updated 5/3/2005 2:40:42 PM ET 2005-05-03T18:40:42

Guest: Ann Gerhart, John Breaux, Nicholas Calio, Ben Ginsberg, David Boies

CHRIS MATTHEWS, HOST:  Tonight, a special report on the first 100 days of President Bush‘s second term.  Is the president‘s mandate strong enough to power big change?  Is master architect Karl Rove‘s bigger and bolder design a bridge too far? 

This is HARDBALL. 

Good evening.  I‘m Chris Matthews. 

Tonight, two warriors from the 2000 recount, Ben Ginsberg And David Boies, filibuster the filibuster. 

And first lady, first comic. 

But we begin with President Bush.  He has reached an important milestone, the end of the first 100 days of his second term.  It‘s a small club of presidents who have enjoyed two terms.

And, as HARDBALL correspondent David Shuster reports, how those first 100 days are spent can often set the tone for a president‘s second term. 

(BEGIN VIDEOTAPE)

FRANKLIN DELANO ROOSEVELT, PRESIDENT OF THE UNITED STATES:  Let me assert my firm belief...

DAVID SHUSTER, NBC CORRESPONDENT (voice-over):  It is a benchmark that dates back to FDR.  In 1933, while facing the Great Depression and massive unemployment, FDR said that he would introduce drastic new policies in 100 days.  He did.  And the phrase first 100 days stuck. 

But at the start of his second term, Roosevelt‘s ambitious efforts to pack the Supreme Court were ridiculed and rejected, thus beginning the mixed report card for presidents in the first 100 days of a second term. 

In the modern era:

RONALD REAGAN, PRESIDENT OF THE UNITED STATES:  Let us move together with an historic reform of tax simplification for fairness and growth. 

SHUSTER:  Ronald Reagan wanted to focus on tax cuts and a new partnership with Russian leader Mikhail Gorbachev.  Eventually, Reagan made progress with both.  But, in 1985, Reagan‘s labor secretary, Raymond Donovan, was forced to resign and stand trial on fraud charges.  Reagan got undermined by the pope on his efforts in Central America. 

And then the Reagan White House announced a trip to a German military cemetery, with the president making the controversy over Nazi guards even worse. 

REAGAN:  I know all the bad things that happened in that war.  I was in uniform for four years myself. 

SHUSTER:  Actually, Reagan was in Hollywood making training films.  The cloud over this visit to Bitburg, though, was soon overshadowed by damage from the Iran-Contra scandal.  In violation of congressional law, the Reagan White House had authorized covert payments to the rebels in Nicaragua. 

REAGAN:  We did not, repeat, did not trade weapons or anything else for hostages, nor will we. 

SHUSTER:  The scandal dominated Reagan‘s second term.  President Clinton‘s second term was dominated by the Monica Lewinsky scandal and impeachment.  But Mr. Clinton‘s first 100 days of that term were a success. 

WILLIAM J. CLINTON, PRESIDENT OF THE UNITED STATES:  We, the American people, we are the solution. 

(APPLAUSE)

SHUSTER:  The Clinton White House focused on a budget deal with the Republican-led Congress that combined tax cuts and reductions in spending. 

And, at the end of the 100 days:

CLINTON:  It will be the first balanced budget in three decades. 

SHUSTER:  With the stock market booming and unemployment low, Clinton balanced the budget even sooner.  But there were signs of trouble for his presidency in other ways. 

The Whitewater investigation was gaining steam and that meant new energy for independent counsel Kenneth Starr.  So, what does the 100-day benchmark mean for President Bush? 

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  I believe a reformed system should protect those who depend on Social Security the most. 

SHUSTER:  The president‘s plan for Social Security is floundering.  And historians point to his political position.  The president‘s approval rating stands at 45 percent, far below where Presidents Clinton and Reagan were at the same point in their second terms. 

(on camera):  Complicating matters for President Bush is that his entire agenda is exceptionally ambitious.  But historians note that, without any brewing scandals or long-term distractions, this president has something of an advantage over his predecessors, as he pivots from the first 100 days to the rest of his term. 

I‘m David Shuster for HARDBALL in Washington. 

(END VIDEOTAPE)

MATTHEWS:  Thank you, David Shuster.  We‘re joined right now by NBC White House correspondent David Gregory. 

Here we are at the 100-day mark and this administration‘s second term. 

What is the atmosphere like down there at the White House? 

DAVID GREGORY, NBC WHITE HOUSE CORRESPONDENT:  Look, Chris, I don‘t think it‘s as good as they expected it to be. 

I think they didn‘t expect to be fighting on so many different fronts right now.  And here‘s Social Security that the president talked about immediately after his reelection.  He said, I have got all this political capital now and I‘m going to spend it and I‘m going to spend it in this area.  And now he‘s really in a fight for his political life on this in his second term as to whether this is going to go anywhere. 

I also didn‘t think he expected that Democrats would be so united against him at this point. 

MATTHEWS:  Well, let me ask you about—which were the fights that they predicted and which were the one that they got stuck with?  The whole thing in dealing with cultural conservatism, it started with the Schiavo matter and now seems to have melded into this fight over the filibuster.  Did they want that fight on the cultural right? 

GREGORY:  Well, you know, I think that, ultimately, they did. 

I think they were willing to engage in a way that made judicial nominees front and center for the American public.  Karl Rove had said that he felt in the last election that they were able to argue the case of obstructionism when it came to judicial nominees and that there was traction, certainly with the base and even with more moderate voters as well, that they could try to paint Tom DeLay and others as blocking the agenda for no good reason.  

So I think they‘re willing to engage on that.  This is a big part of his legacy, what he‘ll be able to do with the courts.  But, at the same time, over Schiavo, over the filibuster issue, he has also got to protect himself against the cultural right going too far.  And I think you saw that last week by him trying to distance himself from some statements that had been made on the filibuster issue and faith and even from Bill Frist. 

MATTHEWS:  Do they expect a major or a minor eruption on their center?  For example, John Warner from Virginia, the senator who has expressed big problems with this nuclear option to get rid of the filibuster on court appointments, Arlen Specter, chairman of the Judiciary Committee, the more moderate Republicans from Maine, Collins and Snowe and, of course, Linc Chafee, do they expect that sort of Yankee East Coast part of the Republican Party to rebel over this issue? 

GREGORY:  They always—they know that it is always a potential problem on various issues.  And we did an interview with Susan Collins last week, who I thought made an interesting point, saying that we can really be the negotiators for the president with the Democrats. 

And so, if they‘re really feeling alienated, it a question of whether you can get them back.  And I think it is a real concern here now on some of the issues that you‘ve talked about.  And I think, again, that‘s why the president had to do something to protect himself a little bit on the issue of faith and filibusters, so that he does not get too far out there with the idea that he‘s overreaching, that there‘s some kind of arrogance of power in the second term, that he‘s reaching past whatever mandate he had, because if he does go too far out there, I think his concern is that he becomes a lame duck even sooner. 

And that‘s why Social Security becomes the initial litmus test. 

MATTHEWS:  How does he sell the suburban Republican Party on the East

Coast, around the big cities, who are already turned off, it seemed to me -

·         and we‘ve just talked about that—by the cultural right perhaps pushing too far, now telling them, oh, by the way, in addition to playing ball with the conservative—cultural conservatives, who you don‘t like that much, I‘m going to now means test your Social Security benefits?

GREGORY:  I don‘t think it‘s going to be a good idea. 

Look, I think the president has got a real problem on Social Security.  He started out by saying, I‘m going to take this bull by the horns.  This is a hard issue.  I‘m going to show leadership.  I think people respected that.  The problem is, his idea was to propose these private accounts, which a lot of people just think are risky.  And now, to try to soften that blow, he‘s asking people to accept something that‘s really painful in benefit cuts. 

I think it is going to be very, very difficult.

MATTHEWS:  Yes. 

GREGORY:  And I don‘t think he‘s got willing partners on the other side.  And that‘s the problem. 

You know, they keep talking about, well, Democrats need to come up with ideas.  Well, here‘s the truth.  They don‘t want to.  They‘re happy to have the president out on this ledge.  I think if they can just kind of sit on the ball here for a few more months, they can get into an election cycle for next year where they can start running against this president and, by proxy, Republicans and saying, look, these are the people who wanted to gut Social Security. 

Whether that‘s fair or not, depending on your point of view, that‘s still the argument I think we‘re going to hear. 

MATTHEWS:  OK, thank you very much, David Gregory, White House correspondent for NBC News. 

Nick Calio is a former assistant to the president for legislative affairs.  And former Democratic Senator John Breaux of Louisiana retired from the Senate, from the Senate this January.  He is now a senior partner at the firm of Patton Boggs. 

Let me ask you, first of all, Senator, do you think the Democrats, knowing them the way you do, would ever bite for the apple and say, yes, we want to go negotiate with the president on ways to cut back Social Security benefits?  Why would a Democrat want to be part of that operation? 

JOHN BREAUX (D), FORMER U.S. SENATOR:  Well, the truth is, Chris, they don‘t want to be part of it.  And that‘s why they‘re not doing it. 

Why?  Because the president is the one who said there‘s a crisis in Social Security.  A lot of Democrats feel that, look, there‘s a problem, yes.  It‘s not a crisis.  It is going to be OK into the year 2041.  So, why jump into this lake of icy water and try and cut benefits when it is really not necessary to do so?  So, they‘re not going to lead with their chin on something that they think is not broken. 

MATTHEWS:  I‘ve heard, Nick—you tell me if I‘m wrong—that the strategy is for the president to show some guts, as he did at his press conference last week, go out there and offer a pretty progressive, Democratic-style solution, which is to means test, give a better break to poor people than rich people or better-off people.  It sounds like a Democratic solution, and hope he can euchre the Democrats in to the bargaining table.  Is that the thinking? 

NICHOLAS CALIO, FORMER BUSH LEGISLATIVE AFFAIRS DIRECTOR:  Well, I won‘t speak for what their thinking is.  I think that‘s part of it. 

I think, more importantly, Chris, the president sees a problem.  Let‘s say in 2041 or 2018.  Doesn‘t matter.  Everybody knows we have very steep problems with Social Security. 

MATTHEWS:  Right. 

CALIO:  It needs to be fixed.  The president is attempting to fix it. 

And you have to break some eggs before you can make an omelet.  We‘re still in that stage.  It‘s very premature for people to declare this dead, say private accounts are off the table. 

I don‘t think you ever rule this particular president out.  When he gets his head set on something, he moves forward and he‘ll keep doing it.  It is pretty gutsy, I think, to take it on, because everybody else would like to hide their heads.

MATTHEWS:  Yes. 

CALIO:  And pretend like there is no problem.  I don‘t know.  Do your kids think they‘re going to get Social Security? 

MATTHEWS:  We don‘t talk about it.  We talk about how much money do you want for the weekend. 

(LAUGHTER)

MATTHEWS:  Let me ask you this.

(CROSSTALK)

MATTHEWS:  I‘m just kidding.  Something like that.  I shouldn‘t put down the kids.  They‘re very smart. 

Let me ask you this.  Do you think they might—the Republicans may have for the first time underestimated the Democratic opposition?  So far this year, the Democrats have been holding fast on a lot of issues.  They‘ve been really obstructionist and effectively obstructionist on the courts, on Social Security, not giving an inch.  On the whole thing with Schiavo, they stuck to their guns, a lot of them.

What—do you think there‘s a surprise here, that they may be a little tougher than you thought? 

CALIO:  I think some people are surprised. 

But I think, more importantly, you have to look at some other issues where they haven‘t, where things have actually gotten done.  And that‘s how I would judge the first 100 days.  I think everybody wants to hyperventilate about, well, is it a success or is it not?  But class-action reform, bankruptcy reform, you have got a budget passed this year, which you did not last year. 

MATTHEWS:  Yes. 

CALIO:  Highway bill is moving.  An energy bill has passed the House, nine new members of Cabinet confirmed.  There‘s an awful lot that‘s happened here.  And Democrats are playing ball on some of it.  On other issues, they‘re not.

BREAUX:  Chris, the problem is not so much the Democrats as it is their own Republicans.  You don‘t have a Social Security bill because you don‘t have enough Republican support.

MATTHEWS:  You don‘t any that I can count.

BREAUX:  Well, you don‘t have any in the Finance Committee to get it out.

MATTHEWS:  Yes. 

BREAUX:  You don‘t have the Bolton nomination because Republicans have objected to that. 

And I think that a lot of problems are because you don‘t have unanimous agreement.  Their filibuster changes on the rule, there are probably about six Republican senators who don‘t want to do that.  So, you don‘t have a united Republican Party behind some of these efforts. 

MATTHEWS:  Aren‘t you surprised, both of you, at the public indignation about this engagement even about a procedural question before the United States—why do you think, Senator, that people in the—my brother was telling me this back home in Philly in that area.  People are all energized, republicans.  They don‘t want to challenge this filibuster rule. 

BREAUX:  Well, they really don‘t. 

(CROSSTALK)

MATTHEWS:  Why do regular people care? 

BREAUX:  Well, I think they do, because they think that you don‘t change the rules in the middle of the game.  And you have people like a Bob Dole, like an Alan Simpson, distinguished senior senators who are not running anymore, so they can give their honest perspective on it. 

MATTHEWS:  Yes.

BREAUX:  And they don‘t think it should be changed either. 

CALIO:  I think the American people sense what a lot of people feel, that everybody needs to take a deep breath, get some perspective before you change anything. 

MATTHEWS:  Yes. 

CALIO:  Now, the rules did change in the middle of the game, because we haven‘t had judges filibustered for 215 years. 

MATTHEWS:  Yes. 

CALIO:  That said, I think people need to think through where they go in shutting down the Senate.  And that‘s both sides...

(CROSSTALK)  

MATTHEWS:  Separating...

(CROSSTALK)

CALIO:  Yes. 

MATTHEWS:  I think Lyndon Johnson‘s best buddy gets stopped in his tracks. 

We‘ll be right back with Nick Calio and former United States Senator John Breaux.  They know their stuff.

You‘re watching HARDBALL‘s special coverage of the first 100 days of President Bush‘s second term, only on MSNBC.

(BEGIN VIDEO CLIP)

G. BUSH:  As I say, I‘m going to go out and explain why I think it is important for to us address big issues like Social Security reform. 

And I know that any discussion about Social Security can frighten people who rely upon their Social Security check. 

I don‘t care what the ads say, what the politicians say.  You‘re going to get your check. 

I‘m talking about Social Security because I see a problem and I believe the job of the president is to confront problems. 

(END VIDEO CLIP)

(COMMERCIAL BREAK)

MATTHEWS:  Coming up, what ever happened to civility here in Washington and should both sides do more to stop win-at-all-costs politics?

HARDBALL‘s special coverage of the first 100 days of President Bush‘s second term continues after this.

(COMMERCIAL BREAK)

(NEWS BREAK)

MATTHEWS:  We‘re back with Nick Calio, the presidents‘ former assistant for legislative affairs, and former Democratic Senator John Breaux. 

Let me ask you this.  Some second terms get into trouble, second-term presidents, because they have second-rate staff.  Was the president‘s first term staff smarter about issues like Social Security, smarter about issues like the filibuster, and would have been able to warn the president problems were ahead and he wouldn‘t have done what he did? 

CALIO:  Oh, I think everybody on the staff now knew that there were problems.  I think they went willingly into the argument.  It‘s what I was saying earlier about the president.  He likes tough issues.  He‘s taken them on his entire first term.  He‘s taken them on the second term.  He listens to the staff.  The staff sees it coming.

You keep moving, though.  And there are ways around and ways to fix it.  So, I don‘t think the staff is any less smart than we were in the first term, although I do think we were incredibly smart. 

(LAUGHTER)

MATTHEWS:  OK.

Senator Breaux, would you vote to get rid of the filibuster and court appointments? 

BREAUX:  No, I wouldn‘t. 

(CROSSTALK)

MATTHEWS:  Why would you—why would you oppose that move by Frist and the other Republicans?

BREAUX:  I think that the filibuster rule is part of the history and the rules of the Senate.  You don‘t want to change it.

I think senior Republicans have recognized that who are out of the Senate and not subject to political pressure.  I mean, I think that the second term of a president should be for the history books. 

MATTHEWS:  Yes. 

BREAUX:  First term, you are worried about getting reelected.  The second term, you want some accomplishments. 

And I would just hope that Social Security, I don‘t think he wants that to be the landmark of the second administration and not get it done.  They better find some ways to cooperate and come up with some real accomplishments. 

MATTHEWS:  Do you think the president overdid his companionship with the cultural right by going into the Schiavo case, racing back to Washington to sign that bill?

(CROSSTALK)

BREAUX:  I have got to believe that everybody who jumped into that really now wishes they didn‘t.  I think that the public says, look, there are some things that are family, religious, with your doctors, and shouldn‘t be political. 

MATTHEWS:  Nick, do you agree with that? 

CALIO:  I think the public reaction was more than most people estimated.  And I think I agree with the senator on that, actually. 

MATTHEWS:  What about Social Security?  Do you think, in the end, the president will get a vote that basically justifies the political capital he spent on this, Nick?

(CROSSTALK)

MATTHEWS:  Will he get some kind of reform between now and the next election or will he have to go to the lame duck after that to get something? 

CALIO:  I think he‘ll get something done.  We have big problems not only with Social Security, but with our pension system, with retirement savings and with savings in general.  There‘s a big plate here. 

MATTHEWS:  So you bet he‘ll get a bill?

CALIO:  I am.

MATTHEWS:  John, Senator?

BREAUX:  I think he‘ll get something.  There‘s not a lot of choices.  You‘re going to reduce benefits, increase the eligibility age or increase taxes.  I mean, none of those are pleasant choices. 

The new concept he put on the table I quite frankly think is a good approach. 

MATTHEWS:  Do you think Democrats will agree to help him get through what looks like a largely Democratic approach of progressive benefits and help him do it before the next election or do it in a lame duck? 

BREAUX:  I would hope so for the future of Social Security, not for the next election.  Let‘s just get something moving in the right direction.

MATTHEWS:  But, knowing the Democratic Caucus, do you think they‘re willing to help the president do something difficult?  Would they rather have him stew in it? 

(CROSSTALK) 

BREAUX:  I haven‘t seen it so far, but I think, hopefully, cooler heads will prevail before it‘s over and they‘ll do something like that. 

MATTHEWS:  But you‘ve always been a cooler mind. 

BREAUX:  Well, I try to get them together. 

(CROSSTALK)

MATTHEWS:  You have always been to the right of some of the left-wingers in the party. 

BREAUX:  Well, I think that if—I think if do you what is right, the politics will follow.  And it will be a successful political event as well. 

MATTHEWS:  Wow, the voice of centrism, the voice of reason.

Anyway, thank you, Nick Calio.

CALIO:  Thank you, Chris. 

MATTHEWS:  Longtime lobbyist for President Bush.

And Senator John Breaux, a voice for reason in the Senate all those years.  Now he‘s here.

When we come back, will the Republicans be able to get rid of the filibuster?  I‘ll ask political attorneys Ben Ginsberg and David Boies.  Two of the hottest lawyers in the country are going to fight over the filibuster.  They‘re going to filibuster it.

This is HARDBALL‘s special coverage of the first 100 days of President Bush‘s second term, only on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL.  The filibuster fight moves to the airways with dueling ads from conservative and liberal groups. 

Here‘s the newest anti-filibuster ad from Progress For America. 

(BEGIN VIDEO CLIP, PROGRESS FOR AMERICA AD)

NARRATOR:  If you had judges should be fair and well-qualified, look at these women.  Janice Brown is the daughter of sharecroppers.  She put herself through school and rose to become the first African-American woman on the California Supreme Court.  Brown has won praise from Republicans and Democrats for being fair and honest.  Other judges call Janice Brown superb and supremely intelligent. 

Priscilla Owen was twice selected to serve on the Texas Supreme Court.  Endorsed by major newspapers, Owen got strong bipartisan support and the ABA‘s highest rating.  President Bush nominated them and many others to be federal judges, some as long as four years ago.  But Senate Democrats have abused the rules and refused to even allow a vote.  So courtrooms sit empty while thousands of Americans have their cases delayed. 

The job of a U.S. senator is to vote.  Urge your senators to vote up or down.  Enough is enough. 

(END VIDEO CLIP)

MATTHEWS:  That was an ad to get rid of the filibuster in court nomination fights.  Here‘s an ad to support filibusters paid for by the People For the American Way.  It debuts tomorrow. 

(BEGIN VIDEO CLIP, PEOPLE FOR THE AMERICAN WAY AD)

NARRATOR:  Filibuster talk really all about?  Power.  And too much power is a dangerous thing.  The Senate‘s approved more than 200 judges.  But these men are all bent out of shape when we question a couple nominees? 

This one?  President Bush‘s own attorney general criticized her 10 times.  Her?  She‘s so radical that she says, with programs like Social Security and Medicare, seniors are cannibalizing their grandchildren.  I say save the filibuster.  Listen, for 200 years, it‘s made sure power doesn‘t go unchecked. 

(END VIDEO CLIP)

MATTHEWS:  Ben Ginsberg, a Republican attorney, is one of those whose clients, by the way, is Progress For America, which put out the first ad opposing the filibuster.  Ginsberg also worked for the Bush campaign during the 2000 election recount. 

Attorney David Boies was on the other side of that fight as lead counsel to Al Gore. 

Let me ask you, David Boies, doesn‘t a candidate or a nominee for a major court appointment in the United States government have a right to an up-or-down vote by the Senate? 

DAVID BOIES, AUTHOR, “COURTING JUSTICE”:  Of course.  And they‘ve always gotten one when the rules were complied with. 

And the whole question here is, what are the rules going to be and whether the rules are going to be changed in the middle of the game.  You‘ve got two things that are competing.  One is majority rule.  And the other is minority rights.  And throughout our history, we‘ve tried to reconcile those two principles. 

And one of the ways we‘ve done it is by saying that today you need 60 votes to stop debate.  You need 60 vote for a judge, for example, if the other side feels sufficiently strongly enough to filibuster.  And whether you should take away that protection of the minority, in favor of majority rule, there are, I think, good arguments both ways as to whether or not there should be filibuster for judicial nominations or anything else. 

But I think that the thing that concerns a lot of people, and it concerns me, is trying to change the rules in the middle of the game at a time when the country is so divided over so many issues and give one party, whatever that party is, complete control over who is put on court. 

MATTHEWS:  Ben? 

BEN GINSBERG, FORMER BUSH-CHENEY CAMPAIGN ATTORNEY:  David will be hard-pressed to name for you a nominee for judge who has had majority support in the Senate who has ever been filibustered before. 

The simple fact of the matter is that the rules of the game have not included filibusters for judges.  That‘s because the section with the advise and consent power of the president is in a part of the Constitution that‘s different from the legislative powers, where there are filibusters.  And the traditions of the Senate are not to filibuster nominees, and never before has a nominee with majority support in that chamber been denied a vote.  Yet, that‘s what the Democrats are doing at this stage as part of their overall obstructionist policies. 

MATTHEWS:  Are you arguing, Ben, that a president has as much right to an up-or-down vote for a court appointment as he does for a Cabinet appointment, because isn‘t that the same—that‘s in the same part of a responsibility? 

GINSBERG:  It is.  And when has a Cabinet appointee been filibustered before?  There are questions in committees that come up, but not in terms of the up-or-down votes on nominees. 

MATTHEWS:  David, does a court nominee deserve a special regard with regard to nominations over, say, a Cabinet appointment, where a president would want his person?  Does a court nominee stand differently than that? 

BOIES:  Well, I think, if the court nominee stands difficulty, it ought to be somebody who has greater protection for minority rights, because you‘re talking about lifetime appointments and a Cabinet person obviously expires when the president who appointed him or her leaves office. 

I‘m not so sure that Ben is right in remembering history.  My recollection—and maybe it is a little hazy—but was that the Republicans did filibuster when Lyndon Johnson tried to appoint Abe Fortas to be chief justice of the Supreme Court.  I also think that you had filibusters with respect to a number of Cabinet officers that have been appointed throughout history. 

So—and I don‘t think this is a unique example.  It certainly isn‘t a unique example of the rules.  The rule have been there.  And, for example, last administration, during the Clinton administration, the Republicans used the rules and their control over committees to prevent nominees from getting to the floor for an up-or-down vote. 

(CROSSTALK)

GINSBERG:  Well, that‘s mixing some apples and oranges, I‘m afraid.

(CROSSTALK)

BOIES:  Well, no, I don‘t think so.  It‘s not, because what the question is, is whether you‘re using the rules to prevent majority rule or not. 

GINSBERG:  Well, or inventing the rules. 

The Fortas, the Fortas incident, just to go back, was four days of not allowing the vote to come in a bipartisan fashion. 

BOIES:  Right. 

GINSBERG:  And he never had a majority support in the chamber. 

BOIES:  Well, if he didn‘t have majority votes, you didn‘t have to have that.

GINSBERG:  Each and every one of the president‘s nominees who were held up by the Democrats‘ filibuster in this case has majority support in the chamber, as evidenced by the votes that were taken on culture in the last Congress.

(CROSSTALK)

MATTHEWS:  We‘re going to have to come back, David.  We‘ll have to come back.

BOIES:  OK.

MATTHEWS:  David, you‘ll come back.  Ben will be back.

When we come back, we‘re going to talk about who is going to win this fight and what are the stakes over this big thing that, according to Bill Frist, is coming to a head.

This is HARDBALL‘s coverage of the first 100 days of President Bush‘s second term, only on MSNBC.

(COMMERCIAL BREAK)

(NEWS BREAK)

MATTHEWS:  Welcome back to HARDBALL‘s special coverage of the first 100 days of President Bush‘s second term.  We‘re back with Ben Ginsberg and David Boies. 

David, do you see any outlook for a compromise here?  Everybody in the hustings are talking about this court fight because it carries so much load, I mean, abortion rights, everything else.  Do you think there‘s going to be a compromise over this filibuster fight? 

BOIES:  I don‘t really know whether there will be or not.  Everybody would like I think to see a compromise.  But right now, the lines are drawn so strictly, I‘m not sure you will be able to get one. 

MATTHEWS:  Ben? 

GINSBERG:  Well, I think the possibility of compromise is always there when the members of the Senate meet. 

But I do agree with David that things seem to be drawn pretty starkly here.  And the principle of an up-or-down vote is one I don‘t think the Republicans are going to waver from. 

MATTHEWS:  What about the 10 appellate nominations that are in question here?  Why not let the Democrats—why don‘t the Democrats let the Republicans have five of them go right past? 

GINSBERG:  Well, for the simple reason that the Republicans believe in the principle of an up-or-down vote on these judicial nominees. 

BOIES:  Oh, come on, Ben.

GINSBERG:  It‘s interesting that the Democrats, who started with their principle that they were out of the mainstream, have now wavered enough to say, well, maybe we can let four of seven or five of 10 through. 

BOIES:  That‘s—Ben, Ben, you know better than that. 

The whole opponent of rules is to limit majority rule in favor of minority rights.  And the suggestion that somehow the filibuster is inconsistent with majority rule and an up-or-down vote is—of course it is.  That is why it is there.  That‘s why the Republicans have used it when it‘s been in their interests.  That‘s why the Republicans have bottled judgeships up in committee, because they didn‘t want to have an up-or-down vote. 

GINSBERG:  The Republicans...

BOIES:  Both parties have used these kinds of rules to prevent majority rule in order to protect minority rights.  The question is whether we‘re going to change the rules in the middle of the game, change the rules that we‘ve had for 200 years, because one party wants to have total control of who sits on the federal judiciary. 

MATTHEWS:  What about the argument, David, that your party were the ones who changed the rules by beginning to filibuster court nominations?  It hadn‘t been a practice before. 

BOIES:  But I don‘t think that‘s right.  For one thing, I think that...

(CROSSTALK)

GINSBERG:  Name me one.  Name me one. 

BOIES:  Well, I named you one before. 

(CROSSTALK)

GINSBERG:  But it is inaccurate, what you said.  There was never majority support for him in the chamber. 

BOIES:  That‘s what you say. 

(CROSSTALK)

GINSBERG:  It was a four-day filibuster.  The administration pulled back the nomination.

(CROSSTALK)

BOIES:  No.  Listen, if there wasn‘t majority support, there wouldn‘t have been a need for a filibuster.  If there weren‘t majority support for Fortas, they could have let an up-or-down vote go. 

(CROSSTALK)

BOIES:  The reason you have a filibuster is to prevent an up-or-down vote.  And in addition to that example, there are a number of historical examples of doing it with Cabinet members.  And there‘s a much greater justification. 

(CROSSTALK)

MATTHEWS:  David, I want to move on here.  Do you it‘s appropriate to use the filibuster against a Supreme Court nominee? 

BOIES:  I do. 

I mean, obviously, Fortas was a Supreme Court chief justice nominee. 

MATTHEWS:  Right. 

BOIES:  And I think it is particularly appropriate to use it there because you‘re talking about lifetime appointments.  You‘re not talking about a Cabinet office who is going to leave when the president who appointed him or her leaves.  You‘re talking about lifetime appointments.  That‘s where it is particularly important to protect minority rights. 

MATTHEWS:  Ben.

GINSBERG:  As a matter of essential fairness, a nominee who has majority support in the chamber should get an up-or-down vote. 

The Abe Fortas one, David, was a bipartisan attempt by Democrats and Republicans to stall while an additional investigation on Mr. Fortas was done.  And, ultimately, the administration pulled the nomination after four days.  What the Democrats have done is change the rules of the game, not the Republicans.  Article 2, section 2 of the Constitution, the essential element of fairness is that these people who should be nominated for judgeships should get an up-or-down vote. 

MATTHEWS:  Let‘s go to summary arguments here right now.

BOIES:  All right. 

MATTHEWS:  Summation by you, David.  Why is it important to maintain the filibuster in judicial nominations?

BOIES:  Well, first of all, judicial nominations are for lifetime appointments.  So, if you‘re ever going to have a filibuster, it ought to be with respect to judicial nominations. 

Now, I think there are—I think there are good reasons both for and against the filibuster.  On the other hand, I think it is an imperative not to change the rules in the middle of the game.  That‘s what‘s fair.  It‘s not the Democrats that are changing the rules.  These Senate rules have been in place for 200 years.  They‘ve been used by Republicans.  They‘ve been used by Democrats.

To suggest the contrary is just trying to mislead people.  What‘s going on here is an attempt by one party to exercise total control of who sits for a lifetime on the federal judiciary. 

MATTHEWS:  Your case.

GINSBERG:  Majority support has already been shown in the Senate for these nominees that are now being held up in an obstructionist manner to stop the essential fairness of an up-or-down vote.  And that is something that has never been done in the 200-year history. 

And David cannot name an example of where it has been done, which, unfortunately, is why the Democrats should compromise in a proper fashion on this and allow the essential fairness of an up-or-down vote on nominees who have the support of the majority of senators in the chamber. 

MATTHEWS:  Why are Republican senators, perhaps five of them, talking about not voting with the Senate majority on this?

GINSBERG:  I think it is always a tough vote to take something that will, as we‘ve described and David has accurately that, is such a contentious issue.  The Senate is a body that works on collegiality.  This will strain the collegiality of the Senate if the constitutional option is invoked. 

MATTHEWS:  Will this make the House, the Senate more like the House, David? 

BOIES:  Yes.  I think it will. 

MATTHEWS:  In other words, more contentious, more partisan, more divisive. 

BOIES:  I think it will.

I think what you‘re doing is, you‘re making it more conducive to one-party rule, less conducive to minority rights, more conducive to majority rule.  And you can have—as I say, you can have arguments both ways.  But I think it changes the character of the Senate.  And let us not have any mistake.  It‘s going to change the character of the Senate, not just with respect to judicial nominations, because when any party has majority control and they‘re being held up by a filibuster, they‘re just going to change the rules again. 

MATTHEWS:  OK.  It‘s been great to have both of you, Ben Ginsberg for the Republicans, David Boies for the Democrats, in this fight over the filibuster.

Coming up, first lady Laura Bush pokes fun at her husband in fun during this weekend‘s White House correspondents dinner. 

Plus, much more on the fight over filibusters. 

Our special HARDBALL coverage of the first 100 days of President Bush‘s second term continues, only on MSNBC.

(BEGIN VIDEO CLIP)

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

I expect them to get an up-or-down vote on the floor of the Senate.

They‘re not approving enough of my judges in the United States Senate. 

And I think my judges ought to get an up-or-down vote, period. 

I certainly hope my nominees get an up-or-down vote on the floor of the Senate.  They deserve an up-or-down vote. 

(END VIDEO CLIP)

(COMMERCIAL BREAK)

MATTHEWS:  Coming up, how does President Bush‘s Iraq gamble look now, 100 days into his second term? 

HARDBALL‘s special coverage continues after this.

(COMMERCIAL BREAK)

(NEWS BREAK)

MATTHEWS:  Welcome back to HARDBALL.

Along with the first 100 days of President Bush‘s second term, we‘ve also passed another important milestone.  Remember this announcement two years ago? 

(BEGIN VIDEO CLIP)

G. BUSH:  Officers and sailors of the U.S. Abraham Lincoln, my fellow Americans, major combat operations in Iraq have ended.  In the battle of Iraq, the United States and our allies have prevailed. 

(CHEERING AND APPLAUSE) 

(END VIDEO CLIP)

MATTHEWS:  David Frum is a former speechwriter for President Bush.  He didn‘t write those lines.  And Ann Gerhart is a “Washington Post” reporter and author of the book “The Perfect Wife: The Life and Choices of Laura Bush.”  We have got to talk about her after big weekend at the White House correspondents dinner.

Let‘s start with David. 

Was the president there making that terrible mistake of claiming victory prematurely? 

DAVID FRUM, FORMER SPEECHWRITER FOR PRESIDENT BUSH:  Yes. 

That is a moment you would like to have back and maybe redo the editing a little bit.  He was right to want to point out the triumph of the conventional war in Iraq.  But, you know, obviously...

(CROSSTALK)

MATTHEWS:  Did they know at the time that there was more hell to come, I mean serious hell to come, not just skirmishes?

FRUM:  I can‘t—I can‘t imagine.  You wouldn‘t have done that if you thought it was going to be as tough as it‘s been. 

(CROSSTALK)

FRUM:  On the other hand, on the other hand, it also has to be said that maybe it was just a little bit premature, because you can see now, over the past six months, a lot of signs of progress, especially since the January elections. 

MATTHEWS:  Let me ask you, though, do you think there was a question there, two factors, the passion of the opposition, the insurgency, over there, and their firepower?  Aren‘t you amazed that, every time there‘s a new explosion, nobody says, well, they‘re going to run out of this stuff soon?  They seem to have an unlimited amount of firepower for these IEDs, these explosive devices. 

By the way, you saw those horrible picture in “The Washington Post” the other day, killed by manmade bomb, killed by handmade bomb, killed by handmade bomb.  

FRUM:  Well, think about how much money Saddam managed to steal just in those final days of power, never mind all the years before. 

MATTHEWS:  Yes. 

FRUM:  And I think what we‘re now discovering and the thing that we weren‘t ready for, and that was the reason that scene on the boat is maybe unfortunate, was, this was his strategy.  He had planned this.  I think he thought he would be taking part of it, rather than being about to be hanged.  But this was the thing that he left for the United States to deal with. 

MATTHEWS:  Let‘s go to domestic policy. 

Ann, your sense now in the midst of all this fight over filibusters, over whether we have a filibuster in court nomination fights, whether we have a Social Security reform of any major dimension, how is the president doing into his 100 days? 

ANN GERHART, “THE WASHINGTON POST”:  Well, I think that he‘s getting somewhere.  I mean, he has managed to accomplish bankruptcy reform, a big overhaul that both business wanted and many of the conservatives behind him want. 

And there‘s been change in class-action litigation.  The big piece of what he hopes to be his overhaul for his second term is Social Security.  And that‘s sort of creeping along, sometimes stalled, sometimes maybe a little movement.  Over the weekend, we saw some of that.  So, what has evaporated, I think, is that same kind of vim and vigor, much like we saw on the carrier, that mission was accomplished, only to be eroded by events on the ground. 

The vim and vigor after the election was that he had a clear mandate and he was going to go forward with his strong, bold vision.  And that hasn‘t gone quite as boldly as I think everyone hoped in the White House. 

MATTHEWS:  Well, certainly going to Iraq was bold.  And people say that the president wanted to show the same boldness domestically, do something really big, not something marginal. 

(CROSSTALK)

MATTHEWS:  The idea of making Social Security more of an investment program and less of an entitlement program, the idea now which he‘s offered of making it more progressive in terms of benefits, are those—are those a bridge too far, just too much? 

FRUM:  Well, if he succeeds in those...

MATTHEWS:  To get done?

FRUM:  This is the biggest policy revolution since at least the early Reagan days and maybe since the Great Society.  This would be a gigantic event in American life. 

These other two things that Ann mentioned would be pretty considerable accomplishments in the 100 days of any second-term president. 

GERHART:  Right. 

MATTHEWS:  But no klieg lights.  They‘re nobody focused on those things.

FRUM:  They‘re not focused.  Maybe that‘s one of the reasons they got through so easily. 

MATTHEWS:  Yes. 

FRUM:  But those are big things in their own way. 

MATTHEWS:  Is this a time—last question before we go to break.  Is this a time for revolutionary change in domestic policy?  In the infrastructure of our lives, Social Security, Medicare, is this a time to push big stuff or isn‘t it? 

FRUM:  Well, if you think that the Social Security reform is a powerful and important thing, this is a moment.  I mean, when are the Republicans ever going to have a better time to do it than they do right now?  And if they believe it is as good for the country as they do, as I do, you do it.  And you don‘t count the moment.  We won‘t know until later whether it was the right moment or not. 

MATTHEWS:  Ann, last question.  Do you think this is the time for a big change in Social Security?  Are we going to have to wait until after the next election in the lame duck session of the fall of 2006 to get this thing done? 

GERHART:  Well, I think we‘re about to find that out, aren‘t we? 

I mean, the polls are not so good.  The American people are quite unsure about all of this in a way that I think surprised the Republican leadership.  And now they‘re trying regroup and see if they can get behind it.  I mean, the House seems to be ready to push forward.  The House Ways and Means Committee chair seems to have some ideas that may work. And we‘re just going to have to wait and see whether that happens or not. 

MATTHEWS:  OK.  That sounds hopeful, by my definition. 

Anyway, coming up, we‘ve got to talk to Ann and you about the first lady.  She brought down the house Saturday night at the White House correspondents dinner.

Let‘s listen.

(BEGIN VIDEO CLIP)

LAURA BUSH, FIRST LADY:  Nine o‘clock.  Mr. Excitement here is sound asleep. 

(LAUGHTER)

L. BUSH:  And I‘m watching “Desperate Housewives.” 

(LAUGHTER)

(CHEERING AND APPLAUSE) 

(APPLAUSE)

L. BUSH:  With Lynne Cheney. 

(LAUGHTER)

L. BUSH:  Ladies and gentlemen, I am a desperate housewife.  

(LAUGHTER)

(APPLAUSE) 

(END VIDEO CLIP)

MATTHEWS:  More of Laura Bush‘s routine when HARDBALL‘s special coverage of the first 100 days of President Bush‘s second term continues, only on MSNBC. 

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

L. BUSH:  After George went to bed, Lynne Cheney, Condi Rice, Karen Hughes and I went to Chippendales. 

(LAUGHTER)

L. BUSH:  I wouldn‘t even mention it, except Ruth Bader Ginsburg and Sandra Day O‘Connor saw us there. 

(LAUGHTER)

(END VIDEO CLIP)

MATTHEWS:  That was first lady Laura Bush performing stand-up comedy at Saturday night‘s White House correspondents dinner. 

We‘re back with Laura Bush biographer Ann Gerhart of “The Washington Post” and former speechwriter David Frum. 

I have got to go to Ann on this. 

The reason that joke works, I guess, is because nobody believes her, right?  She wouldn‘t go to Chippendales and see a bunch of guys dance naked. 

(CROSSTALK)

(LAUGHTER)

GERHART:  I don‘t think we would find out about it if she did. 

No, she wouldn‘t.  That is why the joke works.  You know, it is quite curious to me, actually, because, on many levels, you would think that this is just the kind of joke you would think Laura Bush wouldn‘t make.  She wouldn‘t be talking about going to Chippendales.  She wouldn‘t be talking about Lynne Cheney stuffing dollar bills into the whatever, thongs, of a Chippendales dancer.  She wouldn‘t be talking about the president putting his hands on a horse and pretending to milk it. 

MATTHEWS:  Yes. 

GERHART:  You would think that would be a no-no.  It worked in that room.  I guess it works across America.  I suppose we‘ll find out.

MATTHEWS:  Well, there‘s always—there‘s always the teasing possibility that a little part of it is true, Ann, that the idea that the president is a little dull as a husband.  He does go to bed at 9:30.  He doesn‘t spend the whole night whatever. 

(LAUGHTER)

MATTHEWS:  But the fact that she might be desperate is the funny part. 

Let me ask you this about Laura Bush.  I‘ve noted something about her.  I‘m not a clothes watcher.  I don‘t know anything about fashion.  But it does seem to me that she‘s perking up things a bit. 

GERHART:  I do think that she seems to be liberated by them not having to run for reelection again.

Look, she‘s always been really serene.  She is totally solid.  She is the perfect wife.  She has always represented him completely favorably.  There‘s nothing she‘s ever done that could embarrass this man.  And now that that part is over, I do think that she can make the story more about herself. 

I‘ve heard a lot of people say in the last 24 hours, oh, you know, she softened him.  She humanized him.  She doesn‘t need to do that anymore.  You know, Social Security is not going to pass whether—on the strength of whether Laura Bush makes a joke about her husband or not.  But for her sake, it gives her a chance to step out and see what she might want to accomplish on her own.  If she‘s going to generate positive press coverage, then, the next time she goes out to speak about anti-gang initiatives or whatever, the TV producer, the local city editor is more likely to say, you‘d better go out and see what Laura Bush is doing...

MATTHEWS:  Exactly. 

GERHART:  ... because you never know what she‘s going to do. 

MATTHEWS:  David, you wrote speeches for a president. 

FRUM:  Yes. 

MATTHEWS:  Did you ever write any for her, for Laura? 

FRUM:  Well, this speech actually violated one of the big rules of the Bush White House, which is a rule handed down by Karl Rove, which is, presidents shouldn‘t be too funny.  And they always...

(CROSSTALK)

MATTHEWS:  Right, because witty guys like Adlai Stevenson get beaten and Gene McCarthy get beaten. 

FRUM:  No.  It‘s because, thinking back to those hilarious Clinton speeches at the White House correspondents dinners in the late ‘90s, the thing that makes a president‘s speech really funny is self-deprecation to the point of being self-demeaning. 

(CROSSTALK)

FRUM:  And you listen to that speech.  I‘m with Ann second-questioning.  I wonder how—that doesn‘t sit right with a lot of people.  There‘s something a little bit lese-majeste about it. 

MATTHEWS:  Who makes these decisions about the strategy of humor on these nights? 

FRUM:  I think that would be from the communication people, Dan Bartlett, Karen Hughes.  They would make the call.

MATTHEWS:  Not Rove?

FRUM:  I think he wouldn‘t get so much into that.  But you have to sell the first lady.  She would have to be persuaded this is something she wants to do. 

MATTHEWS:  I have always wondered about second thoughts.  Why did you have her make a fool of herself?  Why did she make a fool of him? 

Anyway, it‘s—everybody loved it. 

Anyway, Ann Gerhart, thank you.

Thank you, David Frum. 

Tomorrow on HARDBALL, let the air wars begin.  Special interests are throwing big bucks at TV ad campaigns as a final bid to influence this big vote coming up on the filibuster.  Plus, former White House counsel C.  Boyden Gray, who knows all about this stuff from the inside.

Right now, it‘s time for the “COUNTDOWN” with Keith.

END

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

Content and programming copyright 2005 MSNBC.  ALL RIGHTS RESERVED.  Transcription Copyright 2005 Voxant,Inc. ALL RIGHTS  RESERVED. No license is granted to the user of this material other than for research. User may not reproduce or redistribute the material except for user‘s personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon MSNBC and Voxant, Inc.‘s copyright or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.

Discuss:

Discussion comments

,