updated 5/19/2005 10:54:06 AM ET 2005-05-19T14:54:06

Guest: Jon Corzine, Orrin Hatch, John Breaux, C. Boyden Gray, Mike Allen, Deborah Orin, Chuck Todd

CHRIS MATTHEWS, HOST:  Battleground Washington.  The Senate is headed toward a grand collision on rules, power, who sits on the U.S. Supreme Court and who gets to sit them there.  Plus the Bush team flogs Newsweek magazine in the public square, demanding global confession and restitution.

Let‘s play HARDBALL.

Good evening.  I‘m Chris Matthews.  The White House goes to war with Newsweek, urging the magazine to repair the damage of its retracted report on the Koran by explaining how it got the story wrong and writing about positive stories about the policies and practices of the U.S. military. 

But first, the raging fight over federal judgeships escalated on the Senate floor today as debate began on two of the president‘s judicial nominees.  The fight is headed for a constitutional showdown which will decide the shape of the Supreme Court and who shapes it.  It‘s about the kind of country you want to live in.

NBC justice correspondent Pete Williams has more on the two nominees at the center of the storm.

PETE WILLIAMS, NBC JUSTICE CORRESPONDENT:  Chris, both are women, both judges with solid conservative credentials, one has an especially inspiring personal story, but liberal groups say they‘re views are outside the legal mainstream.  Their supporters say that‘s a distortion. 

(BEGIN VIDEOTAPE)

WILLIAMS (voice-over):  On the eve of the debate, both nominees made the rounds, a last-minute push.  Few dispute that Janice Rogers Brown is among the nation‘s brightest and most independent-minded judges, daughter of an Alabama sharecropper, now on the California Supreme Court.

Democrats say her judicial opinions take a narrow view of what conduct amounts to illegal discrimination.  But it is her speeches that have attracted much of the concern.  She‘s a strong critic of past legal rulings that upheld laws guaranteeing minimum wages and the maximum workday and government entitlements like Social Security. 

A legal commentator said that‘s to the right of even most conservatives.

STUART TAYLOR JR., NATIONAL JOURNAL:  Her clear implication was all those laws are unconstitutional, and at least if she was in charge, they would be; and a whole lot of other federal and state regulatory laws.

WILLIAMS:  But her supporter say in her rulings, she follows the law.

MICHAEL CARVIN, FORMER GOVERNMENT ATTORNEY:  These are silly scare tactics by her opposition.  In her opinion, she is never in any way hinted that any New Deal or other beneficial economic legislation is unconstitutional.

WILLIAMS:  Priscilla Owen of the Texas Supreme Court has been waiting four years for a Senate vote on her nomination.  Opponents say she several times voted to restrict access to abortion by minors without approval from parents.

MARCIA GREENBERGER, NATIONAL WOMEN‘S LAW CENTER:  And she twisted it in a way that made it even more difficult than the Texas legislature intended for these very vulnerable young women.

WILLIAMS:  Alberto Gonzales, now attorney general, was on the court at the time and accused her of being tougher than the law required.  But her supporters say she was simply interpreting the law that wasn‘t very clear in the first place.

SEN. JOHN CORNYN ®, TEXAS:  What she was doing was the epitome of what judges should do, and that is to try to follow the legislature‘s consent—intent.

WILLIAMS:  And still to come, potential fights over three other nominees Democrats have threatened to filibuster: westerner William Myers over his environmental views; former Alabama Attorney General William Pryor over his views on gay rights; and Michigan State Judge Henry Saad, considered by opponents unsympathetic to workers in discrimination lawsuits. 

(END VIDEOTAPE)

WILLIAMS:  As for whether this is fair, the Democrats emphasize that they‘ve approved nearly all the president‘s court nominations, but the Republicans say the filibuster has never before been used so often to block so many—Chris.

MATTHEWS:  Thank you, Pete Williams.  Republican Senator Orrin Hatch of Utah is a member of the Judiciary Committee, and Senator Jon Corzine is a Democrat from New Jersey. 

Which of the opinions of Justice Brown, Senator Corzine, don‘t you like?

SEN. JON CORZINE (D), NEW JERSEY:  Well, I think that the judicial activism risk of a judge who argues that all of the New Deal doesn‘t fit into our constitutional framework is a danger .

MATTHEWS:  But which of her judicial opinions don‘t you like?  Cite some cases you don‘t like about Justice Brown.

CORZINE:  I think it is actually how she has spoke about what she believes is constitutional and not, is how I have come to my view.  It is not the particular decisions that she has laid down.  I think, though, she has stated very clearly that her view is that these laws are outside the precedent and the constitutional framework that allows them to be.

MATTHEWS:  Well, I want to get to the consequences of her views in her opinions.  Where, in her judicial opinions, do you find the consequences that you are scared of in terms of her appointment?  What bothers you about her opinions that makes you want to not have a vote on her?

CORZINE:  As you know, in an appeals court you can actually set precedent and change interpretations of the law that are very well established.  And I think that she has spoken out on a consistent basis inconsistently with what I think are precedents on a lot of public policies that are already decided.

MATTHEWS:  Would you like to vote against her if it came down to it?

CORZINE:  I will vote against her if it comes down to it.

MATTHEWS:  Why don‘t you allow your leadership to allow it to come down to it then?  Why don‘t you allow a vote in the Senate so that you can vote against her?

CORZINE:  Chris, this is very simple.  The United States Senate has always been a place, an institution that protected minority rights.  That‘s why we have two senators from California with 32 million people and two from Wyoming with 600,000.  It was built on the principle that minority rights should be protected, and the rules of the Senate were written so that filibuster was an appropriate format for challenging the minority - majority.  And it should be protected going forward, and I don‘t think we ought to be changing the rules to break the rules.

MATTHEWS:  But public opinion polls agree with you on that sentiment, but they also say that court nominees should have an up or down vote.  What do you say to that?

CORZINE:  I believe that there is a fundamental need to defend the rights of minorities in this country.  And that‘s what the United States Senate has traditionally been in place for and not always have I agreed with the use of the filibuster, but that has been one of those elements that have made our country great, because it forced long-term thinking, and we are clearly talking about a long-term commitment to an individual, a lifetime appointment, and I think the Senate rules should stand.

MATTHEWS:  Let me ask you, Senator Hatch, about the other nominee being discussed today, Priscilla Owen.

SEN. ORRIN HATCH ®, UTAH:  Let me first, Chris, say something.  Janice Rogers Brown is a minority.  She is an African-American woman, a sharecropper‘s daughter, came up the hard way, and rose all the way to the Supreme Court of the State of California, and she has the approval of the American Bar Association, the Democrat gold standard, and because she is a conservative African-American, they don‘t like her.  Now, come on, she deserves a vote.

MATTHEWS:  Why doesn‘t she have the general approval of the attorney general, who apparently, according to your colleague Ted Kennedy this morning, criticized her activism 11 times down in Texas?

HATCH:  And Kennedy was very, very wrong.  And I am talking about Janice Roger Brown, are you talking about Priscilla Owen?

MATTHEWS: OK.  Priscilla Owen.

HATCH:  OK.  Priscilla Owen, Kennedy misquoted her, he misstated her cases.  I have to say they have done this.  They have distorted her record.  Think about her.  She was first in her class at Baylor Law School.  First on the Bar examination.  She has got the top rating of the American Bar Association.  She was reelected with 84 percent of the vote in Texas.  She had all 15 former Bar Association presidents, most of whom are Democrats, every major editorial board in the state for her, and they call her an extremist?  Come on.

MATTHEWS:  Let me as you both.  Senator Corzine first.  You are right.  The filibuster is part of Senate tradition.  Everyone knows that and respects it.  There is a strong sentiment in the country to protect it.  But it hasn‘t normally been used in judicial nominations, and I wonder why the Democratic minority believes it should now.

CORZINE:  First of all, it has been used in other instances on judicial nominations.  The Abe Fortas situation is most obvious, but it has been used in other situations.  The rules in the Senate have been used by Republicans and Democrats to tie up nominations without even giving them a vote in committee.  So this is not inconsistent with history with how we have approached judges from time immemorial in our history.  And the filibuster, I think, is definitely an appropriate vehicle when you are talking about a lifetime appointment for someone.

And there is real debate about whether these individuals—I find it, actually, fairly ironic that Republicans are defending judicial activists who want to write the law from the bench, but we want to all have the ability to use our votes inside the context of the rules for the Senate, and filibuster has always been a part of that.

MATTHEWS:  Senator Hatch, it seems to be it has come down to this.  Will the filibuster be in order against judicial nominations?  There is no give here either way.  It seems to me it is going to come down to an up or down power decision by the Senate next week.

HATCH:  Well, I have to admit some of our Republicans wanted to filibuster Clinton judges and I said, that‘s not going to happen, and I prevented that and so did Trent Lott, who backed me up on it.  The fact is is that I believe advise and consent means a vote up or down.

Keep in mind there are two calendars in the Senate.  One is the legislative calendar.  I‘d fight to my death to keep the filibuster alive for that.  But the other one is the executive calendar where we are supposed to give advice and consent.  Consent means a vote up or down.  And what‘s wrong with giving these people who have bipartisan majority support a simple vote up and down; and by the way, there has never been a filibuster in the United States Senate, except you could make the case that maybe the Fortas case was, but even if you agree that it was, it was a bipartisan filibuster.  Almost as many Democrats as Republicans voted to sustain the filibuster. 

That is a far cry from what we have here, a leader-led partisan filibuster for no other reason than these two women are, they think, conservative women, and in the case of Janice Rogers Brown, an even worse problem for them, she is a conservative African-American woman, both of whom have high ratings by the American Bar Association and both of whom have excellent records on their respective courts.

They have been maligned badly, they ought to get a vote up or down.  Vote against them if they don‘t like them.  Senator Corzine has that right and I would respect that right.  But at least give these people their bipartisan majority vote up or down.

MATTHEWS:  Senator Hatch, Senator Corzine, we‘re going to come back with you in just a moment, and later, a new NBC News/Wall Street Journal poll shows big changes in approval ratings for the U.S. Congress. 

This is HARDBALL only on MSNBC.

(COMMERCIAL BREAK)

(NEWSBREAK)

MATTHEWS:  Welcome back to HARDBALL.  We are back with Senator Orrin Hatch and Senator Jon Corzine.  Senator Corzine, the charge I hear often during this debate is that these justices that are up for appellate positions are outside the mainstream.  That‘s a phrase that goes back to the Barry Goldwater days, I guess.  But haven‘t all the landmark decisions of the Supreme Court comes from justices such as Warren, who came in with a fresh point of view and did things to the Plessy case that all of the sudden we have a Brown case, or the Roe case?  All of the sudden, the judge looks at things with new eyes.

What‘s wrong with thinking outside the box?  Why are judges bad because they are not ordinary?

CORZINE:  When a judge is arguing or an individual is arguing that precedents that are well-established and generally accepted by society at large but the real cases that they have been accepted by precedent in courts, and they want to change those laws because they believe, from their personal perspective, that they are not constitutional, I think that‘s outside the mainstream.

MATTHEWS:  So you would have rejected Earl Warren back in 1953.

CORZINE:  No, I don‘t know whether I would have because I don‘t think he was outside of the mainstream.

MATTHEWS:  The mainstream was separate but equal was OK.  It took somebody to look into the Constitution and see something that nobody saw before, to say the Brown case.

CORZINE:  Well, you don‘t have to be outside the mainstream to say I am going to reexamine things and look at challenges when you are on the Supreme Court or a circuit court and you want to reexamine precedent.

But when you already have dictated what it is you believe needs to be changed by precedent, I think we understand where an individual was going, as opposed to looking for the consistencies of precedent.

MATTHEWS:  Would you vote against a liberal activist judge?

CORZINE:  If they were dramatically outside the mainstream, absolutely.

MATTHEWS:  OK, let me go to Senator Hatch here.  This issue of outside the mainstream does recall Barry Goldwater, outside the mainstream.  As if you have a position that‘s not within the 40 yard lines you shouldn‘t be on the court.  What do you make of that?

HATCH:  Well, that‘s no excuse to vote against somebody.  But look, during the Clinton years, the Democrats argued in every case that if you had the approval of the American Bar Association, which is certainly not a conservative organization, then you are within the mainstream.  The mainstream is fairly broad, by the way, and every one of these people not only have approval of the American Bar Association, most of them have the highest rating they can get from the American Bar Association.

And by the way, some of these comments about Janice Rogers Brown have been distortions of her record.  She made some comments outside of the court when she was speaking to try and create controversy and interest, but on the court she writes the majority of the majority opinions.  Now that‘s a liberal court and she is a conservative African-American woman.

MATTHEWS:  Aren‘t you against—aren‘t a first initial intent sort of guy, Senator Hatch?  Don‘t you believe in strict construction?

HATCH:  No, I don‘t.  I believe that that‘s part of it.  I am more of an originalist than I am a strict constructionist.  That is, what did the Founding Fathers mean?  Because we kept this country alive because we followed the Founding Fathers.  In the case of Priscilla Owen, you know, when she—they complain about—well, first of all, they say that the attorney general, Gonzales, criticized her.  And no, he criticized himself.  He said—in looking at that, he said, if I took another viewpoint, then I feel myself would be an activist.  He never called her an activist or the other two dissenting judges.

So what did they do?  They upheld the lower court finder of fact, which is what the appellate courts should be doing.  And then she gets criticized for that, that the parents should have a little bit—should be notified in the case of a girl who may not have been mature enough to make her own decision about abortion.  My gosh, 80 percent of the American people think that ought to be done.

MATTHEWS:  Senator.

HATCH:  So if she‘s outside the mainstream.

MATTHEWS:  Senator Hatch, we only have a couple of seconds left.  Senator, I am sorry to cut you off.  Do you think there is any change for a compromise on what seems to be an absolute against an absolute position here?

HATCH:  Well, I don‘t know, but I‘ll certainly look at anything, but I don‘t think we should compromise an up or down vote of any of these people who have a majority—bipartisan majority that are ready to vote for them.

MATTHEWS:  OK.  Senator Corzine, do you think Democrats should give on the issue of the use—how extraordinary the use should be of the filibuster in judicial nominations?

CORZINE:  I do think it ought to be in exceptional cases.  In my own view, based on my view that these folks want to break precedent, this is outside of mainstream and I think is an exception case.  By the way.

MATTHEWS:  How many of these nominees do you see right now as exceptional and therefore should not get up or down votes, should be filibustered?  How many of the ones that are on the dock now?

CORZINE:  I would say at least three of the five that are really under challenge.  Two.

MATTHEWS:  And you could compromise on the others?

HATCH:  Hold up, that‘s seven of them then.  I mean, by gosh, it just doesn‘t equate.

CORZINE:  I don‘t believe that the nuclear option, the so-called elimination of the filibuster should be practiced and put forward.  I think that is what the issue is about.  We ought to be protecting the rights of the minority to speak its voice.  And by the way, minority has lots of connotations, lots of connotations, including points of view that have held our society together.  That is what the rule of law is about and I think it is very important, and I think our constitutional writers, as Senator Hatch talks about the original intent, the original intent gave two senators to every state regardless of population.  That‘s not majority rule.

MATTHEWS: OK, thank you very much, Senator Orrin Hatch of Utah and Senator John Corzine of New Jersey.  We‘re out of time, gentlemen.

How is this unprecedented political pressure affecting the rest of the business of the government?  More on the fight over the filibuster with former Senator John Breaux of Louisiana and C. Boyden Gray when we return.

This is HARDBALL only on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL.  As we have said, the debate has begun on President Bush‘s judicial nominees and the fight over the filibuster.  Moderates are scrambling to put together a compromise.  But what is to compromise?  Republicans want the Senate to vote on all court nominees, up or down.  The Democrats refuse to do that. 

By the way, a new NBC News poll gives some lawmakers pause.  Only 33 percent of people approve of the job that Congress is doing while a majority, 51 percent disapprove.  And when asked:  Which outcome do you prefer in the 2006 congressional elections? 40 percent said a Republican-controlled Congress, 47 percent said a Democratic-controlled Congress.  I‘m here with two veterans of the D.C. wars: former Senator John Breaux, Democrat of Louisiana who is now a senior partner at Patton, Boggs—and Breaux law firm; and C. Boyden Gray, who was White House counsel to former President Bush and has been advising Senate Majority Leader Bill Frist in the battle over judicial nominees.

Senator Breaux, a personal question.  Wouldn‘t you like to be a senator right now in the middle of all of this fighting?

JOHN BREAUX, FMR. DEMOCRATIC SENATOR:  I would love to be in the middle trying to broker a deal of some sort.

MATTHEWS:  OK.  What‘s the deal?

BREAUX:  Well, I think somebody, a group of moderates need to walk on the Senate floor and yell as loud as they can, “stop the insanity, let‘s reach an agreement.” The problem is that you have all these outside group on both sides preventing the Senate of trying to reach a legitimate compromise.  And I think there are six Republicans and six Democrats who are trying to work together to say, look, the six Republicans would not vote for changing the rules if the six Democrats agreed that they would only filibuster judges in extraordinary circumstances.

MATTHEWS:  Who says when it is extraordinary?

BREAUX:  Well, individual senators would have to make that decision.

MATTHEWS:  In other words, those senators are going change their mind in the way they‘ve been behaving because the Democrats as a party, your party, has been filibustering, and your party has been holding up Priscilla Owen, and Janice Brown, are they saying that they‘re going to change their ways in order to avoid a fight?

BREAUX:  Chris, both sides.

MATTHEWS:  No, really, will the Democrats admit that they‘re going to change their ways and stop filibustering?

BREAUX:  I think there is a significant number of Democrats who would say we would not filibuster just regular nominees, but only in extraordinary circumstances, that‘s different.

MATTHEWS:  In other words, change their party position from what it is.

BREAUX:  It would be changing their individual positions.  And I think that‘s significant.  But they would not go for a rules change.  The filibuster would still be protected.

MATTHEWS:  Would Senator Frist accept this or still go for a vote?  If they cut a deal whereby the moderates said, we promise not to misuse the filibuster except in what we think are extraordinary circumstances, would he buy that?

C. BOYDEN GRAY, FMR. BUSH 41 WHITE HOUSE LAWYER:  If they let all of these appellate nominees through with no filibuster.

MATTHEWS:  All of them through.

GRAY:  . there‘s no way to make a rules change.

MATTHEWS:  Oh, in other words, if the Democrats lay down, the Republicans can‘t hit them.

GRAY:  They can‘t hit them.

MATTHEWS:  But then again, the Democrats are not offering to lay—are the Democrats offering the moderates to let all these nominees go through?

BREAUX:  I think it speaks for itself.  They‘re saying, look, we are not going to use the filibuster just on an ordinary day-to-day operation on a judge, only in extraordinary circumstances would we do that.  And I think that‘s significant.  But the Republicans would back off trying to change the rules in the middle of the game.  Both sides have come to this without totally clean hands.  Republicans, when I was in the Senate wouldn‘t let a lot of judges even get out of committee, wouldn‘t give them a hearing.

MATTHEWS:  But do you think those six are reliable on the Democratic side that they wouldn‘t try to filibuster a Supreme Court nominee this summer?  Would you trust them if you‘re a Republican?

BREAUX:  Well, I think there has to be trust on both sides.  That‘s how the Senate operates.  The Senate used to operate on trust.  A person‘s word was his bond.  And I think they have got to get back to that, otherwise both sides are going to go off...

MATTHEWS:  OK.  You raised the problem of why it isn‘t that way.  You‘ve got these damn pressure groups, left and right, who don‘t care about the traditions of the Senate or the honor of being a United States senator.  They just want 100 percent their way.  You‘ve got Ralph Neas on one side, James Dobson on the other, and they want 100 percent wins or they can‘t raise money in their organizations.

BREAUX:  I totally agree.  That‘s one of the problems why Bill Frist and Harry Reid have not been able to sit down in a room by themselves and work a deal. 

MATTHEWS:  Are they free to make deals or are they controlled by the interest groups?  Big question.

BREAUX:  Well, the pressure they‘ve got.

MATTHEWS:  Are they free to make decisions or are they owned by these left- and right-wing groups?

BREAUX:  Well, they‘re certainly not owned by them.  But both sides are feeling incredible pressure, which is influencing their decisions.

MATTHEWS:  Let me ask you this in a more neutral way.  And I ask you this too.  If they got to vote in private, these senators, would they be free of these interest groups?

BREAUX:  Oh, absolutely, sure. 

MATTHEWS:  Well, that‘s what I‘m saying, they‘re controlled by the interest groups.

BREAUX:  They‘re influenced.

MATTHEWS:  Well, why can‘t they vote in public the same way they vote in private if they‘re not in control?

BREAUX:  Well, that‘s true on every issue that comes before the Congress, whether it‘s an energy bill or a health bill, outside groups are going to try and.

MATTHEWS:  Is it your sense that these guys could vote differently if they were voting in private?

GRAY:  I think they would.  I think the change would be more on the Democratic.

MATTHEWS:  In other words, they are under the control of a bunch of people that financed their campaigns.

GRAY:  I believe that‘s much more.

MATTHEWS:  It‘s a pretty rotten system, isn‘t it?

GRAY:  Much more true, however, of the Democrats.

MATTHEWS:  That a bunch of lefties and righties control and 70 percent of the American people are somewhere in the middle.

GRAY:  Chris, it‘s much more of his party than mine.  I do not think the Republicans have the same level of control that Ralph Neas and the other interest groups have on the Democratic Party.

MATTHEWS:  You don‘t think Dobson and company are demanding their pound of flesh for all the help they gave the president last November?

GRAY:  I think Dobson is a latecomer into this fight, Chris.  He has only gotten involve in the last month or two.  But this thing has been going on for a long time, this filibuster, two (ph) years.

MATTHEWS:  OK.  We‘re going to come back and cover this.  I have to say, I love this fight.  John Breaux and C. Boyden Gray, back in a moment.  Two pros.

And is the White House putting inordinate pressure on Newsweek to start writing the magazine their way?

And later this week, Janice Karpinski, the Abu Ghraib former commander will be here, and I‘ll ask her about the military policy over the handling of detainees and religious and cultural humiliation.  Is that ever permitted?  Is it ever ordered by the military.

This is HARDBALL only on MSNBC.

(COMMERCIAL BREAK)

MILISSA REHBERGER, MSNBC ANCHOR:  MSNBC keeps you up-to-the-minute every 15 minutes.  Hi, everyone.  I‘m Milissa Rehberger.  Here‘s the latest. 

A federal judge whose husband and mother were killed at her suburban Chicago home in February by an angry litigant said today that judge‘s lives are endangered by extreme rhetoric from politicians and public figures.  Judge Joan Lefkow said inflammatory language used by some members of Congressman only incites angry litigants to take revenge. 

Michael Jackson‘s 12-year-old cousin testified today that he saw the boy who has accused Jackson of molestation masturbating as he watched naked women on television.  Rijo Jackson also told the jury he saw Jackson‘s accuser steal money and wine at Jackson‘s Neverland Ranch. 

And a judge in San Jose, California, refused to lower the $500,000 bail for the woman who police say falsely claimed that she found a finger tip in a bowl of Wendy‘s chili.  Meanwhile, a Pennsylvania woman said the fingertip belonged to her son and that he gave it to Anna Ayala‘s husband to settle a $50 debt. 

You‘re up-to-date.  Let‘s go back to HARDBALL.

MATTHEWS:  Welcome back to HARDBALL.

Now for more on the fight over the judicial nominee with the Former Senator John Breaux of Louisiana and C. Boyden Gray, who was White House counsel for former President Bush, and has been advising Senate Majority Leader Bill Frist in the battle over judicial nominees.

Gentlemen, isn‘t this fight, for people who are not political aficionados, really about the kind of country we want to live in, as viewed by the Supreme Court?  Isn‘t this over who‘s going to replace Rehnquist if he steps down, the chief justice? 

C. BOYDEN GRAY, FORMER WHITE HOUSE COUNSEL:  I think it‘s that, but it‘s also the appellate courts that have much more power today because of the growing caseload of the federal judiciary.  What the Republicans want to do is name judges who will not legislate from the bench but will construe the law as it has been passed or adopted by the Constitution.  What the Democrats want to do is make law.  They‘ve been very, very candid about...

MATTHEWS:  Give me an example.  Well, Massachusetts court system, which found the right of gay people to get married somewhere in their Constitution, was a Republican appointee.  Who are the Democratic appointed judges who have found constitutional rights that weren‘t there?  The Lawrence decision? 

GRAY:  The Lawrence decision.

MATTHEWS:  Where you can‘t have laws against sodomy?

GRAY:  Right, but there are a whole range of cases.  The Pledge of Allegiance, prayer in school, school choice. 

MATTHEWS:  But what judge would find for public school prayer? 

GRAY:  Well, look, I think that the break point is, is that the Democrats look—at least the interest groups.  They‘ve said this on public record, that now that the Democrats have lost the House, the Senate, and the White House.  But the only place that can get new rights created is in the courts.  That‘s why they want a veto over who gets on the courts.  They want the courts to legislate.

MATTHEWS:  Who said that? 

GRAY:  Man Arris (ph) said it several times.  Ralph Nader has said it several times in debates in with... 

(CROSSTALK)

MATTHEWS:  So they see it as their last bastion? 

GRAY:  As their last bastion.

MATTHEWS:  And your side is accused—speak, Senator.  A lot of people think that the Republican right feels they‘re about to have a complete take-over of the U.S. government.  They‘ve got the House, the Senate, the White House.  Now they want the courts.

JOHN BREAUX, FORMER LOUISIANA SENATOR:  I think it has everything to do, Chris, with the Supreme Court.  They‘re desperately afraid that Democrats may filibuster a Supreme Court chief justice nominee.  And they don‘t want that to happen.

(CROSSTALK)

MATTHEWS:  Would you worry, if you were a Republican, they might do it? 

BREAUX:  Well, I would like to have it my way all the time and under all circumstances, but that‘s not how the rules have been for 200 years.  I mean, the right to filibuster has been there.

MATTHEWS:  Nobody has ever filibustered a popular or a majority-supported Supreme Court nominee, ever. 

BREAUX:  I think they‘ve been filibustered, but none, they would argue, that had a majority vote and stopped them as a result of that.  That‘s what I think Republicans are afraid of. 

I don‘t think you have to change the rules.  Normal members can sit down and work this out, if they could get rid of all the interest groups on both sides, reach an agreement.  I think the group of six, six Republicans and six Democrats, are making real progress.  I think they can come up with an agreement that‘s going to save the institution of the Senate. 

MATTHEWS:  I hear that your party‘s worried that, if you don‘t get this rule changed, that you‘re going to have to have the president submit a court nominee for the Supreme Court, and maybe other vacancies down the road, maybe O‘Connor leaves or someone else leaves for other reasons, that is sort of a cupcake, someone that‘s just so weak on ideology and belief that you can get 60 votes. 

GRAY:  Chris, if the compromise is to let the current nominees go through, I don‘t think the president would hesitate to nominate who he would want, because he would nominate someone out of the same mold. 

MATTHEWS:  Who could get 51 votes. 

GRAY:  Who would get 51 votes.  There‘s no way the Democrats could stop any because he would be or she would be out of the same mold as the ones that he‘s already nominated and are now being filibustered. 

There‘s nothing radical about these.  You know, Cass Sunstein, the leading Democratic consultant—consultant of the Democrats; he‘s not a Democrat himself—has found an extraordinary consistency between the judges that have been confirmed from Reagan, Bush I, and Bush II.  The nominees that are now out there are no different.  They‘re all the same. 

MATTHEWS:  Are you afraid that the Democratic minority would even filibuster a nominee of the prestige of Antonin Scalia if he were put up for chief? 

GRAY:  I don‘t think they would filibuster a...

MATTHEWS:  You don‘t think they would? 

Do you think they would? 

BREAUX:  I probably don‘t think so.  I think a lot of people would disagree with him, but they all respect his intelligence...

(CROSSTALK)

MATTHEWS:  He passed 98-0, didn‘t he, the first time through as associate judge?

BREAUX:  He did.  But there‘s a big difference being nominated as chief justice of the Supreme Court than a justice. 

MATTHEWS:  Would Clarence Thomas get filibustered today? 

BREAUX:  I probably think he would not.  I mean, he‘s very conservative, but I don‘t know that he would be filibustered.

MATTHEWS:  If he were put up for chief, would he be filibustered? 

BREAUX:  For chief, he might be. 

MATTHEWS:  Do you think he expect he would be?

GRAY:  Well, that doesn‘t make any sense.  But this is the key point.  If the filibuster were truly available, as an historic matter, they would have filibustered him and spared the country a lot of nonsense over his nomination, because we never had 60 votes. 

John can tell you this.  We never had 60 votes.  And the fact that they never even hinted that they would filibuster meant they knew they couldn‘t do it. 

MATTHEWS:  So the rules have changed? 

GRAY:  The rules challenged. 

MATTHEWS:  Do you agree with that, that Democrats have changed the rules by using the filibuster in judicial nominations?  Haven‘t they, for the first time now, with these seven judges, made it a habit? 

BREAUX:  They used the filibuster in ways that it has not been used before.  But the Republicans...

MATTHEWS:  Why? 

BREAUX:  ... have both sides—Republicans stopped it in committees. 

They weren‘t even going to give a (UNINTELLIGIBLE) vote.

MATTHEWS:  I think the Democrats started this fight.  I think they did. 

BREAUX:  Well, yes, but you can‘t deny that Republicans wouldn‘t even get judges out of the committee.  You wouldn‘t even give them a vote, rather than filibuster it. 

GRAY:  They did the same thing to President Bush.  President Bush had 54 votes. 

(CROSSTALK)

BREAUX:  And that‘s why it calls for a compromise that‘s legitimate.

MATTHEWS:  You know, I think Democrats should win more elections. 

That will solve their problem. 

BREAUX:  Well, you don‘t have to change the rules to do that. 

MATTHEWS:  Well, just win a few more Senate seats and you won‘t have to worry about being a minority anymore.  Anyway, thank you, John Breaux.  I know you miss being there. 

Anyway, C. Boyden Gray is advising Senator Frist. 

When we come back, is the Bush administration crossing the line by asking “Newsweek” magazine to, quote—catch this—“help repair the damage,” close quote, that they committed.  I‘ll ask journalist Mike Allen of “The Washington Post,” Chuck Todd of “The Hotline,” and Deborah Orin of “The New York Post.”

And don‘t forget:  Sign up for HARDBALL‘s daily e-mail briefing.  Just log onto our Web site at hardball.msnbc.com.

(COMMERCIAL BREAK)

MILISSA REHBERGER, MSNBC ANCHOR:  MSNBC keeps you up-to-the-minute every 15 minutes.  I‘m Milissa Rehberger.  Here is the latest. 

CENTCOM Commander General John Abizaid said he can‘t confirm or deny reports that Iraqi terror leader Abu Musab al-Zarqawi recently met with insurgents in Syria.  Meanwhile, a new audio tape allegedly by Zarqawi defends the killing of fellow Muslims as part of the cost of a holy war. 

And the commissioners of pro baseball, basketball and hockey told Congress today they want to toughen their steroid policies, but only baseball Commissioner Bud Selig gave tentative support to proposed legislation that would implement a steroid policy covering all sports.  Selig said he would support the legislation only if the players union did not agree to a tough steroids policy on its own. 

Now back to HARDBALL with Chris Matthews.

MATTHEWS:  Washington is a battle zone today from the political fight over the filibuster in the Senate to “Newsweek” under attack by the White House for its retracted report on the desecration of the Koran.  But first, we go to David Shuster for the latest on that war between the White House and “Newsweek” magazine.

(BEGIN VIDEOTAPE) 

DAVID SHUSTER, MSNBC CORRESPONDENT:  After saying on Monday the “Newsweek” retraction was only a good first step, on Tuesday, presidential press secretary Scott McClellan urged “Newsweek” to write about ways the U.S. military respects the Koran.  And with that, the briefing room erupted. 

TERRY MORAN, ABC NEWS CORRESPONDENT:  Do you think it‘s appropriate for you at that podium speaking with the authority of the president of the United States to tell an American magazine what they should print? 

SCOTT MCCLELLAN, WHITE HOUSE PRESS SECRETARY:  I‘m not telling them. 

I‘m saying that we would encourage them to help...

MORAN:  You‘re pressuring them. 

MCCLELLAN:  No.  I‘m saying we would encourage them.  Look, this report caused serious damage to the image of the United States abroad.  And “Newsweek” has said that they got it wrong. 

SHUSTER:  “Newsweek” is not the first news organization to get squeezed by this White House or others.  In 1971, the “New York Times” and then the “Washington Post” began publishing military documents about Vietnam known as “The Pentagon Papers.”  The Nixon administration tried to stop publication, calling the news organizations anti-American, and then taking them to court. 

The Supreme Court ruled in favor of publication, but academic polling and analysis found more people heard Nixon‘s charges than read the contents of what the newspapers published. 

In 1982, CBS ran a report alleging that former Army General William Westmoreland manipulated statistical reports during the Vietnam War. 

WILLIAM WESTMORELAND, FORMER U.S. ARMY GENERAL:  My family and I were shocked and dismayed. 

SHUSTER:  Westmoreland sued CBS.  And though the case was eventually settled out of court, Westmoreland brought more scrutiny to CBS than CBS brought to him. 

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  Thank you all for coming. 

SHUSTER:  And before the last election, when President Bush was facing questions about his National Guard records, Dan Rather relied on documents that proved to be bogus. 

DAN RATHER, CBS NEWS ANCHOR:  I want to say personally and directly, I‘m sorry. 

SHUSTER:  By railing against Dan Rather, the Bush campaign put tremendous pressure on CBS and highlighted questions about journalistic practices.  Thanks in part to the criticism of CBS, Dan Rather left the anchor chair two months ago.  And the one outlet that Rather still had at CBS, “60 Minutes II,” that show today was canceled. 

Meanwhile, the White House pressure on “Newsweek” continues.  Today, the administration called on the magazine to issue retractions on Arabic TV. 

I‘m David Shuster for HARDBALL in Washington. 

(END VIDEOTAPE)

MATTHEWS:  Thank you, David Shuster.  We‘ll get to the White House‘s relationship with the press in a moment with the “New York Post‘s” Deborah Orrin and Chuck Todd of “The Hotline.”  But let‘s begin with the “Washington Post‘s” Mike Allen. 

What do you know about a compromise involving this big filibuster fight next week? 

MIKE ALLEN, “THE WASHINGTON POST”:  Well, Chris, there‘s a bunch of meetings going on about that.  It‘s interesting.  Some of the moderates are making a show of their meetings to show that they‘re trying to reach out. 

But Chris, it‘s the Democrats‘ operating belief that Republicans would not have brought this up if they didn‘t have the votes.  Now, as I‘ve talked to Republican senators, the leader, Senator Frist of Tennessee, he‘s been guaranteed he has the votes. 

But they all were a little conditional.  They all have to do with the conditions or the time, how much effort has been made at compromise, how intransigent Democrats have been. 

So what we‘re told today is likely Friday leader Frist and some other Democrats will file to cut off debate.  As you know, they like one session in between.  So Monday, Tuesday, Wednesday, almost certainly Tuesday, will be the climactic vote.  And Republicans feel very good about where they are. 

They say everything‘s moving in the right direction, but they said they won‘t be sure, because you know these senators who are in the middle.  They‘re very stubborn.  They‘re very protective of their prerequisites.  And they want to know the exact date at that time.  So there‘s no guarantees here. 

MATTHEWS:  Well, it seems to me a minimal requirement on the Democratic side of any compromise is to allow an up-or-down vote on the Supreme Court nominee this summer, if there is one.  Are they willing to give that to the Republicans, the six members who are compromising? 

ALLEN:  Well, they‘re discussing that.  But the White House is saying that the only—that there‘s no compromises acceptable that does not include an up-or-down vote on every judge.  And that doesn‘t leave a lot of room to maneuver. 

MATTHEWS:  Right.  That sounds like a surrender flag for the Democrats, isn‘t it? 

ALLEN:  Democrats are talking today more and more about what they‘re going to do afterwards.  As you know, they‘ve pulled back from the original plan to shut down the chamber.  And now, in this sort of nuclear winter, as people up here are calling it, they‘re talking about doing two things.  One is, work to the rule.  That is, be an uncooperative minority, require a vote on everything that they can require a vote on.  And the other thing is to bring up their bills, minimum wage, Patients‘ Bill of Rights, stuff like that. 

MATTHEWS:  Let me, while you‘re here—I don‘t want to let you Bogart this thing.  But I have got to hear from you because you‘re part of the “Newsweek”-“Washington Post” family, if you will, although it‘s probably not a happy family this week. 

“Newsweek,” do the people at the organization, the “Washington Post”-“Newsweek” organization, believe that the White House has gone beyond what it should, in not only criticizing “Newsweek” for getting that wrong about the Koran being flushed down the toilet, but now dictating terms, telling “Newsweek” what the magazine has to do proactively to make up for it? 

ALLEN:  Yes, well, you saw that question at the briefing yesterday.  One reporter said to Scott McClellan, with respect, when did you become the editor of “Newsweek”?  But the White House is free to ask or demand anything they want.  Journalists don‘t have to do it.

“Newsweek” has said that they‘re continuing to report this story.  The Pentagon called them on Friday to complain about this item, to call it into questioning.  On Saturday, “Newsweek” rechecked with its source.  On Sunday, it had a long story and editor‘s note on the Web. 

So what “Newsweek” has said is they‘re trying to be transparent about this.  They thought that they had two sources for this.  And they regret any consequences there might have been to this. 

You saw Republicans up here seizing on it, saying that they should—some House Republicans said you should cancel your subscription to “Newsweek.” Democrats today are pushing back on that.  Democratic House Leader Nancy Pelosi of San Francisco said today that these charges were only credible because of what had gone on in Abu Ghraib.  And they‘re using this as an opportunity to renew their call for hearings about that. 

MATTHEWS:  Mike, hold on there for a second. 

Let me ask you, first of all, Deborah, do you think “Newsweek” has to come up with a mea culpa cover this week for its international editions?  Right on the cover say, “We Were Wrong”?

DEBORAH ORIN, “THE NEW YORK POST”:  I think it would probably help them to do it.  And I think Mike is basically right.  The White House can ask whatever it wants. 

The fact that the press seem to be circling the wagons so quickly, I think, gives you a pretty good idea that reporters sometimes get awfully defensive.  You know, we can dish it out, but we don‘t always seem so able to take it. 

MATTHEWS:  Chuck, do you think they have got to have a big headline on the front page of their magazine next Monday, around the world... 

(CROSSTALK)

CHUCK TODD, “THE HOTLINE”:  Yes, but I think it‘s a financial reason.  I mean, the fact is we‘ve learn this.  The conservative right in this country will pull its money.  And guess what?  That will hurt them in advertising. 

MATTHEWS:  You mean, pull the advertising. 

TODD:  Absolutely.  No, so I think they have to do it for financial reasons.  Forget any of the—whether they believe or not their story was right, because you do get feeling they‘re not 100 percent sure their story was wrong.  They just now know their source backed out.

MATTHEWS:  Has this done more damage than the other scandals of recent history? 

ORIN:  Well, it has dead bodies.  Sure, it has.  And you know, if they

really don‘t think their story is wrong and they yanked it because of

political pressure, that says pretty bad things about “Newsweek.”  I mean,

I hope they only yanked it because they thought it was wrong, not because -

·         and when you look at it, let‘s be honest. 

They had one source, only they didn‘t have any sources.  So this isn‘t even a one-source story, it‘s a zero-source story.  And what they‘re doing now is saying, “Well, we can‘t really retract because it might be true,” which seems to say that the standard for retraction is higher than the standard for putting it out there in the first place, which is ridiculous.  They need to cut their losses. 

TODD:  It makes the White House very happy because it calls into question the media.  And whenever they do that, then any criticism story...

MATTHEWS:  OK.  And by the way, have you looked at the latest NBC-“Wall Street Journal” poll on the war?  It‘s so unpopular now a majority of people think it wasn‘t worth it.  I think they‘re looking perhaps for a little opportunity to spread the blame on this.  And they have a right to do it here.

Mike Allen, I know you have to leave.  Thank you very much for joining us.  Mike Allen of the “Washington Post.” 

We‘ll be back with Chuck Todd and Deborah Orin in just a moment.  By the way, Hardblogger is our political blog Web site.  And you can find it at hardball.msnbc.com.

(COMMERCIAL BREAK)

MATTHEWS:  I‘m back with Chuck Todd and Deb Orin. 

We just got this hot note in late this afternoon.  General Richard Myers, of course chairman of the Joint Chiefs of Staff, speaking on Capitol Hill today with Secretary Rumsfeld and General Abizaid said that the “Newsweek” magazine article, which of course accused the U.S. military of flushing a copy of the Koran down a toilet, quote, “probably fueled the recent protests in Afghanistan”—this is General Myers here—and said “it‘s not helpful when you have an inaccurate reporting that incites people to violence.”

By the way, Myers earlier had said that he thought that these acts of violence over there were already planned before the “Newsweek” piece came, but now he‘s saying it hurt. 

ORIN:  Well, I mean, this is the official line, which is some of these protests might have taken place anyway, but they were much worse because of the article, since people were waving the article and using the article.  I don‘t think there‘s much doubt that the article played a role. 

MATTHEWS:  You think the problem with sourcing, not enough sourcing, not enough back-up? 

ORIN:  Well, I think there‘s several issues here.  One is not enough sourcing.  You don‘t go beyond it.  It wasn‘t true enough to put in the magazine.  So we don‘t have to get into the issue of whether it should have been in the magazine anyway.  It wasn‘t true.  So forget all the hypotheticals. 

MATTHEWS:  But if a high-level official, who has been feeding you good stories for years, tells you something, what do you think with it? 

ORIN:  Well, I mean, we all have it as reporters, high-level officials we know feed us stuff.  And it‘s always right.  And then one day, it‘s dead wrong.  And if you didn‘t do the proper checking, you get caught.  And that‘s what happened to the... 

MATTHEWS:  And running by that other official wasn‘t good enough? 

ORIN:  Well, the other official, apparently—you know, part of the problem is, of course, we don‘t know who the officials are.  But you know, you can always find a munchkin at the Pentagon.  And if the munchkin—if the Pentagon doesn‘t know about it... 

(CROSSTALK)

MATTHEWS:  ... say, you know, is this a munchkin?  A good editor‘s going to say, “How high up is this person?” 

ORIN:  That‘s right, because they are now saying this person didn‘t know that much about it. 

(CROSSTALK)

MATTHEWS:  Chuck, this has got to—this is a radioactive story.  This is a story that says the United States is systematically, in the worst possible way, humiliating the religion of the people, of a billion in this continent, in this world, who are on the other side of this fight, in a fight we claim is not about religion. 

Do you think the editor should have risen the standard beyond one source? 

TODD:  Well, it‘s not just that.  They‘re question is, is this something even worth putting the magazine? 

MATTHEWS:  True or not?

TODD:  I think that should be the debate here.

MATTHEWS:  John Podhoretz in your newspaper raised that question the other day, and I like Podhoretz.

TODD:  Even if it was true, the question is, should they have put it in the magazine? 

MATTHEWS:  You mean it‘s too hot to handle. 

TODD:  Too hot, and it‘s like, do you put people‘s lives in the way? 

And that should be the debate here, not the sourcing of Michael Isikoff. 

MATTHEWS:  Do you think...

(CROSSTALK)

TODD:  The fact is Michael Isikoff, we all know, is one of the best reporters in this town period, hands down.  He broke a lot of stories. 

MATTHEWS:  He‘s amazing.

ORIN:  He‘s a terrific reporter, but that doesn‘t mean he didn‘t get it wrong.

TODD:  And the thing is reporters are being held to a doctor‘s standard.  If you‘re not 100 percent correct, the patient dies.  And we‘re being held to this, so—OK, one out of 1,000 of his sources have gone wrong.  So I think we‘re beating him Isikoff too much. 

The question is, should it have been in the magazine at all?  And that should be the debate. 

MATTHEWS:  Let me ask you a question.  Deborah, you‘re good at this.  It‘s a big tabloid question.  How big—and of course, you work for a tabloid.  Nothing wrong with that. 

How big a story—is this one of the biggest 10 stories of the year, this “Newsweek” story?  Is this a big story?  Will it go in the yearbooks? 

TODD:  No.

ORIN:  No, I think it‘s one of the 20 biggest.  I don‘t think it‘s one of the 10 biggest.

TODD:  I say it‘s not top 10.

(CROSSTALK)

MATTHEWS:  It‘s not going to go down in the iconic history of our country? 

TODD:  No, not at all. 

ORIN:  No, but, you know, one other thing, Chris.  “Newsweek” itself got banned in Pakistan a few years ago because of an article on the Koran.  So it‘s not like they didn‘t know that this was a sensitive issue. 

MATTHEWS:  OK, thank you very much.  Chuck Todd of “The Hotline,” Deborah Orin of “The New York Post,” which I read religiously.  I hope that‘s not a bad word.

Tomorrow night on HARDBALL, will the “Newsweek” retraction and the Bush administration reaction put a chill in aggressive reporting on the war on terror?  Among our guests, NBC‘s Andrea Mitchell, journalist Linda Ellerbee, and Court TV‘s Fred Graham on the fallout on the press.  Friday, former Abu Ghraib commander Janis Karpinski. 

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

END

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