updated 5/20/2005 9:03:51 AM ET 2005-05-20T13:03:51

Guest: Ben Nelson, Sam Brownback, David Frum, Linda Ellerbee, Fred Graham, Andrea Mitchell

CHRIS MATTHEWS, HOST:  Are the Republicans dictating surrender terms in the filibuster fight?  Let play HARDBALL.

Good evening.  I‘m Chris Matthews. 

The top Senate Democrat accuses President Bush of trying to rewrite the constitution.  A Republican leader charges Democrats with obstructionism, and blacks in Congress reversed history and now defend the filibuster.  And some in the GOP Congress are urging people to cancel their “Newsweek” subscriptions, calling the magazine‘s report on the Koran criminal. 

But first we begin with Sam Brownback and Senator Ben Nelson, a Democrat who‘s been trying to broker a deal that would preserve filibusters for extraordinary circumstances. 

I want to go right now to Senator Nelson.  Do you believe there could be a compromise that would allow some use of the filibuster in judicial nomination case? 

SEN. BEN NELSON, (D) NEBRASKA:  I think it‘s possible.  We‘re talking right now, a group of Republicans and Democrats, looking for a way to be able to do this so that judges can get up or down votes but at the same time, extraordinary circumstances could still involve the use of the filibuster. 

MATTHEWS:  What would be an extraordinary circumstance?  Give me an example if you can, senator. 

NELSON:  Well, it‘s easier to give me one from the standpoint that hasn‘t been.  It‘s going to be up to the discretion and judgment of each senator. 

But for example, let‘s take Priscilla Owen.  I‘m likely going to vote against Priscilla Owen on an up or down vote, but I don‘t look at her as an extraordinary situation where I would vote against the filibuster vote for cloture.  Because in the past, I voted for cloture to get an up or down vote on her nomination. 

MATTHEWS:  What that when the Democratic leader says it‘s time not to vote cloture?  We want to continue this debate.  What happens when Chuck Schumer and Barbara Boxer come at and you say stick with the party?  What are you going to do then.  And they say this is an extraordinary case.  This people is a whack job.  You can‘t put them on the court.  What do you say then? 

NELSON:  Well, so far I vote against—I voted for cloture 21 out of 22 time.  If I can trust Orrin Hatch‘s count.  And the only time that I haven‘t was in the case of one judge when I couldn‘t get a file or a document I was trying to get in order to decide whether to vote for cloture or not.  So, I‘m just not going to be persuaded by those kinds of requirements or those kinds of requests.

MATTHEWS:  Senator Brownback, it seems to me that your leader, Senator Frist, said when he began debate the other day, that he wants a decisive outcome in this debate.  He wants it clear coming out of this debate, no more filibustering.  Up or down vote on all court nominees, simple.  Is he going to settle for less than that?

SEN. SAM BROWNBACK, ® KANSAS:  I don‘t know that he will at this point in time.  And I appreciate what Senator Nelson and others are doing in trying figure some way out through this. 

But Chris, we‘ve been in this since 2001.  And we‘ve had this filibuster going on and being used against Priscilla Owen and others for years now.  And I think the leaders are saying, I‘ve wrestled with this thing for a long period of time.  It‘s never been used in the history of the Republic.  And it is time to resolve this and resolve it before you get to a Supreme Court nominee that you now are raising the standards up to 60 votes to get somebody on to the Supreme Court.  And that‘s not in the constitution and it shouldn‘t be what we do. 

MATTHEWS:  Senator Nelson, I understand by talking to some of the people on Capitol Hill today, one very well placed person, a staffer, not a senator but a staffer, that the Republicans want to end the filibuster for judicial nominations, especially in regard to the Supreme Court nominees coming up this summer, perhaps, to replace Justice Rehnquist at the chief justice job. 

They don‘t want any questions about the Republicans are insisting no more filibusters.  We want an up or down vote on whoever the president endorses for Supreme Court. 

NELSON:  Well, I‘m not...

MATTHEWS:  Isn‘t that the position that the Republicans are taking in your negotiations right now? 

NELSON:  No.  That‘s not the position they‘re taking.  They‘re recognizing that there could be an extraordinary circumstances against a particular nominee.  And I think many Republicans, I don‘t know that there‘s enough, but many Republicans don‘t want to see an up or down vote with 51 on every case.  They also think that there‘s a reason to have a filibuster rule, if not for this set of circumstances, with this administration and this majority, but in the future when the roles have been reversed and others are in the majority and there‘s somebody else in the White House. 

MATTHEWS:  Here‘s what I don‘t understand.  Why should the Republicans trust Democrats to discriminate in cases of, only extraordinary cases.  And you believe they would be quite willing to push through some terrible appointment with 51 votes.  I mean, why do you think they wouldn‘t reject a candidate who is extraordinarily bad? 

NELSON:  They‘re likely to. 

MATTHEWS:  Then why are you worried about it?  Why do you need to filibuster? 

NELSON:  Well, I think that‘s on the up or down vote.  My sense is that there will be a times, likely times, when some of the Republicans would want to vote against one of these nominees.  But I think everybody is looking beyond this particular administration, this particular majority, this set of circumstances right now to the future. 

After all, whether you agree with the use of the filibuster or not, I think—the way it‘s been used—I think most people think the weighted majority is the better way to run a Senate in this bicameral arrangement. 

MATTHEWS:  Is it your understanding, Senator Nelson, that the Republicans are negotiating with you, those six Republicans matching up to the six moderate Democrats, have the freedom to make a deal they want to, or they have to check it Frist? 

NELSON:  I don‘t know.  They haven‘t said.  My sense is that each side is keeping its leadership aware of the discussions.  Not looking for a yes or no, but keeping them apprised of what‘s going on.  I‘m sure they‘re doing it as I am doing it, with Senator Reid and the other members of the leadership. 

MATTHEWS:  Do you have to get approval from the Democratic leadership for whatever deal you cut? 

NELSON:  No. 

MATTHEWS:  You don‘t.

Let me go over to Senator Brownback and you about the White House

role.  We know the vice president stands ready right now to break a tie in

favor of ending the filibuster.  We know that he stands ready to rule if

the filibuster isn‘t in order when you come to judicial nominations, that

he could call it a dilatory situation and to just stop debate and call for

·         and basically make a ruling from chair, overruling the parliamentarian. 

How about the president?  Do fellow on the Republican side, you member

·         do you believe the president should get his way?  He wants a clear cut up or down vote on whoever he sends up for the court.  Can you deliver that for him?  Can you do it now?  Do you have the votes? 

BROWNBACK:  Well, I don‘t know on that, Chris, whether we do or not.  And that‘s part of the debate that‘s going on right now.  That‘s part of the discussion that Ben Nelson and the group is taking place.  And that‘s what everybody is talking about.  And I don‘t know where it is. 

I do think the president deserve as vote up or down on his nominees.  And if people say these are extreme cases, vote against them.  I don‘t think he‘ll get, if it is an extreme case, I don‘t think you‘re going to get 51 senators to support somebody to go on the circuit court or the Supreme Court of the United States.  But it shouldn‘t be a 60 vote margin. 

And Chris, you‘ll remember in the last election cycle, one of the lead things the president talks about was his judicial appointments.  And this was one of the great applause lines that he got was we should appoint judges that would enforce the law and the constitution, not rewrite it.  And this is a big issue to the public.  And it is time to resolve it.  And it should be by a majority vote, not a super majority. 

MATTHEWS:  Senator Nelson, the Democrats also appealed to people in the suburbs, especially moderate pro-choice women voters, for example, and said we can‘t allow the Supreme Court to be conservative or right wing.  That‘s sometimes the rhetoric.  The voters still went out and voted in your state and others, they voted for this president.  Why shouldn‘t he get his court picks? 

NELSON:  Well, I don‘t think—if you look at what I‘ve done, I‘ve voted for cloture to get up or down votes.  But by the same token, I think it is very clear that people have not said that they don‘t want to have the filibuster available for unusual circumstances.  If you take a look at the nationwide polling, there‘s a belief that this time honored tradition to avoid having a 51 margin of, in term of the majority, run this country on the Senate side, like they do on the House side.  I think everybody understands that the system works pretty well right now as long as you don‘t hold up the judges. 

MATTHEWS:  Let me ask you to speak for the six members on the moderate Democratic side who are part of this negotiation.  Do you think any of your six members would vote to declare Clarence Thomas, Antonin Scalia, Robert Bork, any one of three of them extraordinarily bad and they shouldn‘t deserve an up or down vote.  I‘m trying to find out what extraordinary means. 

NELSON:  Well, I think it still means whatever individual wants, because we‘re not going to give it up by agreement.  No, we haven‘t talked about any of those individuals.  I haven‘t even thought about what I would do in each and every one of those cases.  But I would have to take them one at a time. 

MATTHEWS:  Do you mean there‘s a possibility you would declare Judge Scalia an extraordinary case and vote against cloture? 

NELSON:  Probably not.  But I haven‘t vetted him.  I haven‘t seen all the papers.

MATTHEWS:  He‘s been on the court for years now.  What do you mean you haven‘t vetted him?  You know who he is.  It‘s Antonin Scalia.  Do you think he‘s an extraordinary example of a court nominee who doesn‘t deserve an up or down vote?  Yes or no.

NELSON:  No, I don‘t believe that he‘s in that category.  But I have to tell you, I haven‘t looked at everyone of his decisions.  I think he probably is—will pass muster with virtually everybody.  Maybe he would get almost unanimous approval. 

But the point is, you just don‘t want to give away your judgment, you decision.

MATTHEWS:  I know, but this is why I think the Republicans are skeptical of this deal.  If you can‘t make a judgment now about a man you had watched all these years.  How about Clarence Thomas?  Is he extraordinarily bad and doesn‘t deserve an up or down vote if he gets promoted to chief justice?

NELSON:  Who else are taking on here.  I mean, the point is, I‘m—certainly I would for cloture for Judge Thomas.  I‘m not looking to vote against anybody for cloture.  So, without debating each and every one, because you‘ll get me at some point when you‘ll give me a name that I don‘t know, and then I‘ll have to (INAUDIBLE).

MATTHEWS:  No, I know, I‘m only asking the ones who sit on the court now, because I do want to know what extraordinary means.  And I question, I guess I think it may be an escape hatch for some people, maybe not one of your six, to vote against anybody. 

NELSON:  Well, I‘ll put it this way.  When I couldn‘t get a file that I wanted, the material that was available but would not be made available to me in the case of one of the judges, I voted against cloture.  The one time I did.  Because I thought it was extraordinary.  I decided, if I can‘t get the information, if I can‘t make up my mind, how can I decide up or down on that judge? 

MATTHEWS:  I know what you mean.  Thank you very much for coming on, Senator Ben Nelson of Nebraska and Senator Sam Brownback of Kansas. 

Coming up, HARDBALL political analyst Bob Shrum and former Bush speechwriter—and name‘s almost the same—David Frum, on whether there will be a deal in the Senate, or whether the war over judicial nominees will go nuclear.

And tomorrow on HARDBALL, former Secretary of State Colin Powell.  We‘re going to interview him tomorrow.  You‘re watching HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

(NEWSBREAK)

MATTHEWS:  Welcome back to HARDBALL.  Did the Republicans already have the votes in the battle over the judicial filibuster?  Bob Shrum is a former Democratic strategist.  He is now a HARDBALL political analyst.  And David Frum is the former Bush speechwriter, George W. Bush, that is. 

Let me ask you this.  My rumor mill tells me—it‘s more than a rumor, I was checking around—that the Republicans have 51 votes.  They can win this thing.  It‘s just a question of letting some of the members off easier by getting the Democrats to surrender.

DAVID FRUM, FORMER BUSH SPEECHWRITER:  Well, I think people would like to do this in a nice way, so it doesn‘t leave rancor.  But with 55 Republicans, you can afford to lose—to lose a couple.  And as you saw in the Bolton battle, the administration does have a great ability to corral people who might be tempted to stray. 

MATTHEWS:  So you think you have got the votes? 

FRUM:  I hope so.

MATTHEWS:  Bob Shrum, what are you hearing from your close encounters with people on the Democratic side of the Hill? 

BOB SHRUM, HARDBALL POLITICAL ANALYST:  Well, I think people feel very strongly about this issue.  I think they‘re going to continue to fight it.  I think the Republican may very well end up having the votes.  I think long term, this can be a big problem for them in the country.  I mean, they have the votes, and basically put through this special Terri Schiavo bill.  And I think there was tremendous reaction against it, both in Florida and nationwide. 

But I don‘t think the reaction sets in here in the short term.  I think it sets in in the long term.  If for example, George Bush ever does get to the point where he succeeds in appointing enough people to the Supreme Court to overturn Roe v. Wade, we will have the mother of all election battles in the next national election. 

MATTHEWS:  Well, let‘s just move it forward a bit to the almost visible future this summer.  It‘s going to be hot.  Let‘s just predict that.  It will be hot in Washington.  The air conditioning will be humming, and the president will be trying to fill a Supreme Court vacancy, perhaps, if Justice Rehnquist, who is ailing, steps down.  That chief justice spot is a prized plum for both parties. 

If the president puts a nominee forward, do you think he‘ll put forward someone who—let me put it this way—will pass muster with the American Bar Association, will be a competent nominee?  It will simply be a question of ideology, when he gets up or down? 

FRUM:  Right.  I think he will also...

MATTHEWS:  Do you believe that? 

FRUM:  I do. 

MATTHEWS:  He won‘t put a whack job up there? 

FRUM:  I think he will also put up somebody with a powerful life story.  I mean, that he...

MATTHEWS:  A minority woman perhaps. 

FRUM:  Somebody like that.  But he knows—I mean, he knows that this is a battle.  He knows when you go to a battle, you go armed.  So you don‘t send up anybody about whom there‘s a question.  You send up strong candidates.  I think Republicans have gotten themselves into trouble in the past with the David Souters, with mystery candidates.  They‘re going to want to be very careful...

(CROSSTALK)

FRUM:  Exactly, they‘re going to want to be careful this time. 

MATTHEWS:  Because Souter has done what on the court?

FRUM:  Souter has proven to be in fact one of the more liberal members of the Supreme Court.  This was something that was sold to the Republican Party as somebody who was going to be a big surprise.  Well, he was a big surprise. 

MATTHEWS:  Let me ask you, Bob, for your surmise, do you believe that the president, if he gets an opportunity to fill one or two vacancies, starting with the chief justiceship—that‘s a conservative seat.  So he can‘t make it probably more conservative.  Do you think he‘ll pick somebody who will pass muster with the Bar Association, someone who is judicially competent to fill the post? 

SHRUM:  Well, I think he could easily pick somebody who is judicially competent, and with whom people can have great difficulties in any event.  I mean, if you had a judge who, for example, did not believe in the right to privacy, if you had a judge who, for example...

MATTHEWS:  That‘s Robert Bork right there. 

SHRUM:  Well, but it‘s Janice Brown, one of the judge nominees who is being talked about right now.  So I think if you pick somebody like that, you could have a real fight. 

I actually think there‘s a big difference between this President Bush and the first President Bush.  You know, Senator Brownback talked about the huge applause the president got when he went out in the country and talked about judicial nominees.  I think he was speaking to very selected audiences.  I think the country wants us to deal with some pressing questions like Iraq, education, health care, some really fundamental issues, not with Terri Schiavo and the court. 

The first President Bush, I believe, probably knew that he was appointing a moderate when he appointed David Souter.  And I think he was told that by Warren Rudman, and I think he thought that was a good thing to do.  I think this President Bush wants to appoint someone who is very far to the right. 

MATTHEWS:  Well, doesn‘t he owe that to the people who gave him his 3 million vote majority in the popular vote?  Many of them Christian evangelicals, who want a conservative Supreme Court.  What‘s wrong with that?  You win an election, Bob.  Your side lost the election.  Sooner or later, don‘t you have to pay the price of losing elections and the other side gets to make the decisions? 

SHRUM:  Chris, Chris, you wrote a book about JFK and Nixon. 

MATTHEWS:  Right.

SHRUM:  And in that book, you have an interesting discussion I think about President Kennedy‘s reaction to the closeness of his election.  In a sense, he felt that he had to do some things to unify the country. 

MATTHEWS:  Right, right.  He picked a couple of Republicans for his major cabinet posts, that‘s for sure.

SHRUM:  Right.  And look, earlier you were talking about what‘s extraordinary.  What‘s extraordinary here is that we‘re talking about five or 10 judges, judicial nominees, out of hundreds nominated by George Bush.  They are by definition almost extraordinary.  So if...

(CROSSTALK)

MATTHEWS:  ... make the case to Republicans, isn‘t it the lowest percentage of accepted appellate nominations in history? 

FRUM:  And it is the Democratic Party that is fighting this battle in a strange and bitter way.  I mean, it‘s their Alamo, their last stand.  When you were talking beforehand about some of the—I mean, the extraordinary...

MATTHEWS:  (INAUDIBLE) another argument?  That it‘s your party‘s attempt to take over every part of the U.S. government.  You‘ve got the White House, the Senate, the House.  Now you want the judgeships. 

FRUM:  Well, if you have a Republican White House and a Republican Senate and a Republican Congress, I mean, who should appoint the judges?  I mean, it isn‘t like the judicial nominations are a consolation prize, that the loser gets the judiciary.  That with a lag, with—I mean, the Republicans have been winning elections now for a quarter century.  With the lag, you have an impact on the judiciary.  And this is a little bit like...

MATTHEWS:  Are Bob‘s worst fear—I see.  We have a little time here.  Are Bob‘s worst fears real?  In other words, do you believe a judge put on the court would radically try to change the decisions of the court, regarding a woman‘s right to choose an abortion?  Do you believe those things are in jeopardy from a liberal point of view? 

FRUM:  I think it is possible that some of the excesses of the Roe v.  Wade judgment will be trimmed back, but I think what the real hot button issue is now, that are on the mind of those voters and those judges are going to be same-sex marriage, the traditional marriage, and...

MATTHEWS:  Where does the court, at the federal level, deal with same-sex marriage?  Unless you can find the right in the U.S. Constitution. 

FRUM:  Well, you—they‘ve—you saw a judge in Nebraska—you saw a judge in Nebraska, just decide, you know what?  He—the words aren‘t there, but he believes it is there and (INAUDIBLE).  He may be over...

SHRUM:  But, David, that‘s not what he decided.  He decided that the Nebraska statute went way beyond the question of marriage by limiting the adoption right and inheritance rights of gay partners.  He did not decide gay marriage. 

FRUM:  No, he decided something actually much crazier than that.  He decided that by the State of Nebraska amending its constitution so as to foreclose same-sex marriage, it was suppressing the free speech rights of advocates of this.  It was a lunatic decision.  It needs to be overturned (ph)...

(CROSSTALK)

SHRUM:  The Nebraska statute went way beyond same-sex marriage.  That‘s the reality of it.  And, you know, you just said this might be the Democrats‘ Alamo. 

MATTHEWS:  All right, we‘re going to come right back with Bob Shrum and David Frum.  More, coming back, on this issue.  We‘re going to get back to the court fight, and who‘s going to win it.  Who‘s going to pick the court, the president or the Democratic Congress?  This is HARDBALL on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  We‘re back with Bob Shrum and David Frum.  David, I‘m looking at the latest NBC polls.  Without going into all the aspects of them, the numbers show people don‘t like what Congress is up to and they‘re looking forward to re-elect—electing, rather, a Democratic Congress next year.  What do you think of that?  Is this about the filibuster? 

FRUM:  No.  I think it‘s about the way the question is asked, and polling...

MATTHEWS:  Well, “do you approve of Congress‘s behavior or not?” 

FRUM:  People will—when you ask them a question, they give you a very exact answer to the question they‘ve just heard.  If you make it too general, they look at everything they see on television, they never like what they see on television.  Is—are the American people going to elect a Democratic Congress in order to put liberal judges on the bench? 

MATTHEWS:  No, it‘s just that they‘re mad at the way things are going generally. 

FRUM:  That strikes me as very, very unlikely and when you look at the way the states go, I have to think, 2006 looks like a reasonably good year for the Republicans.  There are a lot more states where they—people voted Republican for a Republican president and a Democratic congressman than the other way around.

MATTHEWS:  Bob, I looked at all three numbers.  One was the right direction and wrong direction of the country, do people think we‘re in the wrong direction.  Number two, do you blame—they blame the Congress, in fact, more than they blame the president, it seems.  And third, they say they‘re looking forward to electing a Democratic Congress next time around.  So, I looked at a number of these numbers.  They all come out, this is good for the Dems, bad for the Republican.  Do you think it is the filibuster fight, the Schiavo case, gas prices?  What do you think it is that is driving people away from the Republicans right now? 

SHRUM:  Well, we have a long way to go...

MATTHEWS:  Of course.

SHRUM:  ...between now and next November, obviously, but look. 

MATTHEWS:  Don‘t be too magnanimous, Bob. 

SHRUM:  We have a country where every night, people are seeing violence in Iraq at a level that no one expected, where the military says things are in terrible shape.  We have people losing healthcare.  General Motors seeing its bonds down graded to junk because of the healthcare costs, and the Congress is spending its time on the Schiavo case and this. 

David says this is the Democrats‘ Alamo.  I would remind him that shortly after the Texans lost at the Alamo, they won overwhelmingly at San Jacinto and changed the course of American history. 

MATTHEWS:  But wouldn‘t the Democrats be in better shape, Bob, if they‘d opposed the war in Iraq, instead of Hillary, John Kerry, everybody else, voting for the war?

SHRUM:  Listen, Chris, we could go back and talk about that...

MATTHEWS:  No, I don‘t think it is a history.  You cannot say you deserve credit for being right when you were wrong.  That‘s all. 

SHRUM:  But—no, no, I don‘t think Democrats are going to run on that.  I‘m saying, right now, the Congress, the country would like the Congress to be looking at the real problems that we‘re facing, and we have some very real problems—in healthcare.  We still have problem in the economy.  We have problems in education.  We have tremendous problems in Iraq and foreign policy.  And we‘re off on Terri Schiavo and the filibuster. 

FRUM:  But that‘s why Bob‘s comment can be turned back on itself.  Maybe it would be better for the Democrats to focus on pensions, but they are saying we are here to put the liberals judge who drove America crazy in the 1970‘s and 1980‘s, that is our priority to bring those nuts back. 

MATTHEWS:  David, we didn‘t—David, we got...

SHRUM:  Who are these nuts you‘re talking about, by the way? 

MATTHEWS:  Who are the nuts, by the way?  We didn‘t pick...

SHRUM:  You sound like a Dobson (ph) character.  Who are these nuts you‘re talking about?  Give me some names. 

FRUM:  The American...

SHRUM:  Names. 

(CROSSTALK)

FRUM:  I‘m putting quote marks around it.  I‘m saying that a liberal...

MATTHEWS:  Well, give me some names.  Name these liberal nut cases. 

FRUM:  I‘m not—no sir, I‘m putting quote marks around them because I‘m suggesting that the reason that America turned to the right in the 1970‘s and 1980‘s...

SHRUM:  Give me some names.

MATTHEWS:  I tried to stay on that.  Senator Corzine, tell me who you‘re talking about when you criticize people.  Who are these liberal nuts?

FRUM:  I‘m sorry.  I want to be clear about this.  I‘m not criticizing anybody.  I‘m saying that Americans have a perception, the judiciary in the 1970‘s and 1980‘s, went out of control.  That is the reason that the Republican party has been—one of the reasons—has been so strong since then.  And for the Democrats to be saying, our top priority is not these pensions that Bob Shrum is worried, about but bringing back those judges who drove you Americans so crazy 20 years ago, that‘s number one for us.  They‘re the ones who are showing themselves to be out of touch.

MATTHEWS:  More from these guys later, I‘m sure.  Bob Shrum, thank you for joining us from New York.  David Frum from right here.  When we come back, three of America‘s top journalists on how the pressure groups are driving American politics to distress. 

And two programming notes:  tomorrow on HARDBALL, we‘ll catch up with

former Secretary of State—I‘m going to lose my voice—Secretary of

State Colin Powell.  He‘s coming here tomorrow, and this Sunday, on “Meet

the Press,” Tim interviews Democratic party chairman Howard Dean.  It‘s a

great get; he hasn‘t been on yet in a long time.  This is HARDBALL, on MS -

·         only on MSNBC.

(COMMERCIAL BREAK)

(NEWSBREAK)

MATTHEWS:  Welcome back to HARDBALL.  One of the joys of this job is coming up.  Three of broadcast journalist‘s best, NBC‘s chief foreign affairs correspondent, Andrea Mitchell.  The producer and host of “Nick News” on Nickelodeon and a former NBC News correspondent and anchor Linda Ellerbee—there she is—whose new book is called “Take Big Bites:

Adventures Around the World Across the Table.”  And Fred Graham, Court TV chief anchor, who was chief counsel to the Senate Committee on Constitutional Amendments, right actually during the heyday of the filibuster, during the civil rights era.

Let me start with this “Newsweek” problem.  Is there anything—let me start with Linda Ellerbee, delightful Linda Ellerbee.  Is there anything you would do if you were the editor of “Newsweek” right now for restitution purposes?  Is there any way to repair this? 

LINDA ELLERBEE, AUTHOR, “TAKE BIG BITES”:  Well, I think it is really an oversimplification in the first place, to lay this at “Newsweek,” when the government says, “Newsweek” has done this country irreparable harm overseas.  There are an awful lot of things that have caused people to look at Americans funny.  Ours is a—our business is supposed to be about verifiable facts.  We don‘t know whether or not what “Newsweek” wrote is true or not.  We know it‘s not verifiable, and “Newsweek” has apologized. 

We also know this country went to war over unverifiable facts, which turned out later not to be true.  Saddam Hussein had no weapons of mass destruction.  So I‘m not sure what else “Newsweek” needs to do.  They wrote a story; they apologized; they said they were wrong. 

MATTHEWS:  Andrea, would you like to demure on that a bit as a journalist?  On that question of culpability and the need for some kind of repair here publicly? 

ANDREA MITCHELL, NBC NEWS CHIEF FOREIGN AFFAIRS CORRESPONDENT:  Well, not entirely.  I think that “Newsweek” has said it was wrong.  They obviously know that they‘ve got a problem and they‘re still trying to control the damage. 

MATTHEWS:  There was no Koran flushed down the toilet at Guantanamo. 

MITCHELL:  Well, they can‘t prove that there was, and they wrote that there was.  And what you have to do as a journalist, to say that it was wrong as far as you know.  You don‘t have a way of verifying it, as Linda said. 

At the same time, this is not the first time this was written.  The one phrase in the “Newsweek” report that was different, that was new, was that Pentagon officials had authenticated this, and that it was going to be in their investigative report.  It had been written about in “The Philadelphia Inquirer,” it had been written about widely in the last couple of months.  So this is not the first time this had been reported. 

But of course the other reports had all stemmed from prisoner complaints, and we know that there‘s no way to authenticate what the prisoners were claiming. 

MATTHEWS:  But Fred, you know, we have got new reports today.  We had a hot (ph) note coming in this evening from the State Department on our network, that the International Red Cross had gotten reports that religion was being used with regard to the prisoner mistreatment.  But you know, Dan Rather would still be in great shape if the general thrust of an article or news report was accurate, even though the particular charge wasn‘t.  He had a document that said Bush was getting special treatment.  It turned out to be a bogus document, and he got in big trouble for it.  Can you claim that your general argument is correct, therefore the particular argument you report isn‘t?  And that doesn‘t matter. 

FRED GRAHAM, FORMER SENATE JUDICIARY COMMITTEE COUNSEL:  Well, in this case, the “Newsweek” case, everyone makes mistakes.  They—I‘m sure they had no idea that if this was wrong, it would bring the results that it did.  But Chris...

MATTHEWS:  So it‘s not a...  

(CROSSTALK)

GRAHAM:  Yeah...

MATTHEWS:  In other words, Fred, if you know...

GRAHAM:  Let me say something here. 

MATTHEWS:  OK, but I‘m not sure that isn‘t an arguable point.  That reporting that the Koran was flushed down the toilet, even if it turned out to be true, don‘t you have to make a second judgment?  Is this something we should report given what we know to be the incendiary consequences? 

GRAHAM:  Well, they made a mistake and they shouldn‘t have done it, and they know they shouldn‘t have done it, and they‘re paying a dear price. 

But I think the Muslim world over there in the Middle East should look at

itself, too, and look at its lack of critical thinking on this.  You know,

you have a report.  The report is out there.  They haven‘t had a chance to

find out if it‘s true or not.  And you have rioting in the streets before -

·         and 16, or perhaps more people killed. 

And you know, we live in a world now—and the Middle East and Afghanistan lives in it, too—they just moved into it, but it‘s instant worldwide communications, and that society over there has some sort of obligation to be a little bit more critical in the way they look at what happens in this modern world. 

MITCHELL:  You know, “Newsweek” is playing a very heavy price for what it did.  But at the same time, as Fred and Linda have pointed out, the Muslim world has a big obligation here not to be driving this.  Muslim media, Muslim clerics.  They are so eager to take advantage of this one claim.  And at the same time, the spokespeople, you know, at the State Department and the White House are glorying in this.  They are just driving this home. 

MATTHEWS:  Because?

MITCHELL:  Because they have been looking to seize upon any opportunity...

MATTHEWS:  To blame someone else for the war. 

MITCHELL:  To blame someone else, exactly.

MATTHEWS:  Linda Ellerbee, we have an interesting question here.  It may not—it may be a softer question, but it is relevant.  The first lady is going to travel to the Middle East right now, and she‘s going to have to go over there and be the fly catcher on this. 

ELLERBEE:  I think she‘s going to be just fine.  When I wrote this book, “Take Big Bites,” which, you know, sort of refers to an attitude about life, one of the reasons I wrote it was because after 2001, I met so many Americans and I have continued to meet them who are afraid to travel outside our country.  I thought if I wrote stories about my own adventures, I would—could encourage them to get out there.  We fear what we do not know.  And if we can meet people in other cultures, in their homes, where they live—well, OK, maybe we can‘t all be friends, but maybe we can be better strangers to one another. 

And I think that, you know, then none of us will be subject to fearmongering, whether it comes from the media or governments.  I think she has nothing to worry about. 

MITCHELL:  And you know, one of the other things that we should—points that we should make is that General Myers, the chairman of the Joint Chief, and other officials in Afghanistan, said that the rioting over there did not start with the “Newsweek” report.  That it was used and seized upon, yes, to exacerbate what was going on already... 

MATTHEWS:  That was the first take.

MITCHELL:  It was the first take.

MATTHEWS:  The second take was blame “Newsweek.”

MITCHELL:  Right.

GRAHAM:  Yeah, and you know, the leaders there, both the religious leaders and the secular leaders, have not borne their responsibility of stepping forward and saying, hey, wait a minute.  Before we tear up our own country and have people killed, let‘s just calm down here and see if these reports are true.  And I don‘t—I haven‘t seen any quotes from anyone like that, telling their own society to be more prudent. 

MITCHELL:  I‘m not trying to excuse what happened, because what happened was a case of sloppy reporting, and it had bad ramifications, and you can ask a serious question as to whether, if you had known this to be a fact, how would you have reported it, to put it in enough context?  Would you have done it in “Periscope,” or done it in a broader story?  But at the same time, no one in this administration has taken adequate responsibility for Abu Ghraib.  And that is a continuing problem.  And that created the background, or the context...

MATTHEWS:  The leitmotif. 

MITCHELL:  To be a little more intellectual, yes. 

MATTHEWS:  Do we all agree that “Newsweek”—I don‘t know if I agree.  I want to ask you three.  Does “Newsweek” owe this country and the world a cover explanation next week? 

You start, Linda.  Do they need to put a cover on and say, like you would in a tabloid, we was wrong? 

ELLERBEE:  I don‘t think they need to but I bet they do. 

MATTHEWS:  What do you think, Andrea?  Will they go with a cover—

I‘m talking about their international edition, especially, that skinny, that air mail one that goes around the world to the Middle East. 

MITCHELL:  I don‘t know if they‘re considering that.  That would be one way of trying to reach out and through the broadest possible audience, also their online versions, to try to explain it to the rest of the world. 

MATTHEWS:  Fred, should they go a cover in their defense—their mea culpa.  Should they say, we were wrong?   

GRAHAM:  No, I think that‘s going too far.  That‘s exaggerating?  They should do what other recent publications have done when there have been problems at the “New York Times,” “USA Today” and so forth.  They should look very carefully and do some reporting on how this happened and make it very clear that they are going to take some steps to see that they don‘t cause something like this again. 

MATTHEWS:  OK.  Thank you.  Stay with us.  We‘ll be right back with Andrea Mitchell, Linda Ellerbee and Fred Graham.

And tomorrow on HARDBALL former Secretary of State Colin Powell will join us.  And on Monday, Senator John McCain.

This is HARDBALL only on MSNBC.

(COMMERCIAL BREAK)

(NEWSBREAK)

MATTHEWS: We‘re back with Andrea Mitchell, Linda Ellerbee and Fred Graham.  What a trio.

I want to go through each one of you, starting with Fred who has some experience in this department with the filibuster, do you think we‘re likely to get an outcome whereby the filibuster is ruled out in judicial nomination fights? 

GRAHAM:  I think that is likely.  But there may be some filibustering that occurs between now and then.  And Chris, I think one thing has changed since the days in the 60‘s when I was on the staff of the Senate and there was some filibustering done.  And that‘s C-SPAN.  And I think if the public sees how threadbare some of these arguments are as they‘re repeated over and over and over again on C-SPAN, I think there may an backlash and a boomerang against the filibuster. 

MATTHEWS:  Wasn‘t it fascinating today to see the Black Caucus has come out in favor of the filibuster.  Fred, talk about a reversal of positions by everybody. 

GRAHAM:  And they were almost a little about it shame-faced about it,

because you and I can remember the day when the filibuster was this awful -

·         it was Big Jim Eastman and these other, Bilbo (ph) and they were using it against, like the federal law to stop lynching.  Who could argue against a federal law to stop lynching?  And they filibustered and blocked it. 

MITCHELL:  One of the things that bears out what Fred was saying is that the latest NBC News/Wall Street Journal poll has Congress at the lowest possible levels, 33 percent negative. 

(CROSSTALK)

MITCHELL:  It is everything.  It‘s the fact that Washington appears to be dysfunctional.  It is affecting both parties and it is certainly affecting congressional ratings of approval.  Because what people see is debates over process and not debates over things that affect their lives. 

MATTHEWS:  Linda, do you think this may be encouraging bias in an argument here, and I don‘t mind that, but do you think people just didn‘t like the Schiavo thing, they thought it was overreached.  They think getting rid of the filibuster is overreached.  When they say Congress is not doing a good job, they mean they‘re doing too much stuff they shouldn‘t be wasting our time on? 

ELLERBEE:  Well, I‘ve been out traveling the country over the last weeks on this book tour.  And I‘ve been talking to people.  And I have to tell you, the filibuster is not on most people‘s radar screens.  They sort of look at it, as you say, there‘s Congress being silly again. 

And I think we in the media need, perhaps, to examine our coverage and instead of reporting he said, he said, he said, sort of move up to the first graft.  If you‘re able to rule out the filibuster, this is a big change for your future.  And if you‘re able to do that, the Republicans will eventually learn that it will hurt them, too.  Because they won‘t always be in power. 

Right now, look.  George Bush has gotten 208 of his nominees, judicial nominees approved.  That‘s more than most presidents.  He has the House, he‘s got the Senate.  Now you have some people trying to stop some of these judicial nominees.  It‘s like, how much is enough? 

Personally, I think the country works better when one party doesn‘t hold all the marbles.  And I don‘t care which party it is. 

MATTHEWS:  Well, he does have—the record shows that the Congress has approved the lowest percentage of his appellate nominees of any president, Linda, so the numbers do show that among the key judgeships, the appeals judges, have been rejected 35 percent have been rejected.  It‘s not like the Republicans don‘t have a case here.

ELLERBEE:  No, I think they do have a case.  But I guess what I really mean here is that if this gets ruled—just ruled out of order, and you only need 51 votes for that, in the future, what else can you just rule out of order?  I mean there is a good reason to have filibusters.

MATTHEWS:  I want Fred to come in here and just give us a little homily on the importance of the courts, because I think you‘re right, Linda.  Sometimes we get involved in a fight and we forget the stakes.  The stakes are enormous on every aspect of American life.  Fred.

GRAHAM:  Well, you know, what‘s happening is inevitable, because of what‘s happened to the courts.  And that is, going back half a century ago to Earl Warren‘s revolution there on the Supreme Court.  More and more of the important decisions in American life are made by judges and not by legislators.  And many of those decisions made by judges have gone the way of the Democrats.  And the Republicans, the conservatives, particularly the religious ones, are very aggrieved by that. 

MATTHEWS:  What do you think really aroused the moral majority?  Was it the prayer in school decision? 

GRAHAM:  On this?  I think in this one, you know, I think a lot of this is happening because these outside advocacy groups are pumping money into this.  And I think they want to have a fight on both sides, on the religious right and on the liberal side. 

MATTHEWS:  I agree with you.

GRAHAM:  And I think what can they—if we have a filibuster or if we have the nuclear option, they can really raise a pile of money by going to the...

MATTHEWS:  I think it‘s fair to say we can all agree that Ralph Neas who heads People for the American Way, and James Dobson, have one common interest: A big fire.  Right?

(CROSSTALK)

MITCHELL:  And some of the conservative justices are very uncomfortable with this, including Scalia. 

MATTHEWS:  I think some people want a big conflagration.  Linda, good luck with the book. 

ELLERBEE:  Thank you.

ELLERBEE:  “Take Big Bites,” as you already have.  Thank you.  And thank you, Andrea Mitchell.  Thank you, Linda Ellerbee.  Thank you, Fred Graham. 

When we return, the Army‘s Golden Knights parachute team has a special jump for their wounded fellow soldiers at Walter Reed Army Medical Center.  And guess who was with them?  And don‘t forget to check out Hardblogger, our political blog Web site.  Just go to Hardball.msnbc.com.

(COMMERCIAL BREAK)

MATTHEWS:  Ever since the Iraq war began and the casualties began arriving at Walter Reed Army Medical Center, the wounded veterans at the facility have received a steady stream of visitors, including politicians, Hollywood celebrities, and Pentagon VIPs.  Today there were some visitors who took a rather unconventional route into the complex.  Here‘s HARDBALL correspondent David Shuster. 

(BEGIN VIDEOTAPE)

DAVID SHUSTER, HARDBALL CORRESPONDENT (voice-over):  On board their airplane, it may have looked like any other day for the U.S. Army parachute team.  The Golden Knights jump at hundreds of events every year.  But on this day—they went through door of the Washington, D.C.‘s Walter Reed Army Medical Center.  Thirty-five hundred feet below, hundreds of people were watching, including hospital staff and a dozen veterans recently wounded in Iraq. 

One of them was demolition expert Brian Doyne.  This past February, two insurgent bombs went off, killing Doyne‘s team leader and severely wounding him. 

SGT. BRIAN DOYNE, WOUNDED IN IRAQ:  It pretty much shattered both legs, both legs just below the knee.  Amputation of my left arm below the elbow.  I lost my left eye.  Extensive damage to my mouth.  Collapsed a lung. 

SHUSTER:  For the Golden Knights, this was an opportunity to pay tribute to all of the wounded veterans at the Army‘s premier medical facility.  The parachute team set off smoke canisters, presented the American flag, and then one after another, landed on a target set up on the hospital‘s front lawn. 

SPC. JOSHUA COLEMAN, ARMY GOLDEN KNIGHTS:  It‘s just great to come here and honor these guys.  They‘ve done so much for their country.  Answered the call of duty.  The ultimate sacrifice.  And it gives me great pleasure to just come in and be able to do this for them. 

SHUSTER:  The wounded veterans were also reminded that this parachute team has tested and refined equipment that enables anybody missing a limb to do a tandem jump. 

SPC. DAN MOESCH, ARMY GOLDEN KNIGHTS:  It helps a lot in therapy and stuff.  It gives them motivation.  It‘s an inspirational thing.  These guys, you know, for whatever reason, didn‘t think they could ever jump again, we‘re giving them the opportunity.  And that helps them out a lot. 

SHUSTER:  Many of these veterans say they plan to accept the invitation someday.  And Brian Doyne pledges that for this group, the sky will be the limit. 

DOYLE:  We‘ll be able to get back to whatever we want to do, and there‘s nothing we can‘t do.  The more opportunities we have, the more opportunities we get to return to a full and normal lifestyle. 

SHUSTER:  In the meantime, however, there are tough rehabilitation sessions ahead.  And on this day, to honor the courage and sacrifice of all at Walter Reed, the Army‘s best parachute team dropped in and said, thank you. 

I‘m David Shuster for HARDBALL in Washington. 

(END VIDEOTAPE)

MATTHEWS:  Thank you, David Shuster.  Tomorrow on HARDBALL, we‘ll catch up with Colin Powell and his future plans, which he says involves his military and diplomatic experience.  And the work he is already doing on behalf of America‘s youth. 

(BEGIN VIDEO CLIP)

COLIN POWELL, FORMER SECRETARY OF STATE:  We have got to put our youngsters on a better track to success in our schools, which means better schools, more investment in our school, more investment in our teachers.  But it‘s not just the schools.  It is the responsibility of families as well, to give the youngsters the right start in life. 

(END VIDEO CLIP)

MATTHEWS:  Plus, Janice Karpinski, the former general in charge of Abu Ghraib prison, says prisoner mistreatment of detainees may still be going on. 

And here‘s a look at some of the guests coming to HARDBALL next week. 

It is going to be a great week next week on HARDBALL.

And next on COUNTDOWN, where will Donald Trump unwind after the “Apprentice” finale?  At his $30 million, 118-room palace, of course.  The Donald‘s butler will give you an exclusive tour next on the COUNTDOWN with Keith.

END

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