updated 5/25/2005 2:31:33 PM ET 2005-05-25T18:31:33

Guest: George Allen, Eli Pariser, Patrick Mahoney, Nan Aron, C. Boyden Gray, Mike Allen, Steve McMahon

CHRIS MATTHEWS, HOST:  It‘s about abortion, not about the filibuster, or who wears black robes and sits on high benches.  It‘s about whether individual Americans have the right to have an abortion or they don‘t.  That‘s really what‘s driving this fight in the Senate and don‘t you forget it.

Let‘s play HARDBALL.

(BEGIN VIDEO CLIP)

ANNOUNCER:  The delayed fireworks of last night‘s Senate filibuster deal are starting to explode.  Abortion rights groups are furious at what they see as the betrayal of seven Democrats of what they believed to be a constitutional right to an abortion. 

UNIDENTIFIED FEMALE:  These nominees have records of hostility to individual rights. 

ANNOUNCER:  Conservative groups are just as furious at the seven Republicans of the fundamental principle of the up-and-down vote on federal judgeships, especially the Supreme Court. 

UNIDENTIFIED MALE:  You cannot bend on that, because once you do, the abortion argument is doomed. 

ANNOUNCER:  The clash of principles, which was averted last night, continues to divide the world‘s greatest deliberative body. 

SEN. BILL FRIST (R-TN), SENATE MAJORITY LEADER:  The constitutional option remains on the table. 

SEN. HARRY REID (D-NV), SENATE MINORITY LEADER:  Abuse of power will not be tolerated. 

ANNOUNCER:  Behind it all, the lurking question:  Does an American have the right to choose an abortion or does the government have the right to deny that freedom? 

(END VIDEO CLIP)

MATTHEWS:  Good evening.  I‘m Chris Matthews.  Welcome to this special edition of HARDBALL. 

As the smoke clears on the filibuster fight, the real issue in the Senate deal on judicial nominees is emerging.  And it‘s abortion.  In 1973, the Supreme Court ruled a woman has a right to choose an abortion.  That same court could overturn it. 

Nine justices with lifetime appointments have the power.  That‘s why the dramatic events surrounding the president‘s judicial nominees are so important.  A Supreme Court vacancy could happen as early as this summer, with Chief Justice William Rehnquist in poor health.  And when it does, this new bipartisan deal could affect how the next justice is chosen. 

I spoke with Republican Senator George Allen of Virginia late today, and began by asking him why he doesn‘t like the deal. 

(BEGIN VIDEOTAPE)

SEN. GEORGE ALLEN ®, VIRGINIA:  Well, it‘s a good deal for three nominees who should have been accorded a vote all along.  And so it‘s good for them.  But it‘s certainly not a good deal for, two that have been, in effect, been said, “You‘re going to get a real nice wake as we toss you overboard at sea.” 

And for those of us who care about the principle that judicial nominees ought to be accorded the fairness and due process of an up-or-down vote on the Senate floor, this doesn‘t solve that.  And moreover, it doesn‘t solve the issue and what the rules of engagement will be in the event of a vacancy in the Supreme Court. 

MATTHEWS:  What do you make of the term “extraordinary?”  Do you trust the Democrats to say, “Oh, this guy is a real, you know, whack job.  There‘s no way we can nominate him or confirm him”?  Or do you think they might use it on anyone who doesn‘t agree with them on abortion rights? 

ALLEN:  I think the latter.  And if you look at what they‘ve done with Priscilla Owen, who they‘re actually now voting on.  And here‘s a person who had unanimous recommendation from the American Bar Association, elected and reelected in Texas.  And look at how she was demonized and vilified.  Look what they did to Miguel Estrada in the past, because they didn‘t want to have him on the D.C. Court of Appeals because then he would have the record of performance that the president could actually make the first Hispanic-American appointee to the Supreme Court. 

So if you look at their past performance, they‘re not restricted by the qualifications.  These have been well-qualified men and women who‘ve been held up for many years.  And you‘ve seen the vilification and the aspersions made against these individuals. 

So I think this battle will have to be fought in the future.  And I think we need to fight it and fight it, in addition, maybe even before we get to the Supreme Court, on the case of William Myers.  William Myers is one those of who, if he‘s not thrown overboard, he‘s right on the edge of the boat to be pushed over. 

MATTHEWS:  Right.

ALLEN:  He is nominated to be on the Ninth Circuit Court of Appeals. 

That is Exhibit A of a court, an adventurous activist court. 

MATTHEWS:  That‘s the San Francisco court.  It‘s... 

(CROSSTALK)

ALLEN:  Yes.  And the one that knocked out the Pledge of Allegiance at schools because of the words “under God.”

MATTHEWS:  It could use some balance, you‘re saying? 

ALLEN:  Yes, it should use some—yes, some common sense. 

MATTHEWS:  Fair and balanced court that isn‘t there now, right? 

ALLEN:  Yes, one that actually respects the will of the people. 

MATTHEWS:  Let me ask you this.

ALLEN:  How about that?

MATTHEWS:  If it weren‘t for the abortion rights issue, where the left wants to have abortion rights, the right wants to have it thrown back to the states, would there be this much passion in this fight over the court?  Is that the driving passion, the abortion issue?  I mean, your party is pro-life.  The Democrats are pro-choice.  You disagree.  It‘s a fundamental difference. 

ALLEN:  Yes, there‘s a difference there, but it‘s manifesting itself in other cases.  You have the Pledge of Allegiance case, striking out because of the words “under God.”  Recently, you had a court strike down in Nebraska a law that said marriage should be between a man and a woman. 

Just this week in New Hampshire, a parental notification bill that parents have to be notified if their young, unwed daughters go through the trauma of an abortion.  A federal court has struck down that law. 

So there are a variety of issues.  And it‘s one of a feeling that I have, and I think most commonsense conservatives, that judges ought to apply the law, not invent the law.  And you ought to respect the values and the will of the people, as expressed through their elected representatives, whether at the state level or at the federal level. 

MATTHEWS:  The Supreme Court now has two Republican appointees, Clarence Thomas and, of course, Antonin Scalia, that have sat there for years, especially Scalia.  Do you believe that the Democrats who committed themselves to only using the filibuster in extraordinary cases will withhold the use of the filibuster if either of these two men are up for chief justice? 

ALLEN:  I don‘t know what they‘ll do necessarily on chief justice.  I know that it‘ll be a heck of a battle royal when it gets to filling that vacancy.  The chief justice aspect of it, they may have a big fight over that.  But more importantly is the nominee...

(CROSSTALK)

MATTHEWS:  Well, let me just lay this out.  It‘s fairly obviously, if the president‘s going to fill the seat of—probably going to retire Rehnquist as chief justice, right?

ALLEN:  Right. 

MATTHEWS:  So that would have to be somebody of stature.  It could well be Scalia. 

ALLEN:  It could be Scalia.  It could be Clarence Thomas, or he may go from outside of the court. 

MATTHEWS:  Right.  Do you think any of those cases would be viewed as extraordinary and therefore worthy of a Democratic filibuster? 

ALLEN:  No, I think it‘s normal.  If you look at—when chief justices retire, they either appoint from within or...

MATTHEWS:  Do you trust the other side to keep the deal, to only filibuster in extraordinary cases? 

ALLEN:  It‘s going to come down to these seven.  And we‘re going to have to trust them and make sure that their word is good.  Now, how do you define “extraordinary circumstances?”  It‘s fairly extraordinary there‘s a vacancy in the Supreme Court.  And so it‘s such a subjective, vague term. 

MATTHEWS:  I wonder why...

(CROSSTALK)

ALLEN:  And so I wouldn‘t consider it extreme.  I wouldn‘t consider it extreme to have Clarence Thomas or Antonin Scalia as chief justice. 

MATTHEWS:  But you have got 55 Republicans.  If there‘s a chance that 55 Republicans would vote for somebody, or 51 of them would, or 50 plus the vice president, why would it be so extraordinarily bad appointment?  In other words, if the person could get confirmed by a majority of the senators, why does the minority have to withhold the possible use, or hold on to the possible use of the filibuster?  If it‘s extraordinary, both parties would oppose the nomination, wouldn‘t it? 

ALLEN:  Well, everything is extraordinary around here.  It‘s a crisis every week.  And folks in the real world understand that it needs to be a majority vote.  It‘s not 60 votes.  What they‘re trying to do, in effect, is require a 60-vote margin for any judge.  The Constitution does not require that. 

In fact, just ten years ago, Joe Lieberman and Tom Harkin were talking how these filibusters were contrary—contrary—to their constitutional duty and responsibility.  If they apply this approach, the 60-vote requirement, that would mean in the past that someone like Clarence Thomas would not have gotten on the Supreme Court, and Thurgood Marshall wouldn‘t have gotten on the Second Circuit Court of Appeals. 

Then they carry on, Chris, about “Oh, gosh, things are rancorous here and contentious.”  Well, gosh, that‘s the way it is in a representative democracy.  It was on Sunday of this week, in 1856, do you know what was going on in the Senate floor?  Brooks was caning and clubbing Senator Charles Sumner on the floor of the Senate.  So we‘ve had—we‘re nowhere near what it was in 1856.

MATTHEWS:  OK.  Let me ask you to repeat six words after me, OK, Senator? 

ALLEN:  Well, maybe.  I‘ll see what they are. 

MATTHEWS:  John McCain is a loyal Republican. 

ALLEN:  John McCain is a loyal Republican.

MATTHEWS:  OK, he is? 

ALLEN:  John McCain is a Republican. 

MATTHEWS:  Is he a loyal Republican? 

ALLEN:  I think—I‘m not going to get into loyalty.  That‘s... 

MATTHEWS:  No, no, it‘s a simple question.  Is he a loyal Republican?

ALLEN:  He runs as a Republican, so I consider him a loyal Republican.  The Republicans are a very broad and diverse party.  The challenge for our party is to get all the wings of our party flapping together in the same direction. 

MATTHEWS:  You sound like Jesse Jackson.  Why did you have a hard time saying he was a loyal Republican? 

ALLEN:  I didn‘t have a hard time saying it. 

MATTHEWS:  You hesitate, and you‘re thinking.  The wheels are turning. 

ALLEN:  Because anytime you want to put words in my mouth, I hesitate. 

MATTHEWS:  I accept that.  Do you think John McCain is a loyal Republican? 

ALLEN:  I think John McCain is a loyal Republican. 

MATTHEWS:  Because the reason is that...

ALLEN:  He has a choice—John McCain could get elected as an independent, a Democrat, or a Republican.  He runs as a Republican.  He caucuses with us.  I disagree with this agreement.  And there are plenty—

I disagree with him on...

(CROSSTALK)

MATTHEWS:  Do you think he was grandstanding?  Was he grandstanding?

ALLEN:  Was he grandstanding?  No...

(CROSSTALK)

MATTHEWS:  Was he playing to the press?  Was he playing to the independents?  Was he playing to the party base? 

(CROSSTALK)

ALLEN:  Well, I think the press—no, the press loves all this sort of stuff.  But I think that John McCain was doing what he thought was right.  John McCain and I agree on some things, such as not taxing Internet access.  On the other hand, when he wants to restrict the freedom of people to express themselves in political campaigns and association, I certainly opposed that, the McCain-Feingold law. 

So you know, the reality is, is John McCain has his views on certain issues.  Sometimes I agree; sometimes I don‘t.  And you find these odd coalitions on a variety of bills. 

When I got elected to the Senate, when I was running for the Senate, and if someone said, “Boy, you and Ron Wyden are really going to team up a lot.”  I would have said, “What?  Ron Wyden?”  Well, Ron and I have worked together on Internet taxation, or keeping it from being taxed, making sure this country is a leader in nanotechnology, working against cybersecurity issues.

And so we work on a lot of things together.  So you find alliances in different ways in the U.S. Senate.  The one thing that one cannot do is compromise principle.  And on this judge matter, I feel it is my constitutional duty and responsibility to get off those cushy seats in the U.S. Senate, show some backbone, get off my haunches, and vote yes or vote no.  And that‘s what every senator ought to do. 

MATTHEWS:  Let me ask you why that fell apart, because I thought, going into Sunday—in fact, I said it on television.  I thought the deal would hold.  I thought that your party would be able to get 51 or even 50, with the vice president, votes to say up-or-down vote on all court nominees.  Why did it come apart? 

ALLEN:  Well, this group of seven on each side ended up coming up with this compromise, so...

(CROSSTALK) 

MATTHEWS:  But you had the votes, didn‘t you? 

ALLEN:  We sure did have the votes.  And you know what?  A lot of people were geared up for this.  And they were running ads on your show and on the radio.  And people were all geared up.

And it‘s like this was a big football game, and 100,000 people are all geared up for it.  And you come to the game, and it‘s football, and because it‘s drizzling, they call the game, and let six-on-six run for ten minutes.  That‘s not satisfying for people who really were ready to get this issue settled once and for all. 

And that has actually been delayed.  Now, all of these folks, I think, are very honorable in their motives and their desires.  I feel, though, that as a responsibility that I have from the last two years being chairman of the Republican Senate Campaign Committee, recognizing that whether I was in Florida, the Carolinas, South Dakota, Oklahoma, or Alaska, this issue of judges really fired up those who elected us and given us this strong Senate majority. 

And all seven, the magnificent seven new members, they all understand what people out there in the real world expect.  And they expect senators to vote and not hold up these outstanding nominees. 

MATTHEWS:  If you guys get double-crossed or screwed by the Democrats, and they vote to—they say it‘s an extraordinary circumstance and use the filibuster against the president‘s nominee for the Supreme Court this summer, or later, do you think that your party is ready, geared up, to pass the constitutional option? 

ALLEN:  We‘ll have to load up again and prepare for battle.  And, yes, I‘ve told the leader.  And all of us, I think, who have my point of view is that, in the event that happens again, we have to go with the constitutional option.  And I think that some of those out of that 14, or seven Republicans, some of them will join with us, and we‘ll have the votes to exercise it.

MATTHEWS:  Will “I told you so” be a powerful invective against them?  ALLEN:  Told you so to who? 

MATTHEWS:  If I tell you—If you say “I told you so” to those seven who bucked your party and broke the deal.  You could have done it today.  You could have done it today. 

(CROSSTALK)

MATTHEWS:  Will you be able to say, if you lose the—if the Democrats start playing games with you again, won‘t you be able to say to those seven who cut the deal, “You guys made a mistake.  You trusted those guys”? 

ALLEN:  We‘ll just have to take the situation as it is.  That‘s what‘s so disappointing.  We had the votes.  We could have gotten this settled now and not have to go through all of this in the midst of the Supreme Court vacancy. 

And the fact that this has happened, it‘s happened.  We have to go forward, but keep our resolve.  And as far as I‘m concerned, we need to keep fighting to make sure every one of these nominees who gets out of the Judiciary Committee gets a fair up-or-down vote. 

And we are not bound by this deal to throw overboard, whether it‘s Judge Saad or whether it is William Myers, or any others who have now—there‘s some speculation and rumors that others, the Democrats feel are—should be subjected to this filibustering and this 60-vote supermajority vote. 

MATTHEWS:  Senator George Allen of Virginia, thank you. 

ALLEN:  Great to be with you.

MATTHEWS:  I think you might run for president some day.  Anyway, thanks for coming on.

ALLEN:  Good to be with you.

(END VIDEOTAPE) 

MATTHEWS:  In a moment, what does the compromise over the filibuster mean for the pressure groups?  Are they the big losers in this deal?  This is a special edition of HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

(NEWSBREAK)

MATTHEWS:  Welcome back to HARDBALL.

Senators and future presidential candidates aren‘t the only winners and losers in this filibuster deal.  The special interest groups have been fighting the battle for the future of the judiciary for years now.  How did they come out of this fight?  And how will this affect their campaigns for the future of the Supreme Court? 

The Reverend Pat Mahoney is the director of the Christian Defense Coalition, a conservative Evangelical organization.  And Eli Pariser, who is the executive director of MoveOn.Org, a liberal grassroots organization. 

Thank you, Eli, for joining us.  You‘re up in New York.  We‘re down here in Washington.  I‘m here with Reverend Mahoney.  What does MoveOn.org mean?  I just have to get that straight.

ELI PARISER, MOVEON.ORG:  Well, it was originally a campaign to censure the president and move on, instead of impeaching him.  And so that‘s where it started. 

(CROSSTALK)

MATTHEWS:  OK, so it had a partisan tang to it? 

PARISER:  Moving on passed the partisan politics and towards getting real stuff done.

MATTHEWS:  OK, OK, I see.  Well, let me ask you this about the fight and the deal that was struck over the last several hours, the deal that has seven Democrats, seven Republicans agreeing not to use the filibuster except in extraordinary cases regarding court appointments, and also moving on in accepting some of these nominees. 

Do you think that this is going to have an influence on how we select chief justices and associate justices of the Supreme Court? 

PARISER:  Yes, absolutely it will.  And you know, you‘ll notice that part of this deal was a rebuke to President Bush for the way that he was choosing these judges without consulting the Senate.  All 14 of these senators joined in rebuking the president. 

And what it means is that now he‘s going to have to consult with these folks and with the Senate as a whole before he nominates judges, especially those who might be considered out of mainstream or, you know, extraordinary circumstances. 

MATTHEWS:  What does “out of the mainstream” mean? 

PARISER:  Well, if you ask me, out of the mainstream means thinking that the minimum wage is unconstitutional, thinking Social Security is unconstitutional.  It means ruling...

(CROSSTALK)

MATTHEWS:  How about if you believe that abortion is morally wrong? 

Does that put you outside the mainstream? 

PARISER:  You know, I don‘t think that any one thing...

MATTHEWS:  No, I want to ask you about that one issue. 

PARISER:  I don‘t think any one thing puts you out of the mainstream. 

I think you‘re entire track...

(CROSSTALK)

MATTHEWS:  OK, so you could be in the mainstream and believe that abortion is morally wrong?  I just want to get your view on it. 

PARISER:  Well, you know, look, this is a member-driven organization. 

I think that, you know that...

MATTHEWS:  No, I‘m asking you a simple conceptual question.  Do you believe that a person—well, you bump into people all the time.  Do you believe a person could be in the American mainstream and believe that abortion is wrong? 

PARISER:  I think it‘s a conversation that we can have in the country.  I don‘t think that it‘s out of the mainstream on that one point.  But I think the point is, you know, that these judges who have been nominated haven‘t just been wrong on one issue, they‘ve been wrong on a whole slew of issues.  And that‘s why the Democrats had blocked them.

(CROSSTALK)

MATTHEWS:  Let me go to Reverend Mahoney.  Maybe I have a different view than you do... 

(CROSSTALK)

MATTHEWS:  Let me ask you, Reverend Mahoney, about the real fight here.  It‘s the Supreme Court.  It‘s not over who‘s the appellate court somewhere. 

REVEREND PATRICK MAHONEY, CHRISTIAN DEFENSE COALITION:  Oh, absolutely.

MATTHEWS:  The Supreme Court is about to open up a vacancy, it looks like, because, sad to say, Judge Rehnquist is in bad shape.  And people believe that sometime in the next year or so he‘s going to retire.  That‘s going to open up the chief justiceship of the United States, and of course, if you name Scalia to that post, another associate justiceship.  So we might have two openings right away.  Is that what this fight‘s about? 

MAHONEY:  There‘s no doubt about this.  This was all about the composition of the Supreme Court.  Just quickly, when you ask Eli what‘s out of the mainstream?  Social Security, minimum wage.  When you hit abortion, uh, I don‘t know. 

Eli, just say what it is.  It is about abortion. 

Chris, I appreciate your honesty.  That‘s what this fight is about.  Who sits on the Supreme Court?  And I want to say this.  If we thought there was intensity and passion over the filibuster, this is like a stroll in the park compared to what will happen. 

Thank God America is embracing the culture of life.  The latest Gallup poll, 72 percent of Americans between 13 and 17 believe abortion is immoral.  So we believe we‘re on the right side of history, and this will be about abortion.  Make no mistake about it. 

Pryor, Owen, Brown, whenever they raise objections about them being extreme, it always seemed to center on their views about abortion. 

MATTHEWS:  Let me ask—let‘s give Eli a chance to speak for himself. 

Your response, sir. 

PARISER:  Well, it‘s not true.  Look, the problem with Myers is that he was never a judge.  And you know, he was a lobbyist.  The problem with Pryor was that he was—he turned down billions of dollars in a tobacco settlement because he was in bed with big tobacco. 

The problem with Owen was that, when she was running for the Supreme Court in Texas, she took money from Enron and then turned around and gave Enron a sweetheart deal in a case.  These are about judges who rule on behalf of big business instead of the American people. 

And this whole abortion thing, as far as I‘m concerned, is something of a smoke screen that distracts from their records.

MATTHEWS:  Who was the last pro-life Democratic candidate for president?  You say it‘s a smoke screen. 

(CROSSTALK)

MATTHEWS:  When was the last Democratic candidate for president who was pro-life? 

PARISER:  Couldn‘t answer you.

MAHONEY:  Eli, and...

MATTHEWS:  It‘s so long ago, but you say it‘s a smoke screen.  It is the dividing line between the parties because the Republican Party has a pro-life plank in its platform.  The Democrats have a pro-choice plank.  They are clearly divided on this issue.  And depending on who pick for president tells you a good deal about who they‘re going to pick for a Supreme Court, right? 

PARISER:  But that‘s not the standard—that‘s not the standard that Democrats use, because of the hundreds of judges who are appointed, many of them are concerned about—you know, many of them are conservative...

(CROSSTALK)

MATTHEWS:  OK.  Who was the last pro-life judge put on the Supreme Court by a Democratic president? 

PARISER:  Well, that‘s not the question though.  I mean, we‘re looking at the pattern and practice...

(CROSSTALK)

MAHONEY:  Eli, that is the question.  And just quickly, is...

MATTHEWS:  I don‘t want to agree with you too much, Pat.  I want to stay even.  But I do think it‘s the issue.

When we come back, and ask the people out there watching about it.  Isn‘t it the fundamental passionate issue of our time, abortion rights?  Is this fight over judges really boil down to that one thing, abortion?  That‘s what we‘re fighting about right now. 

This is a special edition of HARDBALL only on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  I‘m back with Reverend Pat Mahoney of the Christian Defense Coalition and Eli Pariser of MoveOn.org. 

I want to give you a chance here, Eli.  What is your view of those seven Democrats who agreed to let these three pro-life judges be confirmed? 

PARISER:  Well, I think they did the right thing.  They preserved the system of checks and balances.  And at the end of the day, I think that‘s what this was about.  This was a power-grab by Republicans to get complete control to appoint they wanted to the Supreme Court or the appellate courts.  And at the end of the day, democracy won out over the desires of the hard right.

MATTHEWS:  Yes.  You know, you really talk like a fund-raising letter. 

You must be good at writing them. 

Let me ask you this.  Are you guys mad at McCain for cutting this deal, because he took the stuff right out from under Frist? 

MAHONEY:  Yes...

MATTHEWS:  Yes or no? 

MAHONEY:  Yes.  And I think in the...

MATTHEWS:  I liked yeses.

MAHONEY:  Yes.  And I think, in the long-term, McCain has really hurt himself, short-term winner, long-term loser.  When it comes to primary season...

MATTHEWS:  He gets in the South Carolina primary...

(CROSSTALK)

MAHONEY:  Forget about it.  I mean, it‘s over, because judicial activism—he has failed to realize that, among faith and value Evangelical voters, this is the emerging issue, because everything hinges around it.  And if he expects people to man phone banks—we were just talking a little on the break—they‘re not going to be there. 

So he may gain some temporary points.  But I think long-term, for the primary season, he‘s hurt himself. 

MATTHEWS:  So there‘s a hard price for these hosannas from the press? 

MAHONEY:  I think so. 

MATTHEWS:  OK.  Thank you, Reverend Patrick Mahoney.  Kind of a odd name for a Protestant.  But anyway, thank you.

Eli Pariser, thank you for joining us. 

Next, does the fight over judges really boil down to the fight over abortion?  This is special edition of HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

*

(NEWS BREAK)

MATTHEWS:  Welcome back to a special edition of HARDBALL.

The big Senate deal on judicial nominees gave the right wing and left wing something to agree on.  They‘re both mad.

C. Boyden Gray has been advising Senate Majority Leader Bill Frist on the judicial nominee battle.  He was also, of course, counsel to former President Bush.  Nan Aron is president of the Alliance For Justice, a liberal group less than thrilled with the compromise.

Let me go you, Boyd.  Thank you for coming on again tonight. 

It seems to me that John McCain has staked out again a John McCain position.  Is he going to have to pay for being such a maverick with the cultural right? 

C. BOYDEN GRAY, FORMER WHITE HOUSE COUNSEL:  He could.  If there‘s a problem with a Supreme Court nominee, he‘ll have a real problem with the cultural right. 

But, at this point, I‘m not sure this is true, because this deal isn‘t really a bad one for the president. 

MATTHEWS:  Do you believe that the Democrats will hold to their promise to only—to only filibuster a Supreme Court nominee who is extraordinarily bad for the job? 

GRAY:  I believe they will hold to that.  I do, indeed.  And, if they don‘t, I think Lindsey Graham and Senator DeWine made very, very clear they‘ll come right back in and use the constitutional option. 

MATTHEWS:  So, if the president of the United States does something that would be, to me, logical, promote Justice Scalia to chief justice, bring in someone like Alberto Gonzales to be associate justice, they‘re conservative men, but they‘re not right wing by any definition, they would get through this door that the Democrat moderates have opened, which is, if you‘re not extraordinarily bad, you‘re going to get a vote. 

GRAY:  That‘s exactly correct. 

MATTHEWS:  And that‘s the way the president sees it? 

GRAY:  I think—I don‘t—I can‘t speak for him.  I‘ve talked to him.  But I‘ve talked to enough to the staff to understand there should be no constraints on his ability...

(CROSSTALK)

MATTHEWS:  So, as a person who has advised Bill Frist, you‘re pretty copacetic and pretty mellow about this deal that was struck overnight? 

GRAY:  I would have loved finality, but I will take what we have. 

MATTHEWS:  OK.

Let me ask you, Nan—thank you for coming on for the first time.

Do you have confidence that you‘ll be able on your side of the fence to defend your views under this new disposition, where we have seven Democrats and seven Republicans cutting a deal down the middle? 

NAN ARON, ALLIANCE FOR JUSTICE:  Absolutely. 

I think if the president sends up any nominee to the Supreme Court that resembles any of his worst court of appeals nominees, then I think we‘ve got grounds for a filibuster.  I think, last night, with this deal, Senator Frist was the big loser.  He did not get his prescription filled. 

MATTHEWS:  Let me ask you about—do you believe—let me just go to what I think might be just sort of a paradigm here.  If the president were so nominate Associate Justice Antonin Scalia for chief justice, then bring in his attorney general in, who has already passed the Senate muster, for associate justice, would that be an extraordinary nomination? 

ARON:  Based what we‘ve read of his record or Alberto Gonzales‘ record, I think that there would be extraordinary circumstances.  And I certainly think the Senate would filibuster.

(CROSSTALK)

MATTHEWS:  So, you would ask for a veto?  You would ask for a filibuster against that? 

ARON:  We certainly would. 

MATTHEWS:  Against Scalia? 

ARON:  We certainly would.  Absolutely. 

MATTHEWS:  Scalia was approved by 98-0 to be put on the court.  And he served all these years.  Why would all of sudden become an extraordinarily bad proposal? 

ARON:  He has a record on the Supreme Court of extremist, of holding -

·         upholding laws that hurt people, of denying ordinary Americans their rights and protections.  I think, if he‘s elevated to chief, I think that there would be an outcry, an outcry. 

MATTHEWS:  OK.  He‘s extraordinary? 

ARON:  Absolutely. 

MATTHEWS:  How about Clarence Thomas?  Is he extraordinary? 

ARON:  Oh, absolutely.  Absolutely.  I mean, I think he‘s someone on the Supreme Court that doesn‘t even believe in... 

(CROSSTALK)

MATTHEWS:  So you would filibuster—is there anyone you can think of who might be picked by the president for the Supreme Court if there‘s an opening this summer who doesn‘t fit your definition of extraordinarily bad and therefore requiring...

ARON:  Sure.  I think if—if—if President Bush were to elevate Sandra Day O‘Connor, that that nomination wouldn‘t constitute extraordinary circumstances.  And I think she would probably be confirmed.

MATTHEWS:  Or Kennedy?  Or Anthony Kennedy?

ARON:  I don‘t think Kennedy is even is within the running. 

MATTHEWS:  Why not? 

ARON:  But I think if—in fact, if he were selected, that he, too, just like Sandra Day O‘Connor, might be confirmed. 

MATTHEWS:  And, if it‘s Souter, you would put bells on your feet, right? 

(LAUGHTER)

ARON:  Well, yes. 

MATTHEWS:  I don‘t think that‘s likely.

ARON:  But I don‘t think it‘ll happen. 

MATTHEWS:  So, in other words, you—I‘m trying to define what this means. 

Well, let me ask you this.  You‘ve got seven Democrats there who all come from pretty moderate states.  I noticed.  I was going down the list of Ben Nelson, Nebraska, hardly a left-wing hangout.  You‘ve got Lieberman from Connecticut, which could be somewhat liberal on this issue of abortion rights.  You have got Pryor from Arkansas, Byrd from West Virginia.  You‘ve got Landrieu from Louisiana.  You‘ve got Salazar from Colorado, Inouye from Hawaii. 

Hawaii and Connecticut are the only really liberal states represented by these deal-makers.  Does that concern you, that the Democrats have found a way to avoid dealing with the abortion rights people, have people deal who don‘t represent the liberal states? 

ARON:  No, because I think a nominee will be examined based on his or her entire record.  And I think, at the end of the day, if that record is one of extremism, if this candidate...

MATTHEWS:  On abortion

ARON:  ... is against individuals rights...

MATTHEWS:  What—what—what—how do you define extremism? 

ARON:  Well, if there‘s a nominee who is tapped for the seat who opposed to Roe vs. Wade, that would constitute...

MATTHEWS:  That‘s an extremist? 

ARON:  Absolutely. 

MATTHEWS:  But a person who is for Roe v. Wade is not an extremist? 

ARON:  No, because Roe vs. Wade is great, a landmark precedent, just like Brown vs. Board of Education. 

MATTHEWS:  But there are three members of the Supreme Court right now who would vote against Roe v. Wade if it was an open question?  Are they extremists? 

ARON:  On that issue, they certainly are.  But abortion isn‘t...

MATTHEWS:  Scalia, Thomas and Rehnquist are extremists? 

ARON:  Absolutely.  Absolutely.  And if Thomas or Scalia were to be elevated to the chief justice position, we at the Alliance For Justice and other organizations around the country...

(CROSSTALK)

MATTHEWS:  Let me get some legal history here.  Roe v. Wade came in, in ‘73, right? 

GRAY:  That‘s correct. 

MATTHEWS:  So, we didn‘t have it before then.

GRAY:  Right. 

MATTHEWS:  So, everybody who was on the Supreme Court before ‘73 was an extremist, by this definition, because they weren‘t Roe v. Wade?  They didn‘t believe a woman had an inherent right to an abortion.

GRAY:  That‘s correct. 

MATTHEWS:  You say that‘s true? 

(CROSSTALK)

ARON:  No. 

(CROSSTALK)

MATTHEWS:  Well, what do you mean by extremist?

ARON:  You‘ve got a completely different court today than you did in 1973. 

MATTHEWS:  No, I‘m asking a question.  You‘re saying that, until 1973, the United States Supreme Court was inhabited by extremists, because they didn‘t support the woman‘s right to choice.  They didn‘t find in the Constitution this inherent right to privacy, this penumbra of privacy which allows for a woman to make that choice. 

ARON:  We are looking...

MATTHEWS:  They were extremists, therefore? 

ARON:  We‘re looking for individuals who are respectful of people‘s individual rights and liberties.

MATTHEWS:  ... respectful.  I‘m asking about constitutional questions here.

(CROSSTALK)

ARON:  Including those rights is the right to privacy and the right to choose.  Anyone who is opposed to a right to choose would...

MATTHEWS:  Choose what? 

ARON:  To choose to have an abortion, reproductive freedoms and health...

MATTHEWS:  Why do you keep using these phrases like reproductive freedom and health and choice?  Why don‘t you just say abortion rights? 

ARON:  You can say abortion rights, however you want to say it. 

MATTHEWS:  I think it‘s a good word.

Does the president want to pick somebody who believes in abortion rights for the Supreme Court?  I don‘t know.    

GRAY:  I don‘t know.  And I don‘t think that is going to be the determining factor in who he picks.

MATTHEWS:  You mean he might pick an abortion rights person?

GRAY:  Well, he might pick someone who agrees, who thinks Roe is settled law, but personally is opposed.  I can think of some sitting judges that have that view. 

(CROSSTALK)

ARON:  It‘s very...

(CROSSTALK)

MATTHEWS:  Do you know any judges like that? 

ARON:  Well, you know, it‘s very interesting, because this administration says it doesn‘t have a litmus test for its judicial nominees.

And yet not one of President Bush‘s court of appeals judges has a record of support for the right to choose, not one.  The fear is that this administration, not just on abortion, but on a wide range issues, will pick someone...

(CROSSTALK)

MATTHEWS:  You know what concerns me?  A lot of the—just as a

nonlawyer—the declaration by some of the pro-choice groups that you

don‘t want anybody on the court who has a moral problem with abortion, when

in fact a lot of people have a problem with abortion.  They think it‘s at

least a serious moral decision that shouldn‘t be taken lightly, like

getting a tooth removed, who also recognize that, in a society like ours,

that freedoms are essential and that the state has limited powers in a free

·         in a limited—in a system of limiting government, and can separate the two. 

They can say, this is the kind of thing I really think is morally questionable, at least, but I recognize the right of people to make decisions.  Your crowd, a lot of the pro-choice people, don‘t accept that division.  They‘re going after Pryor.  Why are you going after Pryor because of his philosophical statements? 

(CROSSTALK)

ARON:  All right.  Listen, this is not just about abortion. 

MATTHEWS:  Now, wait.  Why do you go after people because of philosophical statements?  That‘s what I don‘t get. 

(CROSSTALK)

ARON:  Because Pryor said as his hearing—and I was there—asked a question by Chuck Schumer, if—would you overturn Roe vs. Wade?  Point blank asked that question.  And his answer was, yes, I will. 

But it‘s important to note, it‘s not—we‘re not just talking about abortion.  We‘re talking about environmental protections, worker protections. 

(CROSSTALK)

MATTHEWS:  I know what drives people.  And all those other issues are fine, but the abortion issue is what is driving this fight. 

ARON:  Not necessarily.

MATTHEWS:  That‘s why it‘s on the front pages. 

ARON:  Not necessarily. 

MATTHEWS:  Do you agree with that?

GRAY:  I don‘t agree it‘s the only issue, no.  I think that...

MATTHEWS:  But isn‘t the driving political issue for women in the Democratic Party—I‘ll tell you, it‘s the issue that fills the headquarters when you go into a Democratic headquarters.  Try to find a pro-life woman in the Democratic headquarters.  It‘s why Gephardt switched.  It‘s why so many politicians switch to pro-choice, because they‘re informed by their consultants, no one will be working in your campaign if you stay pro-life.  It‘s a political issue of the Democratic Party. 

(CROSSTALK)

GRAY:  It‘s a real litmus test.

(CROSSTALK)

MATTHEWS:  And why do you think they have a platform every year that says, we‘re pro-choice?  Why does your party say, we‘re pro-life?  You say it doesn‘t matter.  But both parties nail down a position right at their conventions.  And people fight for that party platform, don‘t they? 

GRAY:  They do.  Sure they do. 

ARON:  But look at the organizations were part—that were part of this fight to save the filibuster, environmental groups.

MATTHEWS:  I know.

ARON:  Unions, the leadership conference.

MATTHEWS:  It‘s been cover.  The issue is abortion. 

Anyway, thank you, Boyden Gray.  Thank you, Nan Aron. 

In a moment, is President Bush ready for his first presidential veto over stem cell research?  That‘s next.

And don‘t forget, sign up for HARDBALL‘s daily e-mail briefing.  Just log on to our Web site, HARDBALL.MSNBC.com.

(COMMERCIAL BREAK)

MATTHEWS:  The religious right says Senator John McCain has some explaining to do for working out a compromise with Democrats.  But are the moderates taking over? 

When HARDBALL comes back.

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to this special edition of HARDBALL. 

Defying a veto threat from President Bush himself, the House passed a bill today to loosen the current ban on using federal money to conduct new embryonic stem cell research.  While the vote total was 238-194, it was short of the 290 veto-proof majority. 

(BEGIN VIDEO CLIP)

REP. TOM DELAY (R-TX), MAJORITY LEADER:  We were all at one time embryos ourselves.  And so was Abraham.  So was Muhammad.  So was Jesus of Nazareth and Shakespeare and Beethoven and Lincoln. 

REP. DIANA DEGETTE (D), COLORADO:  We‘re on the verge of breakthroughs that will cure diseases that will affect tens of millions of Americans.  Yet, some want to turn away from this potential, to refuse to even acknowledge its existence, simply because they do not understand the complexity of this issue. 

(END VIDEO CLIP)

MATTHEWS:  Norah O‘Donnell is chief Washington correspondent for MSNBC.  Mike Allen is a congressional reporter for “The Washington Post.”  And Steve McMahon is a Democratic political consultant. 

I want to start with Norah O‘Donnell, our chief correspondent at

MSNBC. 

Norah, this puts the president in a unique position.  If he vetoes this bill, as he has promised to do that, then he alone will be standing out there and saying, take me on.  I‘m the one that said we‘re not going to have federal funding of this embryonic stem cell research. 

NORAH O‘DONNELL, NBC CORRESPONDENT:  And, also, it‘ll be the president‘s first veto.  He‘s never issued any other veto before.  So, that would be significant as well. 

But what was fascinating about watching the House debate today is, it essentially was an insurgency of moderate Republicans who bucked party leadership in order to get this bill passed.  In fact, 50 Republicans voted against the party leadership in order to move this bill forward.  It is also expected to be passed in the Senate and then sent to the president.  And the president said today he‘s going to veto it. 

We heard from both houses today.  They don‘t yet have enough votes to override a veto. 

MATTHEWS:  I want to talk to Mike Allen about the consequences. 

And, God, you could take either side of this issue.  But people who have problems like Alzheimer‘s in their family, who have Parkinson‘s, do, I guess, in this case, believe the end justifies the means.  If you have these fertilized eggs, human eggs, available in these fertility clinics, because people, when they try to have babies and have difficulty having a baby, they fertilize a number of eggs as part of the procedure. 

MIKE ALLEN, “THE WASHINGTON POST”:  Freeze some of them.

MATTHEWS:  So they‘re sitting there to be destroyed at some point or I guess put out for adoption at some point in some minority of cases.  And people say, well, they‘re going to die some way.  They might as well be useful to mankind.  That‘s the argument, right? 

ALLEN:  Right.  The argument is, this is another way at looking at life. 

And what you heard—Norah pointed out 50 Republicans.  Amazingly, seven of the 21 committee chairs, a third of the committee chairs, voted for it as well.  And because it‘s personal.  It‘s a little like the Schiavo case.  Everybody has an experience with this.  And during the debate, you heard the members coming out and talking about their older brother with Parkinson‘s, their nephew who had Alzheimer‘s. 

MATTHEWS:  Steve, you‘re the political expert here.  And I don‘t want to ask you to be a Democrat, but to try to explain this.  A lot of people think—I do, too—that one of the reasons people are anti-abortion is because they think it‘s part of sexual irresponsibility, people having kids, having sex, having babies without thinking about it, and just solving their problem with abortion.  So, it has to do that sort of cultural piece. 

This question, it doesn‘t really have to do anything with sex. 

(CROSSTALK)

MATTHEWS:  This has to do with life, yes, but not sex.  And, therefore, it does seem to have a different division of who is for it or against it.

STEVE MCMAHON, DEMOCRATIC STRATEGIST:  Right.  It absolutely has a different division. 

I mean, you have got people like Joe Barton, who has been consistently pro-life right down the line, who voted with the Democrats on this one against the White House.  You have got people like Newt Gingrich, who is a strong supporter of stem cell research.  Nancy Reagan.  Anybody who watched what President Reagan went through in the final years of his life would—would have to have their heart go out to a family like that and would, I would think, want to do everything possible to mitigate that for any other family. 

(CROSSTALK)

MCMAHON:  So, you know, this is a really, really tough issue. 

Mike mentioned the Schiavo case.  And I think the Schiavo case actually applies here, because you got a group of moderate Republicans who are looking at a 33 percent approval rating for Congress and who are looking at...

ALLEN:  And 70 percent for stem cell research.

MCMAHON:  And 70 percent for stem cell research.

And they‘re looking at a House leadership that looks like it‘s going over the edge again.  And they don‘t want to go there with it. 

MATTHEWS:  Norah, let me strain one thing out.  The president said he did not believe we should create life in order to—or destroy it.

But isn‘t this a case of using stem cells that have been created—rather, using embryos that have been created already? 

O‘DONNELL:  Well, that‘s the issue here, of course.  And there are an estimated 400,000 frozen embryos that are going to be discarded or thrown away or not used.  And that‘s why many of these conservative and moderate Republicans said that we should use them for science. 

But it‘s also very important to remember.  And I think people on—on

·         that are behind this and watching this debate very closely, what the House passed today would essentially overturn what the president did in 2001.  In 2001, the president limited federal funding on embryonic stem cell research.  The House wants to use taxpayer dollars and other congressmen want to use taxpayer dollars to fund research on these embryos. 

And that‘s why this is a very controversial issue, although the American people overwhelmingly think we should do more in terms stem cell research. 

MATTHEWS:  Mike, last thought? 

ALLEN:  Just to acknowledge the other side of this here, you know, what Bush is saying is, life isn‘t negotiable.  You talk about the discards. 

Today, in the East Room, he surround himself with kids who‘d been flown around in a—from around the country who were the products of these embryos that were later adopted earlier today there on Capitol Hill.

MATTHEWS:  So, he would like to see those discarded embryos, fertilized eggs, used to create people? 

ALLEN:  Right.  And earlier today, those kids were on Capitol Hill with stickers that said “Former embryo.”

(CROSSTALK)

MCMAHON:  But that‘s not really—that‘s not really his choice. 

These are embryos that are being discarded right now. 

MATTHEWS:  By people who don‘t want to put them up for adoption. 

MCMAHON:  Yes.  And it wasn‘t like A, B or C.  We can have the president‘s choice and we can all make children out of these.  These are being discarded.  Are the question is, are going to you cure Alzheimer‘s and Parkinson‘s and diseases like that or are you going to let these be discarded?  That‘s...

ALLEN:  And one other point that the opponents make is, they say that the claims for that are vastly overstated.  Doctors tell us, yes, it will take some time. 

MATTHEWS:  This is an argument.  That‘s what I would call it.  I‘m not sure it‘s a value.  This is a damn serious argument.

Coming up, more with Steve McMahon, Norah O‘Donnell and Mike Allen of “The Washington Post.”  You‘re watching a special edition HARDBALL on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  We are back with Steve McMahon, Norah O‘Donnell and Mike Allen. 

Let‘s go to Norah O‘Donnell, MSNBC‘s chief Washington correspondent.

Norah, who is more ticked off about this deal, the right or the left? 

O‘DONNELL:  On judges? 

MATTHEWS:  Yes, the whole gang-of-14 deal we have been talking about overnight, yes. 

O‘DONNELL:  Well, the two pressure groups, as you call them, talking about them, they can‘t agree on who won or who lost.  They are both angry about the deal. 

And the Republicans and the Democrats also can‘t agree on what it all means.  Reid says he thinks it means that there won‘t be any more nuclear option.  And Frist says today, all options are on the table.  So, I think this all means we will still have to wait to see to a Supreme Court vacancy to how it all plays out. 

MATTHEWS:  I think you may be right for the final—the final test will be, will the Democrats scream, extraordinary case, extraordinary case, as soon as they put up Scalia? 

What do you think Mike?

ALLEN:  Yes.  Senator Frist smartly came out today and said that he was not a party to the deal.  He said it last night.  He repeated it again today.  So, you saw these comments from the conservatives.  He didn‘t get blamed for it. 

(CROSSTALK)

MATTHEWS:  He didn‘t?

ALLEN:  He...

(CROSSTALK)

MATTHEWS:  Who do we blame, if you don‘t blame the leader for losing his troops? 

ALLEN:  The McCain people will say, now he looks like a lame-duck leader.  He was on this...

(CROSSTALK)

MCMAHON:  Now he looks like a presidential candidate, is what he looks like.

(CROSSTALK)

MATTHEWS:  Can we agree there‘s a competition here between John McCain and Bill Frist for the nomination already? 

MCMAHON:  Absolutely.

MATTHEWS:  This is the first primary? 

MCMAHON:  Absolutely.

ALLEN:  Of course. 

(CROSSTALK)

MATTHEWS:  ... nuclear primary. 

ALLEN:  McCain looked like the adult in the cafeteria.  He played...

(CROSSTALK)

MATTHEWS:  He looked effective.

ALLEN:  And you saw—had Senator Warner yesterday on camera talking about the leadership of John McCain.  That‘s not what you want to hear if you‘re Senator Frist.

MATTHEWS:  First time I have heard the phrase leadership of John McCain.  He is known as—Norah, get in here.  He‘s known as a great gadfly, a great maverick, a great troublemaker.  But here he is leading troops. 

O‘DONNELL:  Yes, and leading centrists in—or a whole group of people in the Senate and clearly delivering a blow to Frist.

But the other part of this, though, is that many conservatives I talked to today who are aligned, whether it‘s James Dobson, Perkins from the Family Research Council, which together are part of a group called the Arlington Group, which claim to represent some 60 million conservatives, say that they are angry and that there will be payback for the Democrats and Republicans.  

MATTHEWS:  OK. 

Steve, who would the Democrats rather face, Bill Frist next time around or John McCain in the general? 

MCMAHON:  Bill Frist. 

MATTHEWS:  Because? 

MCMAHON:  Because, you know, he is more of a partisan ideologue and he does things like this.  And John McCain, for all of his unpredictability is kind of—and his irascibility, he is kind of attractive to independents and to swing voters. 

MATTHEWS:  Would you vote for him? 

MCMAHON:  I would always vote for the Democrat, but I could vote for someone like John McCain. 

MATTHEWS:  Him against Hillary, you going for Hillary or him? 

(LAUGHTER)

(CROSSTALK)

MCMAHON:  It‘s Hillary.  Come on. 

MATTHEWS:  Steve McMahon, thank you very much.

Norah O‘Donnell, it‘s great having you on tonight.

Mike Allen from “The Washington Post.”

Join us again tomorrow night at 7:00 Eastern for more HARDBALL.  Actor/activist Tim Robbins—what a great actor—argue with him, but what a great actor—he‘s coming on tomorrow night.

And be sure to tune into “IMUS IN THE MORNING” tomorrow morning.  I‘ll be on at 7:29 Eastern, not that that matters.

Right now, it‘s time for “SCARBOROUGH COUNTRY” with Joe.

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

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