an office, went through as much as he could find out about the background, although I‘m not sure he knew everything. 

SCARBOROUGH:  No, I don‘t think so. 

CRIER:  And said, honey, you better understand you are going to be front page, over the coals.  She‘s not asked for money at this point.  There is no settlement coming from this case. 

So unless she wants to try to get a conviction and then go after some sort of civil prosecution, I can‘t understand why she would—quote—

“make it up.”

SCARBOROUGH:  Yale Galanter, though, in the end, you can talk about when she had sexual contact before the encounter and with Kobe and after and talk about DNA, but, in the end, is it going to come down to whether the jury looks into this young woman‘s eyes and believes her, likes her as a person, and takes her story over the story of Kobe Bryant? 

GALANTER:  Joe, you‘re hitting the nail right on the head.  Her credibility, her demeanor in that courtroom, how she tells her story in front of this injury, how she holds up under cross-examination, her emotion, everything she says in that courtroom, is going to determine what they do when they go back in that jury room and determine his guilt or innocence, because, remember, with all the lawyering and all the going back and forth and all the DNA evidence, this is an issue of consent. 

And the only two people who know what really happened are the complaining witness and Kobe Bryant. 

SCARBOROUGH:  You‘re exactly right.  That‘s what makes it so fascinating. 

Catherine Crier, as always, thanks so much for being with us. 

CRIER:  Thanks, Joe. 

SCARBOROUGH:  And, Yale Galanter, we appreciate you coming back to SCARBOROUGH COUNTRY also. 

GALANTER:  Thank you. 

SCARBOROUGH:  And still to come, Israel kills their version of Osama bin Laden, and “The New York Times” and European editorial pages are outraged.  I‘ve got issues with the elite media coming up next. 

(COMMERCIAL BREAK)

SCARBOROUGH:  Tomorrow night in SCARBOROUGH COUNTRY, it‘s spring break season and your kids are out there on their own.  But who‘s watching over them while they‘re away?  The dangers of spring break tomorrow night.

(COMMERCIAL BREAK)

SCARBOROUGH:  Hey, I‘m Joe, and I‘ve got issues. 

First off, one of the most popular shows on TV, Fox‘s “American Idol,” is getting some heat today for an obscene gesture outspoken judge Simon Cowell made.  According to the Drudge Report, he was on an on-air argument with fellow judge Paula Abdul when he flipped his middle finger up and gave her the bird.  Now, the producers of the show apparently decided against editing it out.  Fox says flipping the middle finger goes against their decency standards, but we‘ll just have to see if the FCC decides to impose any kind of punishment for it. 

And you know what else?  I‘ve got another issue with all of this hypocritical criticism of Israel because they killed the leader of the terrorist group Hamas.  Think about it.  This guy was Israel‘s Osama bin Laden.  He killed women.  He killed children.  He killed senior citizens.  He killed innocents.  But instead of praising Israel for stamping out terror, “The New York Times” and others were wringing their hands about how awful it was that this terrorist was dead. 

I wonder how we would respond if France or other countries attacked us when we wiped Osama bin Laden off the face of the Earth.  I think we‘d be very angry.  And that‘s why I think it‘s so hypocritical for us to judge Israel in this instance. 

And in the battle for the White House, another actor has come out swinging against President Bush.  Ethan Hawke has bravely jumped on the Hollywood-hates-Bush bandwagon.  He apparently doesn‘t like President Bush because he put in a quick image of 9/11 in the campaign ads.  And Hawke said—quote—“It seems unnerving when somebody tries to use a tragedy for their own political gain.”

I‘ll tell you what‘s unnerving to me, when Hollywood stars think they‘re so important that the rest of America wants to follow their views in the area of politics.  I think they need to stick to acting. 

Now, coming up tomorrow night in SCARBOROUGH COUNTRY, three deaths in just a few weeks at one of the most popular spring break destinations in America.  Who‘s watching your children when they head south for spring break vacation? 

That‘s tomorrow night at 10:00 p.m. Eastern on SCARBOROUGH COUNTRY. 

END   

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