updated 5/25/2005 2:19:39 PM ET 2005-05-25T18:19:39

Guest: Joseph Biden, Hilary Rosen, Kim Gandy, Trent Lott, Tony Perkins

CHRIS MATTHEWS, HOST:  Blowback.  For every force, expect a counterforce.  Who is going to suffer for this bipartisan deal on filibusters? 

Let‘s play HARDBALL.  

Hot time in the town tonight.  Good evening.  I‘m Chris Matthews.

Senator John McCain is taking serious heat from conservative groups over his 11th-hour deal to preserve the filibuster.  Meanwhile, Republican Leader Bill Frist warns that the nuclear option to ban judicial filibusters remains at the ready. 

In a moment, Senator Trent Lott will be here to talk about what he thinks of his seven Republican colleagues who cut this compromise.  And later, Tony Perkins of the Family Research Council and Kim Gandy of the National Organization for Women will be here to talk about why the deal is causing so much anger from both the right and the left. 

But, first, the Senate voted today 81-18 to end the debate over one of President Bush‘s judicial nominees, Priscilla Owen, paving the way for her nomination.  Senator Joe Biden of Delaware, the ranking Democrat on the Judiciary Committee, was one of those 18 who opposed ending the debate over Justice Owen.

I spoke with Senator Biden earlier today and began by asking him what he thought of the deal that those seven Republicans and seven Democrats cooked up. 


SEN. JOSEPH BIDEN (D), DELAWARE:  I think it was fine.  It avoided a showdown that I was not sure we could win.  Had we lost the showdown, had we lost the filibuster, I think the nation would have been damaged.  The function of the Senate would have been altered.  So I think it was—it was fine. 

MATTHEWS:  If you like the deal, why did you vote against cloture today on the Priscilla Owen nomination? 

BIDEN:  Well, because I find that it is much harder to explain why you change your vote than why you keep your vote the way it was.  I voted against cloture before on her.  Had there been—had I been part of that deal, I told them I would vote for Priscilla Owen, but I could not bring myself to vote for any cloture on Janice Rogers Brown and Mr. Pryor, who I do think are extreme.  I don‘t think that Priscilla Owen is particularly extreme.  I think she is not a good choice, but I don‘t think she‘s extreme. 

MATTHEWS:  What do you think is the challenge facing those who put together this bipartisan deal?  When do you think booby traps are going to occur, the hazards of keeping the deal? 

BIDEN:  Well, I think that will depend an awful lot upon the president on one hand and the interest groups in both parties on the other hand. 

If the president does what Clinton did in a clearly divided Senate, in a divided country, if he sends up mainstream people, like Clinton did—remember, Clinton, the man that Republicans loved to hate, he sent up two nominees that got over 97 votes, each of them.  The president can find solid, solid conservatives who will get overwhelming support in the United States Senate. 

But if he decides to stretch the envelope and pick, for example—he won‘t—but a Douglas Ginsburg, who writes about the Constitution in exile and we should move back to the pre-1935 reading of the various clauses of the Constitution, then, then it is engaged and then that puts the Republicans, the seven, in a tough spot if Democrats filibuster. 

Conversely, if in fact he sends up someone who is mainstream, but not supportive of Roe—and I know some people think that‘s an oxymoron—and that‘s going to—the interest groups are going to put a lot of pressure on the Democrat to say, no, no, no, that person is an exceptional case and therefore you should filibuster.  I think it depends upon who get sent. 

MATTHEWS:  Nancy Keenan of NARAL, the national abortion rights group, said: “We are confident that a Supreme Court nominee who won‘t even state a position on Roe v. Wade is the kind of extraordinary circumstance this deal envisions.”

In other words, anyone who won‘t even state their position on Roe v. 

Wade is extraordinary and therefore, would have to be filibustered. 

BIDEN:  Well, quite frankly, probably two-thirds of the judges on the Supreme Court took that exact position during their hearings.  I think it is less important that they state where they are in Roe v. Wade than how they explain their position on the liberty clause of the 14th Amendment, which is the basis upon which Roe vs. Wade rests. 

Whenever you ask a justice or a nominee their position on a particular case, they always have the option of saying, that may come before me again and I do not want to prejudice my view.  And that has some weight.  So, I don‘t think the 14 people who signed on an agreement are necessarily ones who would think that would be one of those extraordinary circumstances. 

MATTHEWS:  Let me suggest a scenario for later this summer.  Justice Rehnquist resigns from the Supreme Court because of health reasons.  To fill the vacancy of chief justice, the president puts up the name of associate Justice Antonin Scalia, who was, by the way, confirmed by 98-0 when he was up for associate justice.  He offers to replace him with his attorney general, Alberto Gonzales, for obviously good reasons and political reasons. 

Those two nominations together, do you think they constitute an extraordinary circumstance?  Or are they the kind of people you just mentioned, who may be against the Roe vs. Wade, but are certainly, certainly unexceptionally OK in terms of competence? 

BIDEN:  Well, look, extraordinary circumstances are going to be in the minds of the 14 people.  I would think that they are not extraordinary, like if they sent up Janice Rogers Brown for example, who says that the—that the—that the jurisprudence that found the New Deal constitutional was a triumph of socialism over the Constitution.  That‘s extraordinary. 

That—if they send up people who really look for a fundamentally different reading of the takings clause of the Fifth Amendment, the nondelegation doctrine, all these complicated constitutional theories that most people don‘t know much about, but will radically alter their lives.

You know, remember, it was a 5-4 decision that found the Social Security system constitutional.  There are groups of people out there among the conservative right, those who talk about this Constitution in exile stuff, who really believe that the four people who said that the Social Security system was unconstitutional were correct. 

Send someone like that up, you have an extraordinary circumstance, I think. 

MATTHEWS:  OK.  On Monday, I asked Senator McCain about the Democrats‘ use of the filibuster.  And let‘s take a look at what Senator McCain said last night. 


MATTHEWS:  Have the Democrats learned their lesson, that it‘s better to only use this thing occasionally in extraordinary circumstances? 

SEN. JOHN MCCAIN ®, ARIZONA:  I think so.  I think the Democrats realized they abused the process with the filibustering last year.  And that‘s why we were able to make this agreement. 


MATTHEWS:  So, is he right?  Is Senator McCain right in saying the Democrats have learned their lesson not to overdue these filibusters? 

BIDEN:  I think he is.  I didn‘t vote for all these filibusters.  And I made the case that I thought they should be used only and within a different context exceptional circumstances. 

And when you filibuster circuit court nominees, it has to be really extraordinary because of the doctrine of stare decisis, which says, hey, look, I am a circuit court of appeal judge, may have a view that you don‘t like, Senator, but I will abide by what the Supreme Court says.  I‘ve generally taken those people at their word, assuming they have the judicial temperament to be on the bench. 

And so, it was more than had been done before. 

MATTHEWS:  Is the abortion rights issue what drives all the passion about this issue of the judgeships? 

BIDEN:  Well, it does on the extremes.  It doesn‘t for guys like me.  It doesn‘t for the vast majority of us, who are worried about the loss of the right for extended debate. 

But, I mean, I‘m—look, I‘m going to get in trouble for saying this.  If you asked me to list the 10 most important issues facing us in America, I would not list abortion as in the top 10.  There‘s a lot of other changes that can take place in the court that will radically alter our lives in a fundamental way, without any state recourse or without any congressional recourse. 

I do not want to see the decision changed.  But if it is changed, you would find 35 states tomorrow providing for the same kind of protection Roe v. Wade does.  But if you change this thing called the nondelegation doctrine to say the EPA can‘t determine what is clean air and clean water, then what you‘ve done is, you‘ve condemned my kids to an environment where the powerful will determine the outcome of their health, fundamentally different issues.  One is able to be partially rectified, at least.  The other can‘t be rectified at all. 

MATTHEWS:  Would the Senate vote differently if it could vote in secrecy, absent the knowledge, without letting the pressure groups know how senators are voting? 

BIDEN:  I think a few would.  I think they would, not so much on the judges, as they would on Mr. Bolton, for example.  I have no doubt, if there were a secret ballot on Bolton, he would not get 40 votes in the Senate. 

MATTHEWS:  I love the way you say Bolton. 


MATTHEWS:  Anyway, let me ask you about...

BIDEN:  Mr. Bolton.

MATTHEWS:  Let me ask you about some other issues.

It‘s been said that one of the advantages of this deal made last night is, it frees up the calendar.  Instead of having a summer of regret and the remorse and anger about what happened...


MATTHEWS:  ... that Harry Reid will allow the regular order to continue.  The Democrats will continue to vote on issues like Social Security, like issues like the energy bill and things like that, and the Bolton nomination.  Do you think that that‘s true? 

BIDEN:  Yes, I do think that‘s true. 

MATTHEWS:  And that‘s good for the republic? 

BIDEN:  I think it is good for the republic. 

Look, we have a lot of really, really, really important problems to            deal with.  We still have a war going on in Iraq that, in all due respect, the administration is not conducting as well as it could.  We have a circumstance we‘re trying to figure out what we‘re going to do with Iran.  We have a problem with regard to this gigantic and awesome deficit.  You just saw where Chairman Grassley said he is going to—he is going to support doing away with the—this minimum tax requirement.  They‘re going to change it. 

Well, that‘s a $600 billion hole in the budget.  We have giant problems here.  And we should get about the business of dealing with them. 

MATTHEWS:  OK.  It‘s great having you on, Senator Joe Biden of Delaware.

BIDEN:  Thanks.

MATTHEWS:  Ranking Democrat on the Judiciary Committee. 


MATTHEWS:  In a moment, the conservative reaction to the compromise that averted the nuclear showdown.  Senator Trent Lott of Mississippi is going to be here. 

And don‘t miss a special edition of HARDBALL at 9:00 p.m. tonight about the power of the abortion rights issue that is driving so much of this debate.

This is HARDBALL, only on MSNBC. 


MATTHEWS:  Coming up, are the Republicans angry about this compromise?  Republican Senator Trent Lott of Mississippi is going to be here when HARDBALL returns.




SEN. BILL FRIST (R-TN), MAJORITY LEADER:  Let me be very clear.  The constitutional option remains on the table.  It remains an option.  I will not hesitate to use it if necessary. 

SEN. HARRY REID (D-NV), MINORITY LEADER:  The nuclear option is gone for our lifetime.  We don‘t have to talk about it anymore.  I‘m disappointed that there are still these threats of the nuclear option.  It is gone.  Let‘s move on. 


MATTHEWS:  Welcome back to HARDBALL.  That was Senate Majority leader Bill Frist and Minority Leader Harry Reid earlier today with difference opinions—difference of opinions, obviously, on whether we‘re back to the nuclear option later this year. 

Republican Senator Trent Lott of Mississippi was initially involved in negotiations to hammer out a deal on President Bush‘s judicial nominees. 

What role did you play in all this? 

SEN. TRENT LOTT ®, MISSISSIPPI:  I‘ve been working for over a year, trying to find a solution to this problem of the serial filibusters that started off in the Rules Committee, where we reported out the Frist-Miller proposal that would have brought down these filibuster numbers, 60, 57, 55, 52, but eventually an up-or-down vote. 

And we reported that out of the Rules Committee, but it never did really go anywhere.  And when you looked at the numbers at that time, it was very closely divided in the Senate.  Earlier this year, I tried another proposal, working with Ben Nelson, that would have said, look, there‘s a problem with judges not getting out of the Judiciary Committee.  Let‘s guarantee that, after a period of time, they would be reported out. 

Let‘s guarantee, when they get to the floor, they‘ll be extended debate.  I suggested basically what amounted to a week.  But, in the end, you get an up-or-down vote.  Harry Reid rejected that.  And then I worked on this current situation, but pulled away from it for really three reasons. 

Number one, I was concerned about, how do you define extraordinary circumstances?  Is that term too nebulous?  Do you have a general agreement of what that would be?  I think that this group came up with a pretty good understanding of what that really means.  The second problem I had was, at that time, they were still talking about trying to basically throw overboard some people like perhaps Priscilla Owen or Janice Rogers Brown.  And I said, I would never be a part of something like that.  I...

MATTHEWS:  What about throwing over these guys, Henry Saad and William Myers?  They are overboard. 

LOTT:  It‘s not—well, it‘s not clear to me how that will play out.  The question is, if—I don‘t think they should be filibustered.  And I could never agree to that.  If there‘s an up-or-down vote and one of them or both of them don‘t make it, that‘s a different deal.  I‘ve always said that.

MATTHEWS:  What do you think happens, Senator, if the following happens?  The first three nominees for judgeships get it.  They‘re going to get cloture.  They‘re going to get approved.  And then you come to these other two people that aren‘t covered by the compromise, Myers and Saad, Saad, S-A-A-D, Saad.  If these two nominees get a majority vote, but don‘t get the 60 requisite for cloture, aren‘t we back to the same old ball game again?

LOTT:  We could be.  I don‘t think so in that case.  I think it will be more determined on what happens on the judges that are less well known or we‘ve not really seen yet. 

Now, let me make it clear right here, Chris.  I preferred putting the rule in place that it only takes 51 votes to confirm...


MATTHEWS:  The nuclear option. 

LOTT:  Or the constitutional option. 

MATTHEWS:  Constitutional option, whatever wording we use.

LOTT:  I think that federal judges should not be filibustered.  And I really reserve the serial aspect of this.  If the Democrats had not overplayed their hand, if they would have stopped with Miguel Estrada or maybe one or two more, but when it got to be a routine sort of thing, I thought that was putting in place a change in the rules that basically was not supported by history or by the Constitution. 

I was very much offended by that.  But, at the same time, I think that this—this agreement they‘ve come up with is worth pursuing.  It will depend on the good faith and the word and the trust of these men and women.  And it‘s a pretty good group of people.  You can be critical of them individually one way or the other or whether this was the right process. 

But I think, Chris—I‘ve been around Congress 33 years, actually 36 years, been in the Senate 17 years.  I‘ve seen some shoot-outs at high noon that were about to occur before.  And once you step back and don‘t do that, it tends to let the steam out.  And it tends to get things kind of back to the way it was or it should have been.  I hope that will happen this time. 

But let me just make it clear.  Even though Harry Reid has been talking to the contrary, if there‘s not good faith here, and if these filibusters begin to reoccur in such a way that is not extraordinary circumstances—and I can define that for you—then I believe that John McCain and Lindsey Graham and the rest of them will vote with the leadership to put this into the rules that it only takes 51 votes. 

So, everybody is going to have to be careful.  But it may work.  I hope it does.

MATTHEWS:  Define extraordinary, Senator.

LOTT:  Extraordinary to me is not because somebody is conservative or somebody refuses to state what their position is on Roe vs. Wade, any of that sort of litmus test thing or philosophical issues.  Look, I voted for Ruth Bader Ginsburg.  I knew I wouldn‘t agree with her probably 80 percent of the time.  But she was qualified, Chris, by experience, by education, by demeanor, decorum.  And President Clinton was elected president.  He deserved to pick his choices for the Supreme Court and they shouldn‘t have been filibustered and they were not. 

How do you describe it?  If you have problem getting documentation, if there‘s not a clarity about this person‘s record, if you find there‘s a conflict in their record, if there‘s a conflict of interests, if there is an ethical problem, if there is a high moral problem, it‘s kind of like some of them said.  It‘s like child pornography.

MATTHEWS:  An Abe Fortas case.

LOTT:  You‘ll know it when you see it. 

MATTHEWS:  Right. 

LOTT:  And...

MATTHEWS:  Do you think it is that objectively discernible, that you can actually spot the extraordinary case?

LOTT:  Look, Chris, I‘m an incurable optimist. 

MATTHEWS:  Right.  OK, here‘s where I‘m asking...


LOTT:  I think you can—you can pull this off. 

MATTHEWS:  Do these seven Democrats have the fiber to stand up to the NARALs and the left-wing groups that say to them, oh, this is extraordinary; you can‘t—you‘ve got to filibuster this?  The seven Democrats, will they stand up and say, we‘re sticking to the deal? 

LOTT:  I hope they will.  You know, some of these Democrats are from red states, Louisiana or Arkansas.

MATTHEWS:  Most of them are.  I think that‘s interesting.

LOTT:  Nebraska.  So, they aren‘t—they don‘t answer to NARAL or People For the American Way, these left-wing extremist groups.  They‘ve got a different constituency that they‘re thinking about.

And does anybody think Bob Byrd is influenced by any pressure group of any kind one way or the other?  He may be, but that‘s not been his track record. 

MATTHEWS:  I wouldn‘t think that the pro-choice women are his constituency. 

LOTT:  No.


MATTHEWS:  Anyway we‘re back with—we‘ll be back with Senator Trent Lott in a moment.

And, later, will Senator John McCain pay a political price for the deal he brokered?

This is HARDBALL, only on MSNBC. 


MATTHEWS:  We‘re back with Senator Trent Lott.

You‘ve been a leader. You‘ve been a regular member.  You‘ve been a staffer years ago.  You‘re really a man—you‘re a man of Capitol Hill, right?

LOTT:  Yes. 

MATTHEWS:  You‘ve seen it been tough.  You‘ve seen it been divisive. 

LOTT:  Sure.

MATTHEWS:  Are we going to have a more productive United States because of this compromise? 

LOTT:  We could.  And I hope we do.  We should.

We‘ve got work to do.  A lot of people have been paying attention to the debate over the judges, but I have a feeling that a lot of people out there, the small business men and women, the farmers, the family people, they are saying, wait a minute, now, how is this affecting me? 

MATTHEWS:  Right. 

LOTT:  Gasoline prices are hurting me.  I‘ve concerned about this immigration problem.  Our borders are not secure.  Why don‘t we have a highway bill?  Why are they not dealing with things that affect my everyday life? 

And, by the way, we got this deficit that could very well affect our children.



LOTT:  So, I hope what will come out of it is that Harry and the Democrats will stop slow-rolling and obstructing everything.  Let me tell you, Chris, they‘ve been doing it all year.  Now, I think it is counterproductive. 

MATTHEWS:  So, this is kind of a...


LOTT:  And this could change—this could change the dynamics, yes.

MATTHEWS:  Well, let‘s talk about particulars.  Do you think the Bolton nomination will go through? 

LOTT:  I think it probably will. 

MATTHEWS:  Do you think that you‘ll get an energy bill on the Hill?

LOTT:  We certainly should.  Pete Domenici is working hard on it.  Joe Barton has been involved.  I think—my guess is we will. 

MATTHEWS:  Will it do any good in terms of our independence in the world? 

LOTT:  It won‘t do an instant good, but it could in the long term, if it is balanced, if you have production and you have alternative sources and you have new aspects...


LOTT:  ... of automobiles and alternative fuels and conservation.  If it a balanced package over a period of two or three years, yes, it will have a huge impact.

MATTHEWS:  So, instead of the Democrats just sort of pouting and bitching up there, they‘re going to actually participate in legislation now?

LOTT:  Look, Chris, you would expect this from me in a way.  But I‘ve never seen the Democrats in such a no mood.  Just say no. 


LOTT:  They don‘t—what are they for?  What is their...


MATTHEWS:  Well, here‘s the question.  On Social Security reform, will the Democrats now come out with an alternative? 

LOTT:  I don‘t know if they will.  I think that they think they‘ve been playing that one smart.  And I guess the argument could be made, maybe we haven‘t played it smart enough. 

MATTHEWS:  Right. 

LOTT:  That is an issue I think is further down the road this year. 

MATTHEWS:  Lindsey Graham said that this deal—he‘s—he‘s—I think he is a realist.  Of course, he has a plan himself about taxation on Social Security.  He thinks that—that Social Security has gone overnight from being no chance in hell to some chance, Social Security reform. 

LOTT:  I believe...

MATTHEWS:  Do you still think it has not got a chance? 

LOTT:  I think believe that we have a chance to do it, because I think we should do it.  And I‘m not always—and over the years, I‘ve fought some of the moves in that direction.  And, in fact...


MATTHEWS:  That‘s why you‘re still around. 


LOTT:  Well, I fought very aggressively against the—the—the Senate plan back in the mid-‘80.  I helped shoot it down at the White House. 


LOTT:  But times are different.  Demographics are different.  The solutions are different.  We can do this.  And I had a lot of conversations with former President Clinton.  And we talked about how it could be done.  It could be done relatively fairly and easily, if we will just face up to it. 

MATTHEWS:  OK.  Thank you very much, Senator Trent Lott.


MATTHEWS:  As always. 


MATTHEWS:  In a moment, members of the religious right say Senator John McCain is living up to his reputation as a Republican maverick.  And they don‘t like mavericks.  Tony Perkins of the Family Research Council says he has got some explaining to do.  That‘s McCain has got some explaining to do.  He joins me next.

And, at 9:00 p.m. tonight, a special edition of HARDBALL.  The filibuster debate is over, but the abortion rights issue keeps forcing this debate.  Let‘s talk about that when we get back.

This is HARDBALL, only on MSNBC. 



MATTHEWS:  Welcome back to HARDBALL.

The Senate deal last night is a setback for Majority Leader Bill Frist, who has now been upstaged by John McCain.  McCain has long been considered a maverick within the Republican Party.  And the air in Washington today was thick with suggestions that there is now a price on McCain‘s head. 

HARDBALL correspondent David Shuster reports. 


DAVID SHUSTER, NBC CORRESPONDENT (voice-over):  If there was any doubt about John McCain‘s leading role, it was erased Monday night when he was the first senator to step to the microphones. 

SEN. JOHN MCCAIN ®, ARIZONA:  We are here, 14 Republicans and Democrats, seven on each side, to announce that we have reached an agreement to try to avert a crisis in the United States Senate. 

SHUSTER:  For weeks, McCain led the negotiations.  He got a last-minute boost by two old lions of the Senate, Republican John Warner and Democrat Robert Byrd.  But it was McCain who effectively brokered the overall deal. 

MCCAIN:  Look, the bottom line here, I did what I think was right. 

SHUSTER:  Today, some Republicans are convinced that Majority Leader Frist had the votes to go nuclear and kill the filibuster.  And Christian conservatives are calling McCain a traitor.  Focus on the Family spokesman James Dobson says the McCain deal is a complete bailout and a betrayal.  And Dobson warned that McCain will be punished if he runs in the 2008 Republican presidential primaries. 

McCain has faced off with Christian conservatives before, most notably in his 2000 presidential campaign. 

MCCAIN:  Neither party should be defined by pandering to the outer reaches of American politics and the agents of intolerance, whether they be Louis Farrakhan or Al Sharpton on the left or Pat Robertson or Jerry Falwell on the right. 


SHUSTER:  But when McCain made that gambit, he was already starting to lose Republican primaries to George W. Bush.  Now McCain is considered the 2008 Republican front-runner.  He is helping President Bush promote Social Security reform.  He campaigned hard last year for President Bush‘s reelection.  And McCain has worked feverishly to blunt Republican divisions. 

However, in today‘s “Washington Times,” the headline read, “Seven Republicans Abandon GOP on Filibuster.”  And Republican Chuck Hagel, a friend of McCain‘s, who is also considering a run for president, said—quote—“I am disappointed that the agreement reached by 14 senators does not guarantee up-or-down votes.  This is not a good compromise and I do not support it.”

On the Democratic side, left-wing groups are infuriated that former Alabama Attorney General William Pryor is one of the three nominees who will now get through. 

WILLIAM PRYOR, FORMER ALABAMA ATTORNEY GENERAL:  I believe that abortion is morally wrong.  I‘ve never wavered from that. 

SHUSTER:  Pryor has also never wavered from calling Roe v. Wade, the decision that legalized abortion, an abomination.  But the frustration on the left has been somewhat muted, in part because there are no Democratic stars to aim at.  Senators Hillary Rodham Clinton, John Kerry and even Ted Kennedy stayed far from the negotiations. 

(on camera):  And by staying out of this compromise, those Democrats will not be punished by party activists, unlike Senator John McCain, who now has the right wing of the Republican Party taking aim at him again. 

I‘m David Shuster for HARDBALL in Washington.


MATTHEWS:  Thank you, David. 

Pretty good report, huh?

I‘m here with Tony Perkins, president of the Family Research Council, which helped put on “Justice Sunday: Stopping the Filibuster Against People of Faith.”  And Kim Gandy, on the other side of the argument, is president of the National Organization—I love saying this—For Women, right, Kim?


MATTHEWS:  Let me ask you, are you guys mad at McCain? 


I think McCain, he—I think he betrayed the majority leader and I think he betrayed the conservatives that gave the Senate expanded majorities.

MATTHEWS:  Did you have the votes? 

PERKINS:  I think—yes, I think we did. 

MATTHEWS:  “Think we did”? 

PERKINS:  From every indication.  I‘m not there to count... 


MATTHEWS:  I think you did, too.  I‘m just trying—I‘m trying to squeeze you here, because I think you did, too.  I think you had...


PERKINS:  Yes.  I mean, an hour before the compromise was announced, reports we had from the leader‘s office was, they had the votes. 

MATTHEWS:  In other words, McCain walked into what looked like a Republican victory and stole—stole defeat from the jaws of victory, as far as you‘re concerned. 

PERKINS:  They absolutely—they stole defeat out of the mouth of victory. 


MATTHEWS:  So, you could have had a—we could go to bed tonight knowing there‘s no more—no more filibusters of court nominees ever. 

PERKINS:  This could have assured up-or-down votes for the president‘s judicial nominees.  And we could move on to the business of the American people.

MATTHEWS:  So what do we have now?  What‘s the scenario now?  What‘s -

·         what are we looking at now?

PERKINS:  We have punted.  We have punted.  This is justice delayed.  We‘re going to be back at this point when we come up with Supreme Court justices. 


Here‘s my sense.  And I don‘t know what is going to happen, because I was wrong about this.  I thought your—the deal would hold.  I thought—and I was right.  We agree on that.  Frist had the deal.  It‘s just that other forces came to play, like John McCain. 

Frist is ready to go with the nuclear option the minute the Democrats start screwing around, the minute they pull an extraordinary perception out of nowhere, like an Antonin Scalia.  He‘s extraordinary?  No, he‘s been around the court for all these years.  He was approved the first time by 98 percent, 98 senators.  Do you think he can do it?  Do you think he will get the 50 votes if he goes next time on this thing?  Will he get Specter?  Will he get—will he get the 50 he needs? 

PERKINS:  I think the terrain that they will have to fight this on next time will not be as favorable as it was this time.  But I think...


MATTHEWS:  Why not?  Why won‘t it be better if he can say, I told you so; don‘t trust these Democrats? 

PERKINS:  Well, because I think—I think the case has been building over the last several weeks for this.  And now it has kind of let the pressure off. 

However, you have three nominees that are now going to be voted on that were considered on Monday morning as extreme and out of the mainstream, Pryor...

MATTHEWS:  By the Democrats. 

PERKINS:  By the Democrats.  Owen and Brown.  They‘re now going to get up-or-down votes on the floor of the House.

They were targeted because of their deeply held personal beliefs, according to Charles Schumer.  That‘s now acceptable.  That was not extraordinary in triggering a filibuster, apparently.  So, if there‘s a Supreme Court nominee that meets the same criteria, they‘ll have a hard time...

MATTHEWS:  So, you feel that these three that have been accepted by the deal, they have opened the door for those kinds of nominees to be considered for the high court?

PERKINS:  I do. 

MATTHEWS:  Boy, you are optimistic. 


MATTHEWS:  Let me go right now to Kim, from the other perspective. 

Are you—speaking from the liberal side of things, are you happy with this compromise? 

GANDY:  Well, no.  We‘re...

MATTHEWS:  From a women‘s rights issue, an abortion rights issue? 

GANDY:  No.  We‘re not happy with the compromise, of course, because...

MATTHEWS:  Why not?  Explain to me why not.

GANDY:  Well, because it is not really a compromise.  It is a lot like a mugger who says, give me what I want or I‘ll shoot you or give me what I want and I won‘t shoot you and saying that that‘s a compromise, because he got what he wanted and he didn‘t shoot you.  That doesn‘t make it a compromise. 

This whole nuclear option is all about greed and about abuse of power.  All these guys talking about how important and how deeply held they feel about up-or-down votes. 

MATTHEWS:  What would you have done if you had been a Democratic senator?  What would you have done if you had voted on the floor?

GANDY:  For one thing, I would have said a lot more about where were they on guaranteeing up-or-down votes when there were 60 of Bill Clinton‘s nominees that didn‘t get an up-or-down vote, including two nominees for this very seat that Priscilla Owen is nominated for?  One of those nominees should have had an up-or-down vote.  It‘s all about abuse of power.

MATTHEWS:  Seven Democrats voted for this compromise, which basically gives an open door to these three conservative justices to be confirmed, Ben Nelson of Nebraska, Joe Lieberman of Connecticut, Mark Pryor of Arkansas, Robert Byrd of West Virginia, Mary Landrieu of Louisiana, Ken Salazar of Colorado, and Daniel Inouye of Hawaii. 

Are you going to pressure these people to see an extraordinary situation the next time a judgeship is brought up?  Are you going say, oh, here‘s an extraordinary case; you don‘t have to go by this deal now?

GANDY:  I believe that those individuals will recognize an extraordinary situation. 

MATTHEWS:  And what would be an extraordinary situation? 

GANDY:  And I think that there are...

MATTHEWS:  What would be extraordinary?

GANDY:  Well, any of these three being nominated to the Supreme Court gives you an instantly extraordinary situation. 

MATTHEWS:  OK, give me...


MATTHEWS:  Let me run it by both of you now.

GANDY:  Pryor, Brown, Owen.

MATTHEWS:  The president is a smart politician, President Bush.  Whatever you think of his views or his points of issues—and we can argue about them all day—he is nobody‘s fool about politics, politics.  He will not send up somebody who is perceived or portrayed effectively as a whack job, OK? 

GANDY:  I‘m not...


MATTHEWS:  If he puts up Justice Scalia—no, here‘s a case.


GANDY:  I think he might...


GANDY:  ... that.

MATTHEWS:  Justice Scalia as chief justice, moving him up from associate justice, brings in Alberto Gonzales from attorney general, which has already—he‘s already been confirmed, former attorney general of Texas, brings him up and puts him up for associate justice as the first Hispanic. 

How will you guys characterize that as extraordinarily bad judgment? 

GANDY:  Oh, you know...

MATTHEWS:  Would you? 

GANDY:  I think that he—number one, I don‘t think he would be likely to do that, because I think Tony and his crowd would try to filibuster Alberto Gonzales. 

MATTHEWS:  Would you call that an extraordinary case and therefore not subject to this arrangement, this deal? 

GANDY:  I think it would—it would depend.  We really haven‘t done our...

MATTHEWS:  What is this depend thing?  What would be extraordinary about Justice Scalia, who has been around all these years? 

GANDY:  No, you said Gonzales.  You didn‘t...


MATTHEWS:  No, both of them.  I said Justice Scalia for chief justice to replace Rehnquist and Gonzales to replace—to replace Scalia. 

GANDY:  I doubt if Scalia would be filibustered.  That would surprise

me if he were filibustered.  I

MATTHEWS:  OK.  How about Alberto Gonzales?

GANDY:  I think he should be, but I think it‘s unlikely that he would be.

MATTHEWS:  OK.  How about Alberto Gonzales?

GANDY:  I think that the Republicans are going to oppose Gonzales, because he was so critical of Priscilla Owen. 

MATTHEWS:  Where do you see the president going at the best—not the most extreme, but it is Christmas morning attitude.  But where do you think the president is going to go on using these court operations, these openings that are apparently going to come because Rehnquist is in poor health.  He arrived the other day at the court in a wheelchair.  He is not in good health.  If that seat opens for chief justice, what do you see the president doing? 

PERKINS:  Well, I—why not see him elevate one of these, like Brown or Owen, that have just come through this process?


MATTHEWS:  Do you think he might do that? 

PERKINS:  Why not?  How would they argue...


MATTHEWS:  That wouldn‘t cause a four-alarm fire with the Democrats? 

GANDY:  Sure it would.

PERKINS:  How would they argue one day that it is extraordinary and the next day—or one day, it is not extraordinary, the next day it is?


MATTHEWS:  Because that was the compromise.

GANDY:  They didn‘t say it wasn‘t extraordinary. 

MATTHEWS:  They didn‘t say it wasn‘t extraordinary.  They made a compromise.

MATTHEWS:  They said, we would accept these three and then move on to set this new standard. 

GANDY:  That‘s right. 

PERKINS:  And it shows there‘s no consistency. 

MATTHEWS:  Well, that‘s true.

PERKINS:  And, therefore...


MATTHEWS:  But there‘s no consistency on the Republican side either, because your—the Republican side, the conservative side, agreed to dump two of these and let three go through. 

PERKINS:  They would. 

MATTHEWS:  That‘s interesting.

PERKINS:  But that would put this back on the table. 

GANDY:  Right. 

PERKINS:  Where those seven Republicans...


MATTHEWS:  So, you really look at me with wide eyes and say you really want the president to put up—put up Brown or Owen for chief justice of the Supreme Court? 



PERKINS:  Not chief justice.  Not chief justice. 

MATTHEWS:  Well...


PERKINS:  Well, I think Scalia would be a great pick. 

MATTHEWS:  He would be OK...


MATTHEWS:  Great pick.

PERKINS:  But I think one of these others could be an associate.

MATTHEWS:  You just made news here.  I like you making news.  Tony Perkins says Scalia would be a great pick.

Kim Gandy, thank you.

In a moment, who will suffer the most political fallout over this compromise?  We‘ll ask a man of the right, Pat Buchanan, and a man—a woman of the left, Hilary Rosen. 

And you can receive HARDBALL‘s daily e-mail briefing.  Just log on to our Web site, HARDBALL.MSNBC.com.

Thank you both.


MATTHEWS:  So, who is angrier over this deal, the right or the left? 

Pat Buchanan and Hilary Rosen will be here.



MATTHEWS:  Welcome back to HARDBALL.

In Washington, it is usually the liberal and conservative wings of the party that dictate the terms of the game.  With Monday‘s filibuster deal, however, the center prevailed and the core constituencies of each party left the table upset.  So what happens now? 

Well, we have two great people here to talk about it.  Pat Buchanan is an MSNBC political contributor and a veteran of many Washington battles.  I love that.  And Hilary Rosen is a liberal political activist, somewhat younger, and a Democratic consultant. 


MATTHEWS:  Thank you. 


MATTHEWS:  Are you upset about this deal, Hilary Rosen?


MATTHEWS:  As a woman of the left? 

HILARY ROSEN, DEMOCRATIC STRATEGIST:  I think we would have lost anyway.  And...

MATTHEWS:  So, we got—you got the best deal. 

ROSEN:  So, I think we got the best deal we could. 

And the reason why Democrats are happier today—I think Democrats gloating is probably a little overstated.  But the reason why they‘re happy is because the right wing is so mad.  And so what could be better than to have all of Pat‘s friends furious?

MATTHEWS:  You don‘t have to speak for the right wing.  It is here. 


MATTHEWS:  Pat Buchanan, speaking for the paleontology of the Republican Party, the old wing, what was wrong with this deal? 

PAT BUCHANAN, NBC POLITICAL ANALYST:  Well, simple.  The Republicans had the votes.  They had 50 votes.  They could have gotten seven judges as of yesterday.  They could have disarmed the Democrats.  They had the road wide open to the Supreme Court and they gave the game away.  They had it won and gave it away. 

The problem is not John McCain.  He always does deal like this.  The problem is Bill Frist and the Republican conservative majority.  Why didn‘t they say, Mr. McCain has cut his deal, but the Senate doesn‘t abide by it; we‘re going to go ahead and vote on every single judge that comes out of committee?

MATTHEWS:  Well, they are going to do that.  They‘re going to vote for cloture as well.  And if they don‘t get cloture, these guys die. 

BUCHANAN:  Well, the point is—I mean...

MATTHEWS:  They are not going to get the 60 votes.  You‘ve just outlined the plan. 

ROSEN:  They wouldn‘t have gotten the votes.

BUCHANAN:  Well, the point is—I disagree.  I agree with Tony Perkins.  The iron was hot yesterday.

MATTHEWS:  That‘s right.  I agree.  But the way that things are going to work right now, they‘re going to take up the three judgeships that the Democrats have agreed not to veto.  Then they‘re going to—or not to filibuster.  Then they‘re going to bring up the other two they are going to filibuster.  Three will win.  Two will die.  That‘s the deal. 

ROSEN:  So you think...

BUCHANAN:  The deal—all right, why would you let anybody die?  Why would you sell out these judges whom the president has appointed?

MATTHEWS:  Who is the bad guy here?  Was it Frist in letting the Republican members, the seven members cut off—cut that deal? 

BUCHANAN:  I think—well, Frist has failed.  He is clearly the failure.  He is the leader of the majority.  And McCain led the compromise and the sellout. 

And he got away with it, because Frist did not lead.  Now, what‘s needed in this party is some young conservative who will stand up and take on John McCain, the way Frist should have. 


MATTHEWS:  Well, look at the members who joined McCain at the end here.  You can join in this, too, because it is—we‘re talking about powerful political theater here. 

Not only did they get the six people they were talking about.  They enlarged the group.  They lost Specter, but they brought in DeWine of Ohio.  He‘s hardly a maverick.  I never thought of him as a maverick.  And Lindsey Graham, a conservative.  They brought these two fellows in.  They enlarged the group, the rump group, to seven. 

ROSEN:  This is when Bill Frist failed.

MATTHEWS:  How did they do that?  Who let that—you‘re blaming Frist.  But how did Frist let that happen?

ROSEN:  Bill Frist failed when he said at the outset of this session, whatever the right wing wants, they get, that Jim Dobson—all, of a sudden, for Jim Dobson, it wasn‘t about individual judges or it wasn‘t about substantive issues.  It was about controlling the agenda and the schedule and the chairmanships of the committees of the Congress. 

BUCHANAN:  Hilary, none of these judges—all right.


ROSEN:  That‘s when Bill Frist failed.  So, he could have turned around and not had anybody following him.  And it‘s not about being a great leader.  It‘s about doing what your caucus needs you to do to protect them. 

BUCHANAN:  All right, none—not one of these judges was nominated by Dr. Dobson.  They‘re all nominated by George W. Bush.  He believes in these fellows.

ROSEN:  Who never expected to get them all through. 

BUCHANAN:  Hold it.  Hold it.


BUCHANAN:  He believes in these people.  They‘ve been hassled.  They‘ve been hectored.  They‘ve been beat up.  They‘ve been held up for four years.  They were all about to be liberated, all seven hostages.  And McCain goes in and cuts a deal.  We‘ll take just three when we‘ve got all seven liberated. 

I‘ve never seen in politics someone who throws in a winning hand and agrees to split the pot when you‘ve beaten the other guy showing. 

MATTHEWS:  Well, you know the inside of this politics.  Why do you think DeWine jumped into that rump group?  Why do you think Lindsey Graham did? 

BUCHANAN:  I don‘t know, Chris, why they did it.  I do know that a leader holds his troops in line and says—I‘ll tell you what I think.  I think Frist might have wanted this deal.  I think perhaps Frist might have wanted comity.  I think he might think that is more important than getting all the judges. 

MATTHEWS:  To look like a loser?

BUCHANAN:  These people have a...


BUCHANAN:  Why would he want to look like a loser?  He is running for president. 

BUCHANAN:  These people have a spirit of compromise inside them, even when they‘re going to win the fight. 

MATTHEWS:  But, but you—that doesn‘t...

ROSEN:  No, see, that...

MATTHEWS:  Pat, reconsider that.  Bill Frist is running for president.  To run for president, you must look strong.  McCain is the one looking strong now.  He‘s looking effective now.

ROSEN:  That‘s right. 

BUCHANAN:  I don‘t know why Frist didn‘t say, shut it down, fellows. 

We‘re going to have a vote. 

MATTHEWS:  Right.  Why didn‘t he do it? 

BUCHANAN:  I don‘t know. 

ROSEN:  Two—two things.  Last week, we thought that Frist couldn‘t lose in this, that either they voted and lost...

MATTHEWS:  Well, I think you‘re right.  I think we all agree on that. 

ROSEN:  And...

MATTHEWS:  He had the votes.

ROSEN:  And he would have given the chance to go forward or he would have won and looked like a hero. 


MATTHEWS:  This is going down in history, by the way.


MATTHEWS:  You‘re right, Pat.  All of you are right.  Everybody agrees.  This is going to go down in history as a profound phenomenon.  Why did the Republicans, facing an opportunity for historic change in control of the Senate and the judiciary, throw it away?

We‘ll be back more with...

BUCHANAN:  Why isn‘t Bush angry? 

MATTHEWS:  Because I guess he‘s been told that he‘ll get a vote on the Supreme Court.  And that‘s what he really cares about. 

Back with Pat Buchanan and Hilary Rosen in just a moment.  We‘re going to talk about fighting the bad guys in the middle, which is what is going to on here.

And don‘t forget to check out political blog Web site, Hardblogger. 

You can get—you can find it on HARDBALL.MSNBC.com.


MATTHEWS:  We‘re back with Hilary Rosen and Pat Buchanan.

Your turn, Hilary, from the left.  What was wrong with this deal? 


ROSEN:  What‘s wrong with this deal is giving away Pryor, because he‘s somebody who I think we could have beaten and even probably gotten more than 60 votes to beat him, because he‘s just a bad...


MATTHEWS:  Bill Pryor. 

ROSEN:  Yes. 

MATTHEWS:  And his candidacy you think was—was tainted because he‘s very Catholic and he opposes abortion morally. 

ROSEN:  He is just aggressively anti-choice, anti-gay, anti-environment.  He‘s been terrible. 

But this is the thing, that this is the promise for Democrats here.  The Republican moderates and mavericks, as we‘re now calling them, stood up to their leadership. 

MATTHEWS:  Well, you‘d better call them mavericks, because John McCain is not a moderate.  He is a conservative. 

ROSEN:  That‘s right.  No—no question. 



ROSEN:  They stood up to their leadership.  And that‘s the promise for Democrats.  That‘s the winning ticket every time, splitting the Republicans. 

MATTHEWS:  What, a divided opposition?


ROSEN:  Because you can‘t depend always on the Democratic unity. 


ROSEN:  Splitting the Republicans every time. 

MATTHEWS:  What I want to, Pat...


BUCHANAN:  Look how phony it is, though, this—Priscilla Owen was the extremist.  She is this and that.  She gets, what, 81 votes today.  It was all a fraud, all a fraud.  These are good, decent, honorable people.  Everybody knows it. 

I, frankly, wish you all had held up Pryor and the deal had collapsed, because we would have seven now, instead of three. 

MATTHEWS:  Let me ask you both a question.


MATTHEWS:  I know you have worked in interest group politics.  And, Pat, you know all about interest groups from the right.

Would the United States Senate be different if you locked them in a room, sequestered them and said, you can‘t hear from the—no more e-mail from the left and the right, no more listening to Ralph Neas, no more listening to James Dobson; make up your minds?  Would it be a different Senate? 

BUCHANAN:  Yes.  I think you would have a lot more—you would have -

·         certainly, from the conservative side, you would have a lot more moderates, until they got outside and heard the screams. 



BUCHANAN:  And then they would go back in and be more conservative. 

MATTHEWS:  So you like the fact that it is transparent and it can be attacked from outside. 


BUCHANAN:  Well, look, they‘re a lot more moderate than their constituents are. 

But, look, politics is about something.  And conservatives fight their hearts out.  Nothing is more important than the Supreme Court, Chris.  Nothing.  We‘ve been fighting this...

MATTHEWS:  Is the abortion issue the primary issue here?

BUCHANAN:  It is everything, the whole social, moral, cultural revolution being imposed from above.  This is a counterrevolution.  The Supreme Court is what you have to take back.  And they‘ve given away the store.  It is unbelievably disheartening. 

MATTHEWS:  What would conservatives like to get back in terms of the store?

BUCHANAN:  Simply...

MATTHEWS:  Is it the decision by the Massachusetts judge to create a gay marriage? 

BUCHANAN:  What we want is, get the Supreme Court out of these decisions.  And you and I, our elected officials, decide them all, Chris, so we can throw them out. 

MATTHEWS:  Gay marriage, abortion rights, the whole thing, stem cell, everything should be votable?


BUCHANAN:  Everybody back to elected legislators and elected executives.  That‘s how democracy, representative republic works. 

ROSEN:  Those six Republicans knew that this country would throw the bums out.  They would never stand for it if a Supreme Court justice was taken by raw, sheer power with a rule change that was unconstitutional. 

BUCHANAN:  Fifty-one votes is raw, sheer power?  Only in America. 



ROSEN:  Changing the Senate rules... 


BUCHANAN:  Majority rule is raw, sheer power. 

ROSEN:  To push—changing the Senate rules to push through that agenda would not have been stood for.  And that is what those moderate Republican and maverick Republicans knew.


BUCHANAN:  For 45 people to use a filibuster veto and dictate who is on the court when they cannot win a presidential election and cannot win the Senate, cannot win the House.


MATTHEWS:  You‘re good, Pat.  You ought to run for president. 


ROSEN:  ... sent up those 10 names.  He never expected to get all of those people. 

MATTHEWS:  That was a persuasive argument about making these all democratic decisions.  Vote on every one of these issues. 

BUCHANAN:  That‘s all we have asked. 

MATTHEWS:  It sounds great to me.

Anyway, Pat Buchanan, Hilary Rosen.

I‘ll be back here tonight for a special edition of HARDBALL at 9:00 tonight Eastern time. 

Tomorrow, Academy Award-winning actor and activist—what a great actor he is, whatever you think of his politics—Tim Robbins.

And be sure to tune on “IMUS IN THE MORNING” tomorrow.  I‘m going to be on there at 7:29 Eastern tomorrow morning to face the man, the I-Man.

Keith is next, by the way.  The parade of celebrity witnesses continues at the Jackson trial.  Today, Jay Leno showed up.  But are celebrity witnesses really helping Jackson‘s defense or hurting his case?  That‘s next on “COUNTDOWN” with Keith.



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