updated 5/2/2005 2:16:21 PM ET 2005-05-02T18:16:21

Guests: Kay Bailey Hutchison, Joseph Biden

CHRIS MATTHEWS, HOST:  President Bush faces the lions, using a rare press conference to take on the opposition. 

Let‘s play HARDBALL. 

Good evening, I‘m Chris Matthews.  And this is a special edition of HARDBALL.  In one hour from now, President Bush will hold his first prime-time news conference in a year.  He‘s expected to address his plans to change Social Security and also the rising cost of gasoline.  But he will no doubt field tough questions on the fight over John Bolton, his pick to be U.N. ambassador, and House Majority Leader Tom DeLay, who could soon face an ethics investigation. 

We begin with NBC News White House correspondent David Gregory. 

David, these press conferences are so rare.  Why one tonight? 

DAVID GREGORY, NBC WHITE HOUSE CORRESPONDENT:  Well, because the president feels, according to advisers I have spoken to today, that he has got to try to break out of the mess in Washington, that his message is having a very difficult time getting through because of the issues you talked about, the fight over filibusters and John Bolton and Tom DeLay and Social Security.  He wants a chance to speak directly to the American people, talk about ideas that are, frankly, not getting the kind of coverage he would like to see, because, frankly, the pope‘s death and other fights in Washington. 

It is a time of such political polarization that White House officials admit they are losing their political standing as a result and he has got to try to take it by the reins again. 

MATTHEWS:  Why is he opening with a statement on Social Security and gas prices, if he wants to focus on the hot issues of the day, which include the Bolton nomination, DeLay‘s problems, the faith in America issue and the sort of incivility we are seeing on Capitol Hill right now? 

GREGORY:  Well, I think that‘s an interesting point.  I think the answer is that he would like to focus on some of these hot-button issues that we are talking about. 

On Social Security, he wants to make some news tonight, Chris.  He is going to come out and try to move the ball along, move legislation along and lure Democrats into a negotiation by proposing the following idea.  He will talk about solvency, how to keep the program on fiscal sound footing, not just about private accounts, but changing the way the benefits are formulated, in effect, cutting benefits through what‘s called progressive indexation.  It sounds horrible, but it actually is how they are calculated. 

And it would mean, for wealthier Americans, their benefits would be slowed over time.  We are talking about future beneficiaries.  So, he is going to introduce that idea.  He has talked about it.  He has floated it as a trial balloon.  He is going to suggest it now in a detailed way and hope that Congress will take that and forge a compromise with it.

On energy, he wants to talk about some ideas for additional capacity, refining capacity, nuclear power, alternative sources of energy and empathize with the American people, who he knows full well are getting pretty upset about these high grass prices. 

MATTHEWS:  Let me ask you about the Bolton nomination.  Does the president feel that he has that one locked now, that he has enough votes on the floor to pass Bolton for U.N. ambassador? 

GREGORY:  No, I don‘t think so.  I think, right now, they are spending most of their time trying to work this quietly.  They are not budging at all.  And I think the president is willing to go head-to-head with Democrats on this. 

The fight, of course, is not just Democrats.  It‘s Republicans.  It‘s Lincoln Chafee.  It‘s Chuck Hagel and George Voinovich of Ohio, who said he had a kind of a crisis of conscience on this and wanted to ask more questions.  So, he realizes, the president does, that he has got work to do among Republicans.  That work is going on.  It‘s going on pretty aggressively, but they are trying to keep it quiet right now. 

MATTHEWS:  Thank you, David Gregory, at the White House. 

Next, we turn to NBC News chief foreign affairs correspondent Andrea Mitchell.  We also have MSNBC Joe Scarborough, host of “SCARBOROUGH COUNTRY,” and “Newsweek”‘s Howard Fineman. 

Andrea, I was asking David Gregory at the White House about the fortunes of John Bolton, the U.N. ambassador-designate.  Do you believe that the president feels he has this one under control? 

ANDREA MITCHELL, NBC CHIEF FOREIGN AFFAIRS CORRESPONDENT:  I think they are much more hopeful than they had been. 

In fact, Dick Lugar, the Foreign Relations chairman, is expressing considerable confidence that they do have it under control, because they have come up with a strategy where they will try to force the Republicans who have been wavering or against Bolton to at least permit a neutral vote, not go up against the president twice, and let it get out on the floor. 

And, on the floor, they have a bigger advantage.  They have got 55 Republicans and they also have, of course, their own other option, Dick Cheney, to break any kind of tie. 

MATTHEWS:  Do they know what‘s in the bag in terms of future accusations made by other sort of foreign service, civil servants against the nominee? 

MITCHELL:  That‘s the big problem.  They don‘t know what the universe of accusations could be.  And, of course, Bolton‘s opponents are reaching out.  They have already booked two dozen witnesses to come in or talk by phone and testify to his alleged improper behavior, abusive behavior, twisting of intelligence.  That‘s the accusations. 

He, of course, has strongly denied all of that.  And they are focusing more on the intelligence issues than on this personal behavior, because they think that the president can rightly argue that you need someone who‘s tough to be at the U.N.  They want to focus on intelligence because of this recent record, of course, over the last few years, where intelligence was clearly twisted in advance of the war in Iraq. 

And they are going to say, if you guys, you Republicans, want to vote for someone who has already been accused of tainting intelligence in this day and age, well, then that‘s your risk.  We will let you live with that. 

MATTHEWS:  Stay with us, Andrea.

MITCHELL:  Sure.

MATTHEWS:  Let‘s go to Howard Fineman and let‘s go around the horn, as they say in baseball, this being a baseball town now. 

Let me ask you about the question of the filibuster issue.  It‘s a hot issue because it affects the environment.  It affects abortion rights, all kinds of rights in this country.  What kind of judges do we want?  Let me ask you this.  Does the president have that one under control?  Is he going to force through an end to the filibuster in judicial nominations? 

HOWARD FINEMAN, NBC CHIEF POLITICAL CORRESPONDENT:  Well, he does not necessarily have it under control.  And he doesn‘t want to claim credit for trying. 

He says this is the Senate‘s issue, not mine.  But, of course, that‘s not really true.  These are his nominations to the bench.  And he is going to probably be asked tonight at the press conference to say whether he is aligned with the religious conservatives who say that anybody who supports the old filibuster rule is against people of faith.  Bill Frist lined up with them by taking part in that big religious ceremony last week.  Does George Bush agree with that?  That‘s one question he is going to asked.

He is going to have to have an answer about where he is on people of faith and the filibuster. 

MATTHEWS:  Joe Scarborough, why don‘t you take a shot at all three of those, Joe, starting with the Bolton nomination and the filibuster issue and then Tom DeLay and how all three of them are facing the world right now going into this press conference.

JOE SCARBOROUGH, HOST, “SCARBOROUGH COUNTRY”:  Yes. 

Well, I will tell what.  First of all, John Bolton and Tom DeLay, they are distractions, as far as the White House is concerned.  The big issue, of course, Social Security.  As we said before, when the president was being inaugurated, you know, I was talking to Republicans back then who said it was dead on arrival.  We had Bill Thomas, the heads of Ways and Means Committee, saying it‘s dead on arrival.  It‘s still dead on arrival. 

So, when he talks about going out there and figuring out a way to cut benefits, he knows and Karl Rove knows Republicans will not follow him off that cliff.  They don‘t want them to follow him off the cliff, because they don‘t want the Democrats to have the United States Senate for the last two years.  That means they have the power of subpoena.  They have the power of investigation.  I think that‘s a red herring. 

This is about energy.  It is about the president getting in front of the American people again.  And, you know, he made a gaffe last week.  It sounded like—almost like the coach of Jimmy Carter, saying, well, you know, gas prices are going up, but we can‘t really do anything about that. 

MATTHEWS:  Yes.  I know.

SCARBOROUGH:  Tonight is when he comes out.  That it is so un-George Bush to say, you know, we are helpless.  Karl Rove understands that. 

Tonight, you are going to have George Bush talking energy, talking gas prices, and how we drive them down.  He is going to be talking about ANWR.  You talk about the filibuster.  Today, in “The Washington Post,” you had Pete Domenici, who is supposed to be driving the energy bill in the Senate, saying, we don‘t have enough votes for drilling in Alaska if this comes down to a filibuster issue, which he predicts it will. 

This is going to be George Bush, the campaigner who came out against John Kerry, the guy who‘s been passive for the past few months.  And, listen, they know, Social Security is not going to pass.  Tonight is not about Social Security.  It‘s about energy.  It‘s about drilling in Alaska.  It‘s about saying, hey, you know what?  Gas prices are high, but we are in charge. 

MATTHEWS:  That‘s a good question. 

Let me go back to Andrea Mitchell.  Of course, the president can give a great speech tonight and make a number of proposals with regard to ANWR, developing the Alaska wilderness and all kinds of things on new energy sources, even, which he is unlikely to do.  But can he in any way, preemptively, like he did with the war, go after gas prices worldwide?  Can he reduce the worldwide cost of gas? 

MITCHELL:  Absolutely not.  It is a situation which is beyond his control.  But he can play politics with this.  He can say that it‘s the Democrats and their refusal for four years to go along with his energy plan to fix the problem that has caused these higher gas prices and make that linkage. 

And it could be quite persuasive to the American people.  But there is no president who can—even if he were to use the Strategic Petroleum Reserve, there is no way to do that.  He can propose, as he had this week, building new refineries on—on, you know, military bases.  That won‘t be done for years.  It takes decades to get those things online.  So, none of this will have any impact in the short term and none of it will have any impact none on prices. 

(CROSSTALK)

MATTHEWS:  Howard, it takes two steps to buy gas now.  You have got to go to the ATM machine first and then go to the gas pump, as everybody—as Joe knows and Andrea knows.

(CROSSTALK)

(LAUGHTER)

MATTHEWS:  It costs—the other night, it was almost $40 to fill my tank.  Serious business here. 

FINEMAN:  I think—yes, and I think Joe is absolutely right about what‘s at the heart of this press conference. 

I asked Dan Bartlett, the White House communication director, just a few minutes ago, what do you hope to get out of this press conference?  What do you want to accomplish?  And he said, we want to accomplish the fact that the American people need to know that George Bush gets it on gas prices, that he doesn‘t just drive the pickup truck around the ranch.

MATTHEWS:  Right. 

FINEMAN:  That he knows how much the gasoline costs that goes in the pickup truck, because any presidency is an ongoing campaign.  And that means you can‘t lose touch with the American people.  You can‘t get lost in...

MATTHEWS:  Is he risking putting his face on that gas pump by doing this? 

(CROSSTALK)

FINEMAN:  His face was already on the gas pump.

MATTHEWS:  I remember—Joe was mentioning Jimmy Carter.  Jimmy Carter once named Bob Strauss head of inflation in the White House. 

(LAUGHTER)

MATTHEWS:  He brought the issue of inflation right into the White House.

SCARBOROUGH:  Oh, that‘s..

FINEMAN:  But when you‘re president—when you‘re president, you can‘t avoid it.  It‘s a constant campaign and you can‘t lose touch with the everyday concerns of the American people or be seen as losing touch with them. 

MATTHEWS:  Right. 

FINEMAN:  Because,if you do, you‘re a prisoner inside the beltway. 

MITCHELL:  Hey, Chris?

FINEMAN:  That‘s what he‘s trying to avoid have happening here.

MATTHEWS:  Andrea?

SCARBOROUGH:  Well, and I‘ll tell you what.

MITCHELL:  Chris, don‘t forget that picture that was around the world this week of the president holding the hand of the Saudi leader, Crown Prince Abdullah.  Now, it was a mark of respect and it was not anything that you would not expect for an 81-year-old man to be helped over a gravel pathway there. 

MATTHEWS:  Right. 

MITCHELL:  But that image seemed to be putting George Bush and the Saudis, the oil barons, in the same frame.  And it was a very, very negative picture for those who are concerned about gas prices. 

(CROSSTALK)

MATTHEWS:  Also, for Osama bin Laden, I would expect, too—I‘m sure he likes that hand-holding as well from the other end of the world. 

When we come back, we‘re going to be doing—talking about the vetting at the White House.  Are they really checking out these people?  First, it was Bernard Kerik, now John Bolton.  We‘ll get the latest on the Bolton fight with Andrea Mitchell when we return.

You‘re watching a special edition of HARDBALL, as we await the president‘s news conference, right here on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  We‘re waiting for President Bush to hold his first news conference of the year in just 45 minutes from now.  And when we come back, how damaging to the president is the fight over his pick for U.N.  ambassador, John Bolton?

Our special edition of HARDBALL returns after this.

(COMMERCIAL BREAK)

(NEWS BREAK)

MATTHEWS:  Welcome back.

John Bolton is being slow-roasted, as his nomination for U.N.  ambassador to the U.N. stretches on. 

NBC News chief foreign affairs correspondent Andrea Mitchell joins us now on the White House effort to turn down that heat. 

Andrea, what‘s the game plan to get this guy approved?

MITCHELL:  The game plan is to turn this into a debate of, do you want John Bolton or do you want Kofi Annan? 

You know, do you want John Bolton, who is tough and who can get this U.N. reformed and cleaned up, or do you want a continuation of the morass at the U.N.?  That is the way they, at least, in the White House are trying to frame the debate and put any of his critics on the defensive, that, if they support the critics of John Bolton, that means that you‘re just supporting more weakness at the U.N.

Well, obviously, there are plenty of Democrats and even some Republicans who say that that is not the argument, that Bolton in fact is not an effective performer at the U.N. because he does not have credibility on the key issues, the key issues of Iran, North Korea and what their weapons capability might be, because, in the past, he‘s been proved to have been someone who hyped intelligence, the last thing that you would want after the debacle of Iraq. 

But that is not the way the White House plans to frame it.  And they think, if they can peel off enough Republicans and at least get it to the floor, then they can have a fair shot of getting him approved, barring any further damaging testimony from future witnesses. 

MATTHEWS:  So, the game plan is to focus on him as sort of a super hall monitor.

MITCHELL:  Right. 

MATTHEWS:  Who will go to the U.N. and shape up those people, and to hope the senators, who are paid to do so, will gradually forget about the questions about intelligence.

MITCHELL:  Exactly. 

And, you know, when you‘re talking about pressure and intelligence, everything is subjective.  So, they‘re going to say, look, these are just disgruntled people who used to work with him.  Now, it‘s a little harder to get around the fact that everybody in town knows Colin Powell was one of the people voicing concerns about him to his close friend Chuck Hagel and to others whom he trusted on the Hill. 

MATTHEWS:  OK, thank you very much, Andrea Mitchell.  We will check back with you later in the evening. 

MITCHELL:  OK.

MATTHEWS:  NBC News White House correspondent Norah O‘Donnell is with us now.  And Joe Scarborough and Howard Fineman are still with us. 

Norah, your perspective on the press conference.  It is kind of an interesting thing when a president, after all these months, a year, basically, says, I am going to have the fourth press conference in prime time in my entire presidency. 

NORAH O‘DONNELL, NBC CORRESPONDENT:  Well, the reason the president is doing this is because the White House realizes they are reaching an important phase. 

We are reaching the first 100 days of the president‘s second term.  The 60-day push for Social Security is over.  The president walked into the second term saying, I earned political capital in this campaign and I intend to spend it.  Well, he‘s been trying to spend it for the past 100 days.  And so far, the polls show that he is at his lowest approval rating.

So, this is an opportunity for the president to come before the American people in prime time and make his case directly to the American people, not only about Social Security, but also about energy prices.  And, certainly, I think he will also in his opening statement talk about some of the political success that‘s happening with the new transitional government in Iraq. 

But, clearly, this is a White House that believes that when the president is out there front and center, his numbers will go up.  And they realize they have taken a couple hits over the past couple of weeks. 

MATTHEWS:  Well, is there a risk—I mentioned it before with the others—is there a risk that the president will identify himself personally with public anger over gasoline prices? 

O‘DONNELL:  I think that this president recognizes that the worst thing he could do is seen as not be doing anything. 

He already came out and set the bar pretty low by saying, but, hey, by the way, I can‘t do anything.  There‘s no magic wand.  But he has to show empathy.  And that‘s the goal of the White House.  He‘s been proposing things.  He‘s been knocking heads saying, Congress has got to get this done.  And he wants to come forward and say, I‘m trying to work on this and propose some things for the long term. 

But this White House and certainly the president‘s former political pollster, Matthew Dowd, who we got to know during the campaign, has said that gas prices are the reason for the president‘s decline in his approval ratings.  It‘s an issue that is at the top of Americans‘ minds.  Everybody understands it, as you said it.  And so this president has got to come forward and say something.  The question is whether the American people say, well, we want you to do something now. 

And that may be—we will see at the end of the night whether they are pleased with what he says. 

MATTHEWS:  And I guess they are going to have to wait a couple of weeks and look at the gas pump and see if anything happens to those numbers. 

(LAUGHTER)

O‘DONNELL:  Right. 

MATTHEWS:  I was just saying—I don‘t know about you, Norah, but I was just—we all buy gas here in Washington.  It‘s almost $40 to fill the tank now.  It‘s a different world. 

When we come back, a look at what questions President Bush wants to be asked tonight and the questions he would probably rather not be asked.    

You‘re watching a special edition of HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  Tonight‘s news conference is only the fourth one President Bush has given in prime time during his entire presidency.  These events tend to be shaped by latest news.  But both the president and the press corps often bring diverging agendas.  And they have, after all, an adversarial relationship. 

With a preview of what the White House is looking for tonight and hoping to avoid, here‘s HARDBALL correspondent David Shuster. 

(BEGIN VIDEOTAPE)

DAVID SHUSTER, NBC CORRESPONDENT (voice-over):  While White House officials say the president wants to focus on his Social Security and energy policies, officials also anticipate questions about Iraq, the face-off over judicial nominations, John Bolton‘s nomination as U.N. ambassador and the ethics of House Majority Leader Tom DeLay. 

On each of these, the president and the press corps expect to tangle over how the questions and issues are framed. 

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  I believe the job of a president is to confront problems, not pass them on to future presidents or future generations.  And I see a problem in Social Security. 

SHUSTER:  Polls show, however, that a majority of the public sees a problem in the president‘s solution.  And given that Mr. Bush has traveled to 23 states to sell privatization, the president will face tough questions about changing his proposal. 

On energy policies, the president wants to pressure lawmakers to act on a plan he introduced four years ago and has brought up again. 

BUSH:  And now it‘s time for the Congress to pass the legislation necessary for this country to become less dependent on foreign sources of energy. 

SHUSTER:  But Mr. Bush‘s plan would do nothing in the short term to bring down gas prices.  And that question could be tricky.  In Iraq, the number of attacks on U.S. soldiers is up, but the Iraqi government today approved a cabinet, a major step towards stability. 

On the Senate deadlock over judicial nominations:

BUSH:  Every judicial nominee deserves an up-or-down vote. 

SHUSTER:  But the Senate has given votes to more than 95 percent of the White House picks and polls are against the president in his Senate filibuster fight, because two-thirds of the public does not want a change in Senate rules. 

White House officials have made charges of Democratic obstructionism in the delayed confirmation of John Bolton as U.N. ambassador.  The questions, though, may be about the concerns of a few key wavering Republicans.  The wild card issues tonight could include North Korea‘s nuclear program, U.S. relations with Saudi Arabia, and Wall Street worries over the U.S. debt. 

And, in addition to the substantive questions, there are almost always stylistic ones.  During his last prime-time news conference, this question and answer gave some White House officials hard burn. 

QUESTION:  What would your biggest mistake be, would you say, and what lessons have you learned from it? 

BUSH:  You know, I just—I‘m sure something will pop into my head here in the midst of this press conference, with all of the pressure of trying to come up with an answer.  But it hasn‘t yet. 

SHUSTER (on camera):  While the president‘s supporters acknowledge his performance have at times been uneven, the pressure they say is now different.  President Bush is not campaigning for reelection, just passage of his policy proposals.  And, by the numbers, this solo news conference will be his 18th since taking office. 

I‘m David Shuster for HARDBALL in Washington. 

(END VIDEOTAPE)

MATTHEWS:  Thank you, David Shuster. 

When we return, we will get the Democratic agenda from Senator Joe Biden. 

You‘re watching a special edition of HARDBALL on MSNBC, as we await the president‘s news conference about a half-hour from now.

(COMMERCIAL BREAK)

(NEWS BREAK)

MATTHEWS:  Welcome back to HARDBALL. 

This afternoon, Senate Majority leader Bill Frist offered Democrats 100 hours of debate on President Bush‘s judicial nominees, including those future nominees for the Supreme Court, if they agreed on an up-and-down vote on each nominee. 

Democrats have so far not agreed to this proposal.  And earlier today, I asked Democratic Senator Joe Biden of the Judiciary Committee what he makes of the offer. 

(BEGIN VIDEOTAPE)

SEN. JOSEPH BIDEN (D), DELAWARE:  It‘s ridiculous. 

Look, this whole thing underscores they don‘t understand the Senate. 

Up until 1947, there wasn‘t—you needed a unanimous consent.  From the

time of the Constitution to 1947, you needed unanimous consent in order to

get a judge through.  They changed the rule in 1917 to say you could have -

·         three-fifths of the senators could vote to cut off debate on legislation, but they said but not for nominees, because the founders never intended that. 

This is all about the independence of the judiciary.  When you go to the point where you can have 51 senators make a decision on every single—imagine if that rule had been in place when Roosevelt tried to pack the court.  What would have happened? 

MATTHEWS:  He would have done it. 

(CROSSTALK)

BIDEN:  You‘re darn right he would have done it.  This is time for a couple people of little—as Hamilton said, a moral rectitude to stand up in the Senate and understand the institution.  This is not the House of Representatives, as noble as it is. 

It was intended to be a totally different institution.  They‘re about to make this a parliament.  They‘re about to make this the president, the prime minister.  And these guys on his side act as if they work for him.  They are independent equals. 

MATTHEWS:  Should the vice president have engaged himself in this debate? 

BIDEN:  Well, he‘s entitled to.  I mean, I don‘t... 

(CROSSTALK)

MATTHEWS:  I mean as your sense of division of powers. 

BIDEN:  Yes.  No, no, he‘s the president of the Senate.  I think it is not inappropriate for him to talk about the rules of the Senate.  No, I think that‘s fine.  I mean, he‘s wrong.  But I think it‘s fine.

MATTHEWS:  How about the president getting involved?  He‘s not a member of the legislature.

BIDEN:  Well, the president getting involved, he has a right to, but it crosses, it trenches upon the powers of separation. 

What everybody kind of forgets is, there was a specific reason why they said, let the Senate dispose of all nominees.  The president can propose.  The Senate disposes.  During those debates on the Constitution, there was no one single time where more than, I think, three votes for allowing the president even in on the deal.  The only reason it got to the end was, this is about, look, this is not about equality. 

This is about every state, every state having the same power as every other state.  If you go by majority vote up there, what people don‘t realize is, there are 54 Republican senators.  We 46 Democrats represent more of people in America than the 54 of them.  You want to do this by majority rule, popular will?  That‘s not what the Senate is about. 

MATTHEWS:  So you‘re against this proposal of 100 hours? 

BIDEN:  Absolutely, positively. 

MATTHEWS:  And you answer is—why are you against 100 hours?  Isn‘t that enough to debate?

BIDEN:  I‘m against the 100 hours because it is not enough for debate.  If the Senate wants to block extreme—even if they‘re not extreme.  If 40 senators want to block anybody for nomination, they have the right to do that.  And the reason they have the right to do that, it‘s the one bulwark against pure majoritarianism. 

MATTHEWS:  I want to run through just a couple of these nominees. 

BIDEN:  Sure.

MATTHEWS:  What is your objection to Bill Pryor? 

BIDEN:  Bill Pryor, as well as the senator—as the nominee from California and others, they believe in changing a thing called the Takings Clause of the Fifth Amendment.  That means that, if you‘re going to have a zoning law, the only way can you prevent somebody from building a factory in your neighborhood is pay them, because you‘re depriving them of the property. 

They believe in this thing called a nondelegation doctrine, meaning we, Congress, couldn‘t delegate to the EPA to set the standard for what constitutes clean water.  We would have to set that standard.  We couldn‘t delegate to the federal Drug Administration, what drugs could and could not be put on the market.  We would have to cast literally 10,000 votes.  And what this means is a giant shift of power from the people to the powerful. 

You eliminate regulatory agencies.  And if you think I‘m exaggerating, pump up the Web site of the AEI.  Pump up the Web site of the Cato Institute.  Read the dissent of Justice Scalia in Morrison (ph).  I mean, these guys mean it.  They are for real.  They are bright, very serious people.  But they talk about this thing called a Constitution in exile. 

They believe that the nondelegation doctrine, the 11th Amendment, the 10th Amendment, the Takings Clause, have been misread for last 50 years.  If we read it the way they want to read it, we go back literally, not figuratively, to pre-‘20.  Go look at the Chicago School of Law and Economics, some of the brightest people in the country.  They think that the whole Social Security system is unconstitutional.  This is what these guys think.

MATTHEWS:  But doesn‘t the Supreme Court have the opportunity to overrule these appellate judges?  Why do you fear appellate judges? 

BIDEN:  Two reasons. 

One, when I—when you and I first came to this town, the Supreme Court took four, five times as many cases as they now take.  Now they take 80 cases or something like that.  Guess what?  The last stop on the constitutional trial on de novo issues of constitutional reconsideration happens to be the Circuit Court of Appeals.  They are in a much different position. 

MATTHEWS:  Let me ask you how this could be the end game.  And you‘re the expert on the institution.  You have been there since ‘73 in the United States Senate.  You love the place, obviously. 

Is there a possibility that we might find ourselves with a decision made by the Senate 50-50, 50 Republicans for, 50 Democrats against, on the issue of the so-called nuclear option, getting rid of the filibuster rule with regard to court appointments, with the vice president being the tiebreaker?  Do you think the Republicans are willing to cut it that narrowly?

BIDEN:  I don‘t know.  I hope they are wiser than that.  I hope they don‘t listen to interest groups.  I hope they have enough courage to do what they know—you know, Barry Goldwater used to always say, you know, in his heart, they know he‘s right. 

MATTHEWS:  Right. 

BIDEN:  In their heart, they know this is not the thing to do.  This is a fundamental change in our constitutional system that exceeds the issue of judges.  And it is dangerous.  We are not a parliament.  We were never intended to be.  The states were intended to be equal.  This will change that dynamic, not just for judges, but across the board. 

MATTHEWS:  Where is this coming from?  Is it coming from the interest groups, from the Republicans in the Senate, this push to get rid of the filibuster, this—what you call this strong effort, or is it coming from the White House? 

BIDEN:  I think it‘s coming from the White House.  I don‘t know.  The honest answer is, I don‘t know. 

But I think it‘s coming from, it appears, from a distance.  Just the plain old politics in me says that the Faustian bargain made with the Christian right—and not all Christians are right and not all right Christians are Republicans.

MATTHEWS:  Right. 

BIDEN:  But the Dobsons of the world was, we get to call the shots on judges. 

MATTHEWS:  Is this a preliminary to the fight over the Supreme Court if Rehnquist steps down? 

BIDEN:  Absolutely.  Absolutely, positively, it is.  And, again, you‘re talking about, read what they are saying.  Read what these guys write.  I remember being on your show three years ago.  And we talked about the neoconservatives on foreign policy.

MATTHEWS:  Right. 

BIDEN:  Bright, honorable, patriotic people.  And I said they‘re talking about leveraging power.  You had read what they wrote, but everybody else kind of wrote to me and said, you‘re kidding.  These guys don‘t mean that.

Well, guess what?  Read what the scholars on the right are writing. 

They want to change the Constitution.

MATTHEWS:  OK, the tough question for you.  When this is all over, the people will still say, not just conservatives, it seems to me that the president of the United States goes and picks a person he wants to see, an appellate court judge, a federal court judge.  You guys on the Hill take it upon yourself, the right, to say, not only will we not approve him.  We won‘t bother doing anything with him.  We will just sit on that nomination. 

And you believe that‘s the constitutional right of the United States Senate, to do that? 

BIDEN:  Absolutely; 24 Supreme Court justices were rejected; 14 didn‘t get a vote.  Hear me?  Fourteen never even got a vote. 

Guess who led the filibuster against Abe Fortas and defeated him by a filibuster?  An honorable Republican named Griffin who became the minority leader from the state of Michigan.  Look who stood up to Roosevelt.  It was Democrats in the Senate who stood up and said, whoa.

This idea that the president gets, is entitled to who he wants on the

court is the most bogus argument in American, modern American history.  It

was never, never, never intended that.  The reason why the founders said

the president would dispose—and the Senate should dispose is—was, we

·         all senators couldn‘t come together on a single person.  A single man can pick a single person more easily.  But then it‘s up to the senators to dispose of whether or not that person is the right person. 

And this is just a bogus notion.  And this president is not—look, 215 people he sent us, we passed through 205, and we are being obstructionists? 

MATTHEWS:  OK.  Senator Joe Biden, thank you, sir.

(CROSSTALK)

(END VIDEOTAPE)

MATTHEWS:  Senate Foreign Relations Committee and Judiciary Committee, been around a long time, loves the Senate. 

We will be back with more HARDBALL in just a moment.

(COMMERCIAL BREAK)

MATTHEWS:  Coming up, President Bush will hold his first news conference of his second term at the top of the hour.  We‘ll get a preview of what to expect from Texas Senator Kay Bailey Hutchison.

This special edition of HARDBALL returns in a moment.

(COMMERCIAL BREAK)

(NEWS BREAK)

MATTHEWS:  Welcome back to HARDBALL.  We are about 15 minutes now away from the start of the president‘s news conference.  He is expected to outline specific ways to keep Social Security solvent. 

But he‘s sure to be asked about the showdown over ending judicial filibusters, the battle over John Bolton‘s confirmation as ambassador to the United Nations and a looming ethics probe of House Majority Leader Tom DeLay. 

Republican Senator Kay Bailey Hutchison is from Texas. 

Thank you, Senator. 

Tonight, the president has to talk about things he wants to talk about and shift away from others.  What do you think he most want to talk about tonight? 

SEN. KAY BAILEY HUTCHISON ®, TEXAS:  Social Security and energy.  I think he is really serious about trying to inform the American people that we are headed for a crisis and we need to do something, and he wants to do the right thing as the leader of our country. 

Energy, same way.  He believes that we are going to have an energy crisis in America if we don‘t pass an energy policy that allows for more exploration, more drilling, more conservation, more solar power, more wind energy, more renewables and more creativity. 

MATTHEWS:  Do you believe that the Democrats are going to respond positively to developing in Alaska and all of the other things they have always opposed? 

HUTCHISON:  I think that ANWR in Alaska, I do believe that there‘s a clear majority for that.  And the more people understand it, that it‘s not a pristine wilderness, that it is a very smart part, I think many people have not realized the new technologies that allow you to drill out from one spot, so you‘re not putting oil wells all over the field.  You‘re putting one oil well and you‘re going out for as much as a mile to drill. 

And I think, with the new technology, you‘re not going to harm the land.  There will barely be a footprint. 

MATTHEWS:  You‘re from Texas, the oil state.  Are we ever going to see cheap gas again?  With the Chinese challenging us for oil consumption, with the reserves being challenged themselves, the amount of oil being limited obviously by all this competition, are we facing a future of higher gas prices? 

HUTCHISON:  Well, you have hit it right on the head.  With China and India becoming so much more consuming and their economies are growing, that‘s what‘s really putting the pressure on energy. 

But, yes, I don‘t think we will ever go back to 99-cent-a-gallon gas.  But I do think that, with the proliferation of energy sources, that we—and with the smaller cars and the cars that are going to be able to be hybrids, that, yes, we will see gas prices come way down, and you will see a lot of alternatives if we can pass the policies that encourage that. 

MATTHEWS:  Do you think the American people will ever get used to small cars, like Europeans, those little smart cars that look like half cars?  Will we ever drive them and be happy? 

HUTCHISON:  Maybe in the long term.  But we have so much longer distances.  We have big trucks on our highways.  We have a lot of farms with pickup trucks.  It‘s just a different type of society than Europe. 

MATTHEWS:  Right. 

HUTCHISON:  So, I don‘t know that we are ever going to get to the place they are.  But I think we are going to be more fuel-efficient conscious and I think there will be much more, in our urban areas, the use of alternative type cars. 

MATTHEWS:  Let‘s talk about Social Security. 

If you want the program to last, you have to cut the cost of the program or increase the revenues going into the program.  How does the president do either of those? 

HUTCHISON:  Well, I think the president does not want tax increases.  I think he is going to be looking at other ways, for instance, adjusting the cost of living for maybe higher-income people, which has been suggest bid Bob Bennett.  That‘s one way that can make a difference. 

MATTHEWS:  Means testing.  Means testing is very dangerous. 

HUTCHISON:  It‘s means testing only on cost-of-living adjustments at a lower level.  It‘s saying the wage increase would be for lower-income people, but for the higher-income people, it would be a cost-of-living adjustment. 

MATTHEWS:  Do you know anybody named Paula Hawkins, former Senator from Florida, Republican, lost because of the president‘s tampering with the COLA, cost of living adjustment.  Jeremiah Denton of Alabama; 10 Republican Senators lost, I believe, in 1986, when President Reagan tried to cut down the growth of the cost-of-living adjustment.  It‘s a dangerous area, isn‘t it? 

HUTCHISON:  Well, I think it‘s a little different, because there is a means test there. 

But that‘s—you said, what are some of the ways.  I think that one is one that will be on the table that is much less painful than if we go to 2042 and, as the law is today, you would see a benefit cut of approximately 25 percent.  Now, that‘s drastic.  That‘s a crisis.  And the president is trying to avoid that.

MATTHEWS:  Would you support a lower COLA growth for wealthier people? 

HUTCHISON:  I would look at that as the least bad alternative.  I will not support tax increases of any kind.  I will not support a rise in the cap.  I think that is wrong. 

I think that the rise in the age is another thing that can be looked at, the age of retirement, with incentives, perhaps, to allow people to retire later with incentives, bonuses.  I think you can do some creative market-based things that can make a difference. 

MATTHEWS:  What about the president—talk that the president might tonight—we will know in an hour—in fact, will know in a few minutes, whether the president is going to actually call for a change in the basis of cost-of-living adjustments and saying that, instead of it being based upon wages, as it currently is, it will be based upon prices, which means a lower adjustment, less of an increase in Social Security benefits over time, big losses over time to retirees?  How due support something like that politically? 

HUTCHISON:  Well, I think, again, that‘s what we have been talking about.  I think can you perhaps—and I‘m not saying this is the answer.  Maybe we can have other things that are more creative, market-based with incentives. 

But I do think that, if you‘re looking at just the top tier, maybe even the top 1 percent, that is a different—it is still a cost-of-living increase, but a little smaller than everybody else.  That‘s what Senator Bennett has suggested.  And I think it has some real potential. 

MATTHEWS:  Do you believe Tom DeLay is out of the wilderness yet in terms of ethics investigation or is he just entering it now with the new decision by the House leadership to allow an easier standard to get these ethics investigations under way?

HUTCHISON:  Well, I think that everyone has agreed that the investigation should go forward.  And now I think is the time for people to stop talking and let the committee do its work. 

MATTHEWS:  Start digging. 

(LAUGHTER)

MATTHEWS:  Thank you, Senator Kay Bailey Hutchison of Texas. 

We are about 10 minutes away right now from the president‘s news conference.  Our live coverage continues in a moment right here on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  We‘re just a few minutes now away from the top of the hour and President Bush‘s news conference.  We‘ll have live coverage of the news conference.  And then we‘ll be back here for a special edition of HARDBALL live at 11:00 p.m. Eastern time tonight. 

We‘re joined now by MSNBC News White House correspondent Norah O‘Donnell, “Newsweek”‘s Howard Fineman. 

But we begin with MSNBC‘s Joe Scarborough. 

Joe, politically, what is the president‘s challenge tonight? 

SCARBOROUGH:  His biggest challenge is, again, overcoming what he said last week, when he said, you know what?  Gas prices are high.  I can‘t do anything about it.  I love how they‘ve led with Social Security.  That‘s what everybody has been writing about today. 

You know what?  You can have every senator from Capitol Hill come on your program and tell you they‘re going to support means testing.  They will never support means testing.  They will never support a hike in Social Security taxes.  Social Security is dead.  The president knows it.  Karl Rove knows it.  Their program is a nonstarter for Republicans who want to get reelected next year.  This is all about energy. 

MATTHEWS:  You know, Howard, I‘ve always suspected—and Joe has just said it well—that the press, in its unusual fashion this semester of politics, has been very nice to the president and has suggested that his program really does have a chance of passage.  In a weird way, by not criticizing and saying dead on arrival, the press has kept this program alive. 

FINEMAN:  Yes, they have.  But I think there‘s a sense here right now that the president is poised between dominating Washington still and sort of retreating into the Alamo, because, on everything from judges to John Bolton to the question of the filibuster to energy crises and the economy, there‘s a sense here that there‘s a little slowing of the momentum. 

Even though he controls everything, ironically, he doesn‘t control all of his own party.  Where he has problems right now is with the parts of his own party that aren‘t ready to go along with what he wants to do, whether it‘s on Bolton or judges or taxes or anything. 

MATTHEWS:  Norah, do you think one of the president‘s prime goals tonight is not to sell the country, but to move a number of senators in the United States senator to back into the coral on the issues of Bolton‘s nomination for U.N. ambassador and on the issue of moving ahead with these judgeship nominations without filibuster? 

O‘DONNELL:  Absolutely, and particularly moderate Republican senators, who in many ways have been frustrating this White House, whether it was on the Bolton nomination, with Senator Voinovich saying, wait a minute, my conscience.  I‘ve got to slow things down here. 

Moderates, too, on the energy bill, which the president blames for some of the high gas prices.  It‘s been a long stalled bill for some four years.  And, again, remember that some of these moderate Republican senators are also the holdout when it comes to the constitutional option or the so-called nuclear option that Republicans in the House are considering. 

So, clearly, the president trying to sell to them as well.  But, you know, he does that in private a lot.  There have been numerous lawmakers coming over to the White House almost every other day.  It‘s one untold story that nobody knows about.  This guy has been working them behind the scenes. 

Tonight, this is really an opportunity for the president to address the American people in a rare prime-time news conference.  Let‘s remember that this is only the fourth time the president has done an evening news capital.  And his advisers tonight concede that this is an effort by the president to regain his political capital, because his approval ratings have hit an all-time low, just as he is preparing for a lot of these big fights and potentially a Supreme Court vacancy in the next couple of months, with some people saying Rehnquist could retire in June. 

MATTHEWS:  Is that a—is this a preliminary, Joe Scarborough, the big fight, the culture war we‘re seeing right now?  It has really sort of shown itself dramatically in this fight over judgeships and the talk about the men in black robes.  Do you think we‘re facing really a battle royal this summer if Rehnquist steps down as justice of the Supreme Court? 

SCARBOROUGH:  Politically, we‘re facing a nuclear summer. 

You know, John Bolton—I hate to break the news to everybody, like me, that loves following politics in Washington, D.C.—middle Americans don‘t know who John Bolton is.  They don‘t care who he is.  They don‘t care if he cooked the books.  They don‘t care if he shoved documents under a door in Russia back in 1994.  They just don‘t care. 

O‘DONNELL:  But...

SCARBOROUGH:  They do care about judges.  This summer is going to be a battle, I think probably like none we‘ve seen since Robert Bork in 1987.  You‘re going to see Rehnquist step down, possibly Sandra Day O‘Connor.  And when that happens, you‘re going to see the president trying the remake the court. 

Unlike Bolton—I‘ll be honest with you.  If Bolton loses, so be it for the White House.  But I‘ll tell you what.  This president knows that he can change the Supreme Court.  He can change the federal judiciary forever.  That‘s the big picture.  That‘s the legacy.  That‘s what counts in the end to them. 

O‘DONNELL:  Chris, what‘s been lost in the debate about Bolton is, this is not just about a man.  This is also about a man that is going up to the U.N. at a time when the U.N. has to deal with Iran and North Korea. 

MATTHEWS:  Norah—thank you very much, Norah O‘Donnell, Joe Scarborough and Howard Fineman.

Stay with us.  President Bush‘s news conference will begin in just a moment.

ANNOUNCER:  The following is an MSNBC special report.

MATTHEWS:  It‘s 8:00 here in Washington now.

And, in just a moment, we‘re expecting President Bush to bring his first prime-time news conference in a year.  It‘s only the fourth time he‘s held a news conference in prime time during his entire presidency.

NBC News White House correspondent Norah O‘Donnell is with us now.

Norah, this is a rare occasion, isn‘t it?

O‘DONNELL:  This is a very rare occasion for the president to decide to play hardball and come out and meet reporters on such an occasion, especially on the first day of May sweeps and the networks covering this.  This means millions of Americans watching the president tonight as he explains to them his proposal to remake Social Security, add personal savings accounts.

And the president tonight will also talk about indexing, which means a cut in benefits if it passes for some wealthier retirees.  He‘s going to provide some more detail on Social Security tonight, and then addressing the issue of those sky-high oil prices and the pain at the pump that Americans are feeling.  The president has said he can‘t wave a magic wand when it comes to that.

But he‘s going to be trying tonight, according to his advisers, to show some empathy, at least suggest that he is trying to address this problem and prod those on Capitol Hill to move forward with his energy proposal.

It‘ interesting.  He‘s playing to a lot of different people in these remarks tonight, not just the American people, but also those on Capitol Hill.

MATTHEWS:  And the headline they‘re looking for is gas prices or Social Security, or both?

O‘DONNELL:  For the American people, they rate as gas prices as a greater concern than Social Security.

MATTHEWS:  OK. 

It‘s 8:00 here in Washington.  We‘re waiting now for the president to enter the room here, the East Wing of the White House.

There he is coming in, the president of the United States, his first prime-time press conference of this term.

END

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