updated 7/6/2005 11:39:35 AM ET 2005-07-06T15:39:35

Guest: Stuart Taylor, Viveca Novak, George Allen, Laurence Tribe, Robert Bennett, Alan Simpson

CHRIS MATTHEWS, HOST:  Justice Sandra Day O'Connor retires from the United States Supreme Court, creating a Grand Canyon vacancy dead center in the country's cultural divide. 

Let's play HARDBALL. 

Good evening.  I'm Chris Matthews. 

The White House says President Bush will not name Justice Sandra Day O'Connor's successor until he returns from Europe on July 8.  But the president says he will make the pick in a timely manner, so that this huge vacancy can be filled when the court gets back to work in October. 

And what a job it will be replacing this historic justice, who has been the decisive vote in so many 5-4 Supreme Court decisions, on affirmative action, the public display of the Ten Commandment, and perhaps, most dramatically, the Supreme Court decision in the presidential election of 2000. 

O'Connor was the first woman ever to serve on the Supreme Court.  Her departure now could tilt the balance rightward on practically every major social and judicial issue of our time.  Tonight, we'll hear from right and left on this dramatic moment and this historic opening. 

We begin with NBC's chief justice correspondent, Pete Williams, who is at the Supreme Court. 

Pete, what a night and what a surprise.  Why did she retire? 

PETE WILLIAMS, NBC JUSTICE CORRESPONDENT:  Well, we know that the court says that, at 75 years of age, she wanted to spend more time with her husband. 

That was the end of the official statement, Chris.  We have known for we've months that her husband John, who was a tax lawyer whom she met in law school—they've been married since—for over 50 years, that he's been struggling with Alzheimer's disease.  And, as her friends tell it, it was—it was a decision she had to make almost between the court and her personal life, an agonizing decision for her.  And now she has made it. 

MATTHEWS:  You know, it's wonderful to see those two out together, that wonderful couple, John O'Connor and Sandra Day O'Connor.  And even though he is in those early stages of Alzheimer's, she has made a real effort, it seems to me, to care for him.  So, you can see it in public. 

WILLIAMS:  Absolutely.  And he sometimes comes here, often comes here to the Supreme Court, watches her in the courtroom, along with the rest of us.  He is completely devoted to her.  And it is mutual, as you say. 

MATTHEWS:  Let me ask you about the factors in her replacement.  Do you believe that it will be someone not from the far right, because she comes from the center? 

WILLIAMS:  I don't know that that is necessarily the test for the White House.  They're going to try to put on whoever they want. 

You know, it seems to me the equities here are, before she retired, there was clearly no question that there was nothing wrong with her health.  Now, you could say she stepped down for health reasons, the health of her husband, not hers. 

But setting this aside, there was no reason to think she was about to leave.  And the White House may have thought, if there's only going to be one vacancy, of the chief justice, then perhaps it is time to nominate Alberto Gonzales.  They may set that behind.  If they now think they're going to have two chances, perhaps Gonzales would be the next one up. 

But in—in—only in that sense do I see this as changing the White House calculation.  Now, the Senate may have something entirely different in mind. 

MATTHEWS:  Let me ask you two factors that are pretty obvious.  They do seem to want someone young, someone in their late 40s or early 50s, someone like Gonzales.  And do they want somebody that the president knows personally, so that he's checked them out and he doesn't risk having a David Souter, who turns out to be far different than his father, who picked him, thought he would be? 

WILLIAMS:  I think those are two separate issues.  Does it have to be someone the president knows personally?  Not necessarily.  But it has to be somebody he is comfortable with.  Mr. Gonzales would certainly be that.

Will it be someone checked out, so that there are no more—quote—

“no more David Souters?  Absolutely.  And you can be certain that that's the big question the White House counsel's office has looked at.  And any of these people on the potential list, Michael Luttig, J. Harvie Wilkinson, John Roberts, many of these folks would clearly pass that test. 

MATTHEWS:  Thank you, Pete.

WILLIAMS:  You bet.

MATTHEWS:  Thank you very much for this, Pete Williams at the Supreme Court.

Longtime Washington attorney Bob Bennett represented President Clinton in the Paula Jones case and has also appeared before the Supreme Court.  And former Senator Alan Simpson of Wyoming is a friend of Justice O'Connor. 

Senator Simpson, tell me about the importance of Justice O'Connor in history now, because her life now belongs to history. 

ALAN SIMPSON, FORMER U.S. SENATOR:  Well, she comes first in the category, Chris, of what you just said to me, as friend, because her son Brian and our son Colin were classmates together at the Colorado college. 

So, when she hove into view, she said, here I am, I'm a nominee for the court, I said, you're Brian's mother?  And from then on, it was a great friendship.  She and John, we love to dance and boogie around, lively, wonderful people, brilliant.  And she is irreplaceable.  And—and I think it is a great surprise that she is the one to resign or to retire.  And I think that the administration was probably not ready, but I think they're going to have to think clearly about a woman to replace her. 

That would be the logic.  But she leaves a—she leaves a vital legacy of moderate thinking, but thoughtful thinking.  I mean, you can try to nail her from the right and the left.  But when you read her decisions or hear her speak or visit with her or know her, you're talking with a marvelously bright woman with a lot of common sense and grounded in the earth. 

MATTHEWS:  Bob Bennett, her importance in the justice system of this country, the big decisions?

ROBERT BENNETT, ATTORNEY:  Oh, I think she played a very significant role.  And I totally agree with the senator.  I've had the pleasure of knowing her, not as well as the senator, perhaps, but I've known her well. 

Just to give you an example, Chris, since 1995, the Supreme Court decided 193 cases by a 5-4 majority.  And she was in the majority on 148 of them. 

MATTHEWS:  Three-quarters. 

BENNETT:  Yes.  And since '96, she authored 25 of those 5-4 decisions. 

So, her contribution has been most significant. 

MATTHEWS:  Senator, if you look at these decisions—I looked at them today and I've looked at them before—the Michigan case, where she stood for at least the principle of affirmative action, if it is done right, in the Michigan law case.  In the Kentucky case, she came out against the display of the Ten Commandments there. 

In the presidential recount, which was one of the most trickiest of all court decisions, she was with a 5-4 decision, all those 5-4 cases.  And then you throw in the 6-3 cases, like abortion rights and the Lawrence case on gay rights, she's pretty important. 

SIMPSON:  Oh, yes, vital. 

And the sad thing is that those aren't the—the latter two aren't the two that will be remembered forever.  But the new nominee is going to go through the fires on those two issues, abortion and gay rights.  And that's going to be just absolute turmoil.  She left her mark as someone who understood the minority position, not because of academic rationale, but because of her feelings, the person, the persona of who she was and is. 

And it's going to be—it's going to be the worst—it will make—it will make Bork and Thomas look like a cupcake drill.

(CROSSTALK)

BENNETT:  I think the senator—the senator is right.  It is worth remembering that she was approved 99-0. 

MATTHEWS:  Those were the old days. 

(LAUGHTER)

BENNETT:  I have no idea who the president is going to pick.  But I can promise you, it isn't going to be 99-0. 

MATTHEWS:  You know, Senator...

SIMPSON:  Bob, you remember...

MATTHEWS:  Go ahead.  Go ahead, Senator.

SIMPSON:  She was asked—she was asked the question, how do you feel on abortion?  She said, oh, don't be silly.  I can't respond to that.  It may come up during my term.  And everybody just sat back. 

And then Scalia, the same thing.  They asked him.  He said, oh, that may come up.  And then the only thing they asked Scalia was whether he did like to play the piano and did he sing when he did it.  I mean, those two went just like that through the nomination process. 

BENNETT:  Right.  Well, I'm sure...

MATTHEWS:  Bob, I have to ask you, did she enjoy her position as the cutting-edge, 5-4 Supreme Court justice, being always there at the middle? 

BENNETT:  You know, I don't know, Chris. 

I think maybe the senator would know that better than I.  I don't think she thought that way. 

(CROSSTALK)

BENNETT:  I don't think she thought that way. 

(CROSSTALK)

MATTHEWS:  Well, did it bother her to be always so critical to every decision, Senator?

SIMPSON:  Well, I don't—I agree with Bob. 

I don't think she ever did anything to attract attention to her position as a 5-4 associate justice.  She just spoke.  And her last dissent was a powerful piece of goods.  I mean, she just spoke from her heart and her gut.  And she was raised that way.  She was raised on a ranch.  She was raised in the West, and a no-nonsense, beautiful, thoughtful woman. 

BENNETT:  Chris, let me tell you why I don't think it would have bothered her at all. 

My sense of Justice O'Connor, that she never had a view that she wanted to take the court to a certain place, but, rather, she wanted to focus more on the individual case and make individualized judgments on those cases.  So, I don't think it bothered her at all. 

MATTHEWS:  Robert Bork, who was defeated for confirmation, as you know Senator, for the Supreme Court, he knocked her today, saying that Sandra Day O'Connor never had any philosophy, that she just moved around on issues. 

SIMPSON:  Well, I think it's a bit unfortunate that Robert Bork—and I consider him a friend.  I helped—I did everything I could for his nomination. 

And he asked if he should withdraw his name.  I said, I wouldn't withdraw your name.  There are going to be 38 or 39 people out here who are going to tell your grandchildren, Democrat and Republican alike on this floor, of what a great guy you are.  But it seems to me that he has gone off into Sodom and Gomorrah and bitterness and vituperative activity and cynicism.  And that's just uncharacteristic. 

So, whatever he may have said about her, I think it was based on this unfortunate defeat that he took, which has still embittered him, I think. 

MATTHEWS:  Let me ask you, Bob—I have got to ask you a news question.  You're representing Judith Miller of “The New York Times.”  She's refusing to turn over the source of her story she was at least reporting on, digging on, if not printing.

What is going to happen to her?  Is she going to jail? 

BENNETT:  Well, I'm going to do everything I can to prevent it.  So, we'll have to have wait until Wednesday to see what happens. 

MATTHEWS:  Do you think the fact that “TIME” magazine as an organization is putting out the notes that Matt Cooper used, her compadre in this situation, will relieve her of having to go to jail? 

BENNETT:  I don't know, Chris, because I don't know what's in those notes.  I hope so. 

MATTHEWS:  OK. 

BENNETT:  It is time for a little wisdom and compassion to be exercised.  And I hope some is. 

You know, Chris, one thing on Sandra Day, let's not forget what she did for women.  And I'm particularly interested in that, as the father of three grown daughters.  Sandra Day O'Connor couldn't get a job, even though -- out of law school, even though she finished third in her class. 

MATTHEWS:  At Stanford. 

BENNETT:  Incidentally—at Stanford.  And justice Rehnquist finished first, by the way, a bit of trivia for people. 

(CROSSTALK)

BENNETT:  She couldn't get a job as a lawyer.  She was offered a job as a secretary.  And then she became this wonderful justice of the Supreme Court.  So that's one of those good-bad stories, you know, terrible when it happened, but good that we maybe have made some progress. 

MATTHEWS:  Let me ask you, Senator Simpson, you know the politics of the Senate.  You were a real leader in the Senate.  But you're also one of those Republicans who thinks a woman has a right to choose an abortion, should she decide.  You've been classed as a pro-choice person.  Do you think the president can find a middle ground here and get those senators in the middle who said they won't filibuster, especially those seven Democrats? 

Is there a middle course here that will avoid endless argument, endless stalling and filibustering? 

SIMPSON:  Well, the middle course depends on the nominee.  If there is this unfortunate rigidity, as I describe it—I mean, I failed the test often, because I was pro-choice and I have great feeling about the equal rights of gays and lesbians.  So, I've always been perceived as not quite there in the faith. 

But I—I just—just think that the abortion issue is going to be the most searing issue for the nominee.  And I think the president, if he is going to present someone who just has these series of decisions that are so hard, hard on social issues, that that person is not going to get confirmed, because they're going to dump this 50-50 -- this 51-59 business on the judgeship and go back to the filibuster.

And I think—and I know I'll be receiving some mail on this.  I personally think he is going to have to really pick someone who is truly a moderate.  And that will just send a shiver through the right—wing cuckoos in my party.  But it won't send a shiver through the thoughtful Republicans and the religious Republicans.  I don't look on that as a derogative phrase.  There are plenty of people who are religious, and it shouldn't be a derogative phrase. 

MATTHEWS:  Senator, thank you very much.  Senator Alan Simpson, great to have you on HARDBALL, as always.

Bob Bennett, thank you for joining us.

BENNETT:  Thank you. 

(CROSSTALK)

MATTHEWS:  When we return, we'll preview the potential candidates President Bush might consider to replace Sandra Day O'Connor with attorneys Laurence Tribe and Ben Ginsberg.

And, on Sunday, Tim Russert has the chairman and the ranking member of the Senate Judiciary Committee on “Meet the Press,” Senator Arlen Specter of Pennsylvania, and the ranking member, Pat Leahy of Vermont.  That's Sunday at a special time, 8:00 a.m., on NBC.

You're watching HARDBALL, only on MSNBC.  

(COMMERCIAL BREAK)

MATTHEWS:  Coming up, who might replace Justice O'Connor on the Supreme Court and what kind of a debate can we expect?

HARDBALL returns after this.

(COMMERCIAL BREAK)

(NEWS BREAK)

MATTHEWS:  Welcome back to HARDBALL.

Today's news that Supreme Court Justice Sandra Day O'Connor is retiring tees up the battle for her succession.  So, who are the leading candidates? 

Ben Ginsberg is a Republican attorney.  He is now an adviser to Progress For America.  Laurence Tribe is a Harvard law professor and was campaign attorney for Al Gore.  Actually, he was his attorney during the recount.  We're going to have him joining us on the phone. 

Let me go to Ben first. 

Ben, what is he looking for?  What is the cut of the jib of the new Supreme Court justice? 

(LAUGHTER)

MATTHEWS:  Generally speaking, before we get the names. 

BEN GINSBERG, FORMER BUSH-CHENEY CAMPAIGN ATTORNEY:  Well, the cut of the jib is a great deal of integrity, a great judicial background, a learned jurist, someone who is young, probably in his early 50s, late 40s, perhaps. 

MATTHEWS:  So they'll have a long service. 

GINSBERG:  Sure.  Absolutely.  These chances come along very infrequently and you take advantage of them.

MATTHEWS:  Someone around 40, late 40s, early 50s.

GINSBERG:  Late 40s, early 50s, I would think. 

When you read the person's writings, whether in private practice or more likely on the bench, it is a sound, conservative judicial philosophy. 

MATTHEWS:  Does this person have to be someone the president knows personally? 

(CROSSTALK)

MATTHEWS:  Because of the mistake made by his father, in his father's

·         his father's lights, that the selection of David Souter, on the recommendation of Warren Rudman, the senator from New Hampshire, turned out to be a more liberal appointment than he had intended. 

GINSBERG:  Well, the process might be slightly different than that appointment.  But I think you have to both feel a degree of compatibility between the president and the nominee, but also to have a thorough examination of what the person has done on the record. 

MATTHEWS:  What do you think the candidate is facing in terms of betting on Capitol Hill? 

I mean, what kind of—you're laughing.  But what kind of fire is he is going to—it possible that the president can find the strike zone here, that there is in fact a nominee who could get a vote, not a big majority of vote, but get a 55-45 kind of vote, by October?

GINSBERG:  Yes. 

MATTHEWS:  By when the court comes back. 

GINSBERG:  I think it is absolutely possible that that nominee can be found. 

But in terms of how much fire the person is going to get, you saw even today, on a day to really praise Sandra Day O'Connor's brilliant career, that the groups on the left came back with a whole slew of vituperative e-mails to supporters.  So, this person is going to draw fire, no matter who it is. 

MATTHEWS:  What about the veto that might come from the right if the               person were to pick someone a little too left by their standard?  For example, what will Focus on the Family, the Family Research Council—we just had Tony Perkins on.  Does that group hold a veto over the president in his selection? 

(CROSSTALK)

GINSBERG:  I believe the president makes this decision based on what the president wants to see in his first Supreme Court nominee.  I think he'll listen to certainly voices on the right.  But, as he said today in his statement, he'll be consulting with the members of the Senate. 

MATTHEWS:  Let's assume that the Bush family—and the they do share

a lot of thought of feelings together in victory and defeat—that they're

·         they're very happy that Clarence Thomas was their guy.  He's still on the court.  He'll be there the rest of our lives, perhaps, because he came in as a young man. 

They're not happy about David Souter.  So, given that, Alberto Gonzales, the president's—the attorney general of the United States, who has already passed muster in the Senate, is he the most likely candidate to expect in the next couple weeks for the Supreme Court? 

GINSBERG:  Well, I think he is one of the most likely candidates.  But the truth is, about this process, that there are probably less than a dozen people involved in it. 

They're all White House staffers and they're not talking. 

MATTHEWS:  OK, we're going to look at this list.  It includes Alberto Gonzales, the attorney general, a number of appellate judges, John Roberts, Emilio Garza, Michael Luttig, Michael McConnell, all names that might well be at the front of this list.

More with Ben Ginsberg.  We're vetting the list already. 

You're watching HARDBALL, only on MSNBC.  

(COMMERCIAL BREAK)

MATTHEWS:  We're back with attorney Ben Ginsberg. 

What did the White House think about Sandra Day O'Connor?  What did the people at the Republican Party think about her? 

GINSBERG:  I think they had a great deal of respect for her intellect and the general class she brought to the court.  I think they respected a great number of her opinions, disagreed with some on some key issues.  But, overall, they found her a jurist in the highest and best conservative mold. 

MATTHEWS:  Did you hear what Bob, Bob Bennett said, that out of something like 200 5-4 decisions going back to '95, she was in three-quarters of them?

(LAUGHTER)

GINSBERG:  Yes. 

MATTHEWS:  That she, in other words, was the pivotal person on affirmative action in the Michigan law school case, on the Ten Commandments in the Kentucky case, where she came out against it, on the 2000 election of the president.  There's the one that will make your life right there.  She put George Bush in the White House. 

(LAUGHTER)

MATTHEWS:  And then 6-3 decisions, like the Lawrence case, about gay rights and the Roe v. Wade case 6-3. 

She is—my theory.  Test me on this.  She saved the Republican Party a lot of trouble, because she has kept abortion out of the electoral process. 

GINSBERG:  I'm not sure you would say she saved the Republican Party. 

But I think she was a key part of the conservative movement, and in terms of allowing conservative thought to flourish, what it's school voucher cases, the property rights cases, some of the initial quota cases and affirmative action cases.  There were others when she strayed.  But she was a conservative jurist. 

MATTHEWS:  Why—why would—did it take so long for a woman to be put on the court?  I keep thinking about that.  I guess times change, but it took until '81. 

GINSBERG:  Yes, it did.

MATTHEWS:  Over 200 years of American history to get a woman on the Supreme Court. 

GINSBERG:  Yes. 

And that really was paralleled in law firms around the country.  I mean, there were years when people like my mother went to law school and tried to get out and find a job in a major firm.  Sandra Day O'Connor couldn't find a job in a major firm.  And it, unfortunately, took the legal profession too long to catch up. 

MATTHEWS:  She was number three at Stanford Law School.

GINSBERG:  Yes. 

MATTHEWS:  And she couldn't—and she was offered a job as a secretary, apparently, coming out of school. 

GINSBERG:  Yes.  Just outrageous.  But, to this day, there's not been an Hispanic named to the Supreme Court. 

MATTHEWS:  Do you think the president will feel—let me ask you a general question.  It's historic that Ronald Reagan—and we were hoping to get Nancy Reagan tonight, but she's had an accident.  We're going to try to get her at some point just for a whole show, I think.

But Ronald Reagan made an historic decision to put a woman on the Supreme Court.  Do you think, to replace her, the president, George Bush, will have to pick someone like the first Latino? 

GINSBERG:  Well, look, he's going to pick the most qualified jurist for the job, in his mind. 

But, certainly, the attribute of having an Hispanic, when this president has done—put a real major effort into expanding the Republican base of the Republican Party, is—is something you got to consider. 

MATTHEWS:  I think we have Laurence Tribe on the phone right now.

Professor, thank you for joining us. 

What do you think this fight is going to look like, whoever the president puts up?

LAURENCE TRIBE, FORMER GORE CAMPAIGN ATTORNEY:  You know, Chris.  I couldn't hear.  Do you want to repeat that question?  I'm sorry. 

MATTHEWS:  Yes. 

Do you think there will be a fight...

TRIBE:  Oh, sure.

MATTHEWS:  For the replacement, matter who the president nominates? 

TRIBE:  I think it's inevitable.  It's inevitable.

The stakes are so high, because Sandra Day O'Connor really was the most powerful woman in America.  She was quite brilliant and she was strategically placed so that she became the pivotal vote.  And, in her more than two decades on the court, she really made an enormous impact.  And because every major issue of contention in the law, from abortion to African-American to states' rights, hangs by a single vote, and it was usually Sandra Day O'Connor's vote, it is inconceivable, I'm afraid, that there wouldn't be a fight, because the interest groups are arrayed on both sides.  The stakes are stakes they know about.

MATTHEWS:  In the year 2000, she voted with the 5-4 majority in the case of Gore vs. Bush.  She helped make President Bush president.  Do you think that was a partisan decision on her part because she was a Republican state legislator? 

TRIBE:  You know, I don't think so.  I think she and the others mistakenly believed that the Florida court were screwing things up, that they were causing national chaos, that the country needed to have an answer. 

And I think that's what really motivated them more than anything else.  They really believed that, because the election was so close, that it was kind of meaningless to continue the thing well past Christmas.  And I think they therefore believed that they had to come...

MATTHEWS:  OK.

TRIBE:  (AUDIO GAP) some rationale for bringing it to an end. 

MATTHEWS:  OK. 

Professor Laurence Tribe of Harvard University Law School—thank you very much, Professor.

TRIBE:  Thank you, Chris. 

MATTHEWS:  I hope you can come back as this debate continues. 

This weekend, join NBC's Brian Williams, “Newsweek”'s Jon Meacham and myself for an NBC special: “The Supreme Court: Defining America.”  It's a big documentary.  We'll bring you the stories behind the headlines of the decisions that have shaped this country today and things you may not know about the justices themselves on the Supreme Court. 

That's tomorrow night, 7:00 Eastern time, and again Sunday at 9:00 p.m. Eastern.  It's a major show.  It couldn't be more topical.

You're watching HARDBALL on MSNBC. 

(COMMERCIAL BREAK)

(NEWS BREAK)

MATTHEWS:  Welcome back to HARDBALL. 

Late today, I interviewed Republican Senator George Allen of Virginia.  And I asked Senator Allen whether President Bush's nominee to replace Sandra Day O'Connor will get an up-or-down vote by October. 

(BEGIN VIDEOTAPE)

SEN. GEORGE ALLEN ®, VIRGINIA:  Well, we have to have it completed by October 1.  And, in the interim, yes, I do think there can be fair and thoughtful consideration, examination of the nominee as to their competence, their qualifications, their judicial philosophy, and, ultimately, of course, an up-or-down vote.  That's the way it has always been done. 

And most of the time, it is done in less than 60 days.  So, we have plenty of time for the president to nominate, to have fair consideration.  And I'm hopeful that we can avoid these—these just vicious character assassinations and attacks and, again, look at the qualifications, competence and philosophy of the—of the nominee. 

MATTHEWS:  Let me ask you about two groups that might have veto power.  First of all, the Democrats.  Do you believe the Democrats mean it, those seven Democrats meant it when they said that they would—they would make sure there was a vote, no messing around with filibusters if it was a normal, a normal, ordinary nomination, it wasn't somebody from the far right?  Do you believe them? 

ALLEN:  Yes, well, they used—the phrase was extraordinary circumstances. 

MATTHEWS:  Right.  Did you buy that? 

(CROSSTALK)

ALLEN:  Well, we'll see.  It hasn't really been tested yet. 

And so, we don't know what the ground rules are for that because it is somewhat subjective.  But, again, I think the president will—will nominate someone, I hope, who has a proper judicial philosophy.  I think that, if the president nominates someone who understands the role of a judge is to apply the law, not invent the law...

MATTHEWS:  Right. 

ALLEN:  ... to look at what the founders' intent were in the Constitution and not amend it, the Constitution, by decree.

For example, we are not going to get into specific cases, but I don't think we want a judge like they have on the 9th Circuit, who knocks out the Pledge of Allegiance because of the words under God. 

MATTHEWS:  Right. 

ALLEN:  Nor do I want to have someone on the Supreme Court who expands government power and allows local governments to act like commissars to take someone's home because they think they can derive more revenue on another...

MATTHEWS:  Eminent domain questions. 

ALLEN:  Yes.  Right.  We don't want judges like that.

(CROSSTALK)

MATTHEWS:  Let me go through the litmus test here. 

Can your party support a judge for the Supreme Court to fill this vacancy of Sandra Day O'Connor who does follow a strict constructionist attitude, in other words, try to think what the founder fathers meant when they wrote this stuff, when they wrote the Constitution, but also recognizes the importance of precedent?

ALLEN:  Yes.  Precedent is important. 

(CROSSTALK)

MATTHEWS:  In other words, don't try to overturn Roe v. Wade right when just because you get in there. 

ALLEN:  Just so—yes, let's think this out very rationally.

The intent of the law or intent of those when they passed amendments to the Constitution are paramount.  That's the most important.  Precedent also is important, but I wouldn't give it that same sort of hierarchy of priority.  In that, you can have precedents.  There is a lot of precedents that are overturned because they're wrong. 

There was this precedent that we had in this country that separate but equal was legal. 

MATTHEWS:  Right. 

ALLEN:  That was overturned in Brown vs. Board of Education.  So, you don't want to have this stultifying adherence to precedent, without recognizing that certain things can change over time and that some of the previous rulings were wrong. 

MATTHEWS:  Let me...

ALLEN:  But the Constitution doesn't change.  And that should not be amended by decree. 

MATTHEWS:  You—do—do the—do the religious conservative groups, like Focus on the Family, Family Research Council, do they have a veto on this nomination?  Can they say to the president, nice try, but Gonzales isn't far enough right on abortion; you can't put Ted Olson in; it has to be one of our people?  Do you believe that? 

(CROSSTALK)

MATTHEWS:  Do they have kind of clout?

ALLEN:  Here's what I expect the president to do.  I expect him to keep his promises to the American people. 

And the president said he wants judges who—he used the term strict constructionists and so forth.  So, I think that will be very much consistent with the views of some of those organizations. 

MATTHEWS:  But a Gonzales can be a strict constructionist and still believe there is settled law on the issue of abortion rights, can't he?  Can't a judge conceptually be on your side philosophically, but, in this case, say this issue has been resolved with numerous decisions, the Webster, the Pennsylvania case, the Roe case, and leave it alone?

ALLEN:  But even—even Roe vs. Wade, there have been a lot of decisions since then, some upholding it, others having modifications of it, because what the Roe vs. Wade decision was based upon the technology in the field of medicine and what was known in the early 1970s. 

MATTHEWS:  Right.

ALLEN:  The viability of an unborn child or fetus is different than it was back then.  So..

(CROSSTALK)

MATTHEWS:  Is this your litmus test, Senator, that the person has to be opposed to the right of a woman to abortion? 

ALLEN:  No.  My litmus test is, I want judges who will apply the law, not invent the law, not act as if they're super-legislators.  And I don't want them amending the Constitution by decree. 

And you have to really determine whether that person truly believes it, because, once they put that robe on, they're appointed for life. 

MATTHEWS:  Right. 

ALLEN:  And you've seen a lot of them that have been appointed by Ronald Reagan, by Richard Nixon, by John F. Kennedy.  They get in there and they're not the type of justices they thought. 

MATTHEWS:  How does the president and how does the Senate make sure that a person, male or female, whatever they are, sticks to what you think they're going to be? 

ALLEN:  You have to look at their past actions.  You have—to the extent you can.  Past performance is a good indicator of what they would do in the future. 

And I have a certain way I ask certain nominees, when I was governor, as well as now as a U.S. senator, to really get an idea of what their philosophy is.  And, of course, it is different on an appellate judge than a trial judge, where demeanor and so forth matters. 

MATTHEWS:  You've already voted on Alberto Gonzales, right?

ALLEN:  Yes, I have. 

MATTHEWS:  Would he be a fit candidate for Supreme Court?  

ALLEN:  Rather than getting into details...

MATTHEWS:  No, because you've already approved him for attorney general.  What's the difference between putting him on the court? 

ALLEN:  Before I start going through a lot of different names of people who I would think would be...

(CROSSTALK)

MATTHEWS:  No, people you've already approved I'm going through.

ALLEN:  There's others I've voted for that may be not on the court high who I also think would be good nominees as well. 

MATTHEWS:  Would you—I guess I'm trying to get out.  You want a strict constructionist.  You've been clear on that. 

ALLEN:  Well, I...

(CROSSTALK)

MATTHEWS:  Do you want a person who is pro-life on abortion? 

ALLEN:  I want someone—as I said, you're not going to get me into specific issues, because we can't even get into those in the cross-examination or examination of a judge.  I want a judge who has that overall philosophy and believes it in his or her marrow. 

MATTHEWS:  OK. 

ALLEN:  That their role is to apply the law, not invent it.

MATTHEWS:  You're sitting on the bench of the Senate Judiciary Committee. 

ALLEN:  Right. 

MATTHEWS:  And you watch, the candidate, the nominee, say, I do believe in the notion of privacy.  I believe it is inherent—the penumbra of privacy is inherent in our Constitution.  Even though the writers didn't put it in there, I believe in that notion of privacy.  Would you immediately shake your head and say, look, here's another of these jokers that is making up the law here?

ALLEN:  Oh, I would probably want to follow up with some more questions on that individual. 

MATTHEWS:  So, it wouldn't just be being for Roe v. Wade.  It would be someone who believed, unlike Robert Bork, for example, in the notion of privacy, as covered by due process? 

ALLEN:  You can come up with a lot of different rationales for it. 

What I would like to know is what their thought process is.  I don't want somebody who says I have gotten on the bench or kept a view that I get on and I'm going to do what I think is right.  Now, that sounds really good if somebody is wanting to be a legislator.  I'm going to vote for what is right.

But, as a judge, there are great restraints.  The rule of law is important, the fair adjudication of disputes. 

MATTHEWS:  OK. 

ALLEN:  The protection of our God-given rights and upholding the Constitution under that rule of law is very important.  And so, I don't want an activist judge and—or justices. 

And so, all of these are indicators.  Each and every one of them is not dispositive.  But you do really want to find out that, when they put that robe on, and they're in there for life, are they going to adhere to those—those principles that our founders expected out of judges?

MATTHEWS:  Was Sandra Day O'Connor someone who met that test? 

ALLEN:  I think she did.  For the most part, she did.  Did I agree with every one of her decisions?  No.  I didn't agree with some of the more recent ones.

But she was on the right side on that issue in Connecticut, where they were seizing and condemning the property of private owners.  She stood on the side of private property rights and not having the government take it away.  The other thing great about Sandra Day O'Connor, she served in the state legislature.  And she realized in many decisions that the federal government was not all-powerful. 

She understood that the people in the states do have rights and prerogatives.  And I think she stood up very strongly. 

MATTHEWS:  Except in the case of the 2000 presidential election, when she voted to intervene. 

ALLEN:  Well...

(CROSSTALK)

MATTHEWS:  ... states' rights, except for the nomination—the election of President Bush. 

ALLEN:  Well, you can argue this case.  And I'm sure you will forever. 

But on cases, Sandra Day O'Connor really did protect the rights and—and prerogatives of the people in the states to make those decisions.  And one other thing.  When Ronald Reagan nominated, and she was confirmed, she was the first woman on the Supreme Court.  And she, I think, has been an inspiration to a lot of young women to aspire to be in the highest court or in the law. 

MATTHEWS:  Thank you very much, Senator George Allen of Virginia.

(END VIDEOTAPE)

MATTHEWS:  When we return, “The National Journal”'s Stuart Taylor and “TIME” magazine's Viveca Novak.

This is HARDBALL, only on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  Coming up, a preview of the debate over the Supreme Court vacancy left open with the retirement of Justice Sandra Day O'Connor.

HARDBALL returns after this.

(COMMERCIAL BREAK)

(NEWS BREAK)

MATTHEWS:  We're back on HARDBALL talking about the retirement today of Supreme Court Justice Sandra Day O'Connor.  It was a big surprise. 

We're joined right now by Stuart Taylor of “The National Journal” and “TIME” magazine Washington correspondent Viveca Novak.

Let me ask you this.  Were you shock today?

STUART TAYLOR, “THE NATIONAL JOURNAL”:  I was.

MATTHEWS:  That she dropped out? 

TAYLOR:  I didn't—I thought that, if it hadn't happened early in

the week, it wasn't going to happen this week.  And I also thought it was -

·         like, everyone, that the—the betting money was that Chief Justice Rehnquist would retire. 

And so, she was a big surprise.  I mean, it wasn't inconceivable that she would retire.  Her husband is quite sick, I think. 

MATTHEWS:  Well...

(CROSSTALK)

TAYLOR:  But it was a surprise. 

MATTHEWS:  He's got Alzheimer's.  It's been reported in the press. 

TAYLOR:  Yes. 

MATTHEWS:  Let me ask you, Viveca, were you surprised today? 

VIVECA NOVAK, “TIME”:  Oh, totally.  Totally.  I, too, you know, thought it was not likely to happen at this point and that it would be the chief justice. 

MATTHEWS:  Was the White House—do you believe, both of you, that—you first—that the White House is prepared to make this appointment?  Or is the president dead serious when he says I'm going to wait to get some recommendations from the—from the Justice Department? 

NOVAK:  I think the White House has to be ready.  I think...

MATTHEWS:  Already?

NOVAK:  Yes.  I mean, that's obviously something of a guess.  And it is some things I've heard. 

But, also, the rumor that she would retire has been going around not just for the last week or so, when Bill Kristol originally reported it, but for years, really, ever since Bush v. Gore.  So, I think they have thought about this long and hard.  And I think they're pretty ready.

MATTHEWS:  A lot of it has to do with her husband's condition. 

NOVAK:  Yes. 

MATTHEWS:  So, her health is great. 

NOVAK:  Yes. 

MATTHEWS:  Let me ask you this.  Do you think the White House has a name? 

TAYLOR:  Oh, they've got...

MATTHEWS:  I mean a name.

TAYLOR:  I think they've got—they're got—I think they have two or three main names. 

I think the president's subordinates have settled on Attorney General Gonzales, on Judge Michael Luttig, on possibly Judge John Roberts.  And there's a few others.  But what—but I don't think the president has decided yet.  I think he may decide, gee, I would like to do something else. 

MATTHEWS:  Let's talk about the standards here, youth, number one?

NOVAK:  Right. 

MATTHEWS:  Somebody that is not 65 or 70. 

NOVAK:  That's very important. 

MATTHEWS:  Why? 

NOVAK:  Because the president wants to leave his mark on this court for a good long time. 

MATTHEWS:  Like Clarence Thomas. 

NOVAK:  Right. 

MATTHEWS:  Stay there a long time, 30 years, right?  Do you agree? 

TAYLOR:  I think that's likely.

MATTHEWS:  Somebody under 60, dramatically so, like 50 years old?

TAYLOR:  Probably, especially if it is not chief justice, which it's not with Justice O'Connor.  He might go for somebody older as chief justice, but I think not for this position.

MATTHEWS:  Somebody he got a good read on. 

(CROSSTALK)

NOVAK:  Yes. 

MATTHEWS:  Who won't surprise him and go left up there, like Souter did, and Brennan did before him, and Warren did before him, you know.  And other guys have gone right, like Frankfurter has gone right and Byron White went right.  But no surprises, right?

TAYLOR:  Well, I think that's—that's important. 

But I also think it is very important, which is why Gonzales is so high on the list, that it is somebody he feels comfortable with, that he personally likes. 

MATTHEWS:  Comfortable with in what way, sense?  Play golf with, hang out with? 

(CROSSTALK)

NOVAK:  Like he said about Putin, that he looked him in the eye and took their measure. 

MATTHEWS:  Do you think it is that intimate of a question?  Or is it about having be able to read them so you figure, I know this guy?

(CROSSTALK)

TAYLOR:  I think it is about, I like this guy.  He's my friend.  I would love to make him the first Hispanic justice. 

And, frankly, I think, whatever Gonzales does after he is on the court is much less important to the president.  I don't think if—if the president knew that Gonzales would not overrule Roe vs. Wade, I think he would like to nominate him anyway.  I'm not sure he wants Roe vs...

MATTHEWS:  In other words, if he's generally a strict constructionist, but believes in precedent, he will pass muster with the president. 

(CROSSTALK)

TAYLOR:  I—I—I don't think there's any reason to think that Gonzales would be an especially conservative justice.  And I don't think the president cares much. 

MATTHEWS:  Wow.

We'll be right back with Viveca Novak and Stuart Taylor.  Looks like another Sandra Day O'Connor is about to be appointed, a moderate conservative.

This is HARDBALL, only on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  We're back with Viveca Novak and Stuart Taylor.

The Democrats—this is not just a partisan issue by the president.  He has got to get this new candidate who replaces Sandra Day O'Connor confirmed by the Senate.  He needs to get a vote, first of all.

Stuart, you've been studying this.  Is there a strike zone that the president can hit that will get him a vote by October, get him a vote and a confirmed candidate by—and a filled vacancy on the Supreme Court by the 1st of October? 

TAYLOR:  Well, I think there certainly is.  I think depending on who the nominee is, the strike zone may get bigger or smaller. 

John Roberts, who I mentioned earlier, gives him a pretty big strike zone.  I don't think the Democrats could come up with much against him, even though the conservatives like him quite well.  Gonzales, because of being Hispanic and because the Democrats think of him as being moderate, would have those pluses.  But he has got Abu Ghraib and Guantanamo and stuff like that hanging around his neck. 

Michael Luttig, the third, the most conservative, the favorite of conservatives and the one the liberals...

MATTHEWS:  From Richmond, Virginia.

(CROSSTALK)

TAYLOR:  The one the liberals fear the most, I think that would be a titanic battle.  I'm not sure who would win. 

MATTHEWS:  Viveca, is there a set of judges who you could see clearly getting a vote and confirmation? 

NOVAK:  Yes.  I think there are a few.  But I think it is a pretty small number who would cleanly get confirmed without a big battle.  And Gonzales, I think, is—you know, remember, the vote for him to be attorney general, confirming him as attorney general, was a lot closer than these things usually are for A.G.s. 

MATTHEWS:  Do you believe that the president is going for someone young, high 40s, early 50s, someone who has an appellate background?  Does it has to be somebody who has court experience, Viveca? 

NOVAK:  Not necessarily. 

MATTHEWS:  No, but for this president? 

NOVAK:  For this president, I think it would be unlikely for him to pluck someone out of political office that didn't have judicial experience, not impossible, but unlikely. 

MATTHEWS:  Stuart...

TAYLOR:  I don't think...

MATTHEWS:  Does it have to be a judge? 

TAYLOR:  I don't think you need to have been a judge to be a good Supreme Court justice.  But it's...

MATTHEWS:  No, but does he think so? 

TAYLOR:  I don't think he thinks so.  I think it helps with confirmation.  All—eight—all eight of the current justices, with the only exception being Rehnquist, came from appellate courts, including Justice O'Connor.

MATTHEWS:  But how can you prove a person is a strict constructionist and knows the Constitution and follows it as literally as possible unless they've done so as part of their career?

TAYLOR:  Well, take Ted Olson, for example, who's solicitor general.  He's never been a judge.  He's a—he's a—he would be a—he would be a—he has been mentioned as a possible candidate for nomination.  Now, he's 64, which is a count against him.  But, other than that, I think the president probably would think he would be fine. 

MATTHEWS:  So we're agreeing it is a young person.  It is somebody the president trusts.  Someone like Gonzales would be likely. 

TAYLOR:  I think so, except for Gonzales has the first problem, which is that the conservative base would not be happy about Gonzales.  I don't know that they would go into rebellion, but they would be unhappy because they don't think he is one of them.  And Gonzales would be attacked very hard from the left because of Abu Ghraib and all that. 

MATTHEWS:  Yes. 

He could be John Boltonized. 

Anyway, thank you very much, Stuart Taylor of “The National Journal,” Viveca Novak of “TIME,” right?

NOVAK:  Right?

MATTHEWS:  Anyway, tune in this weekend for an MSNBC special on the Supreme Court I'm hosting with NBC's Brian Williams and “Newsweek”'s Jon Meacham.  It is called “The Supreme Court: Defining America.”  And here's a preview. 

(BEGIN VIDEO CLIP, “THE SUPREME COURT: DEFINING AMERICA”)

MATTHEWS:  Let me ask you about the selection process.  Presidents go to great effort to try to pick their man, their woman who will be their mark in history.  How good is their batting average? 

BRIAN WILLIAMS, NBC ANCHOR:  Well, there are two great exceptions that show that people can change and vetting can only go so far. 

Dwight David Eisenhower picked a young man, a product of Newark, New Jersey, put himself through Harvard on scholarship, William Brennan, one of the great towering liberals of all time on the Supreme Court.  Always, President Eisenhower did, always referred to Brennan as one of his great mistakes in office. 

Along comes President George Herbert Walker Bush, looking for a candidate who might be a good rock-ribbed Yankee conservative, someone who had not had a long paper trail.  They picked David Souter of Weare, New Hampshire, the quiet justice.  No one knew anything about him, except he lived in a small house full of books.  He had worked on just a few cases. 

Souter is to George Herbert Walker Bush what Brennan was to Eisenhower.  Brennan is now gone, but some of his opinions—and it is hard to believe—and what a surprise to the Bush family.  Some of his opinions live on in David Souter of Weare, New Hampshire. 

(LAUGHTER)

(END VIDEOTAPE)

MATTHEWS:  And that is the mistake they don't want to repeat. 

Join Brian Williams, Jon Meacham and myself for “The Supreme Court:

Defining America,” Saturday night at 7:00 p.m. Eastern and again Sunday at 9:00 p.m. Eastern.

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

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

END   

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