updated 7/6/2005 11:06:09 AM ET 2005-07-06T15:06:09

Guest: Barbara Cochran, Tom Oliphant, Jim Taricani, David Frum, Bob Shrum, Ralph Neas, Tony Perkins

ANDREA MITCHELL, GUEST HOST:  President Bush tells special interest groups to cool it and tone down the heated rhetoric in the partisan battle over the Supreme Court.  Plus, the president defends his great friend Attorney General Alberto Gonzales, a target of conservative critics.  July 5 and the political fireworks in Washington are just starting. 

I'm Andrea Mitchell.  Let's play HARDBALL. 

Good evening.  I'm Andrea Mitchell, in for Chris Matthews. 

President Bush is in Denmark tonight before going to the G8 Summit in Scotland.  And the White House says he will not name a replacement for the Supreme Court Justice Sandra Day O'Connor, at least until he is back in the country. 

In an interview with “USA Today,” his first since O'Connor announced her retirement Friday, the president said this about the looming White House political battle, “I would hope that the groups involved in this process, the special interest groups, will help tone down the heated rhetoric and focus on the nominee's credentials and philosophy.”

Mr. Bush also defended Attorney General Alberto Gonzales, who has been attacked by the right as being too liberal for the Supreme Court.  The president told “USA Today”: “Al Gonzales is a great friend of mine. 

I'm the kind of person, when a friend gets attacked, I don't like it.  We're lucky to have him as the attorney general and I'm lucky to have him as friend.”

I'm joined now by leaders of two of the most active groups on either side of the battle.  Ralph Neas is the president of the liberal group People For the American Way, and Tony Perkins, president of the conservative Family Research Council. 

Welcome, both. 

RALPH NEAS, PRESIDENT, PEOPLE FOR THE AMERICAN WAY:  Thank you. 

TONY PERKINS, PRESIDENT, FAMILY RESEARCH COUNCIL:  Thank you. 

MITCHELL:  Mr. Perkins, the president says, cool it.  Cool the rhetoric and stop attacking his good friend.  You've been quoted as saying that you think Alberto Gonzales has a great future as attorney general, a very pointed reference to the fact that he is not someone that you would like to see on the Supreme Court.  Are you going to back off and can you accept Alberto Gonzales as the president's possible nominee? 

PERKINS:  Well, I would agree with the president, that the rhetoric does have a tendency to get out of hand.  What we need to focus on is the process, that we have the president here, who has been reelected—has been reelected on large part because of his commitment that he is going to nominate justices along the line of Scalia and Thomas.  The American people put him back in office in large part because of that.

And we need to focus on the process.  These nominees need and deserve an up-or-down vote.  And that's the way the process should work. 

MITCHELL:  But you haven't answered the question, whether or not you will now be more open-minded about Alberto Gonzales.  You ruled him out over the weekend. 

(CROSSTALK)

PERKINS:  No.

As the president said, we're lucky to have him as attorney general.  He has done some things that are very important to us.  Announced an initiative to crack down on pornography and obscenity.  We would like to see him follow through on that.  We have be gotten into the process of the name game, of naming this candidate being acceptable or that candidate. 

MITCHELL:  Yes.  But you've pretty much ruled out Alberto Gonzales. 

You've drawn a hard line, a red line, against him. 

PERKINS:  We have said—no.  We have said that the president committed to nominate justices along the lines of Scalia and Thomas, with that type of judicial philosophy.  That's what we support.  And that is what we'll work to see accomplished.

Until the president makes that kind of nomination, we are not going to say anything about the prospective nominee. 

MITCHELL:  Well, “The National Review,” a conservative publication, said in an editorial that, if Alberto Gonzales were the nominee, they would be appalled and demoralized. 

Ralph Neas, does that reaction against Alberto Gonzales make him someone you could support? 

RALPH NEAS, PRESIDENT, PEOPLE FOR THE AMERICAN WAY:  It's been amazing, the last three or four days, how the right wing has first attacked Sandra Day O'Connor, after attacking and threatening to impeach Anthony Kennedy.  These are two Reagan mainstream conservatives. 

And then, in the last several days, they've been attacking Alberto Gonzales, another conservative, a close friend of the president.  I think when the president was talking about toning down the rhetoric, he was addressing his friends on the radical right. 

With respect to Alberto Gonzales, we do have some problems with him, especially with respect to his counsel to the president on Abu Ghraib and on the detainees and his memos to Governor Bush back in the 1990s.  He has not exactly demonstrated a real healthy respect for the rule of law.  However, we have not, unlike the right wing, taken a position. 

We think that—that the Senate is going to have to exhaustively examine the public record of Alberto Gonzales.  And the hearings, with all due respect to groups along the political spectrum, are the most important part of advise and consent.  And it will be fascinating to see what his answers would be to a range of civil liberties questions, civil rights questions.

What we would like is a nominee in the mold of Sandra Day O'Connor, fair, a woman of courage, a woman of common sense, very unpredictable.  We did not always agree with her.  That's for sure.  But I'll tell you, she was the fifth and deciding votes on a range of decisions protecting reproductive health and privacy, protecting clean air and clean water, equal opportunity, separation of church and state. 

If she is replaced with someone in the mold of Scalia and Thomas, the way Tony Perkins puts it, a right-wing conservative, more than several dozen precedents will be overturned.  It would be a constitutional catastrophe.

MITCHELL:  With all due respect, the rhetoric has been as tough and as partisan on the left as on the right, maybe not from you, but certainly from others. 

For one thing, Senator Kennedy said that he felt that it was really a matter for the president to come up with a consensus candidate.  There's nothing in the Constitution and there's nothing in advise and consent that says that president should do more than consult with Democrats or with the opposition party. 

NEAS:  Well, the Senate and the president have a co-equal constitutional responsibility with respect to lifelong federal judges.

Of course the president can ignore the Senate.  What Senior Kennedy is doing is exactly what conservative Republican Senator John Warner, ex-conservative Senator Alan Simpson said over the weekend.  Let's not have a fight.  Let's not have a polarizing battle.  The country is at war.  We have a war on terror.  We have got tremendous domestic economic challenges. 

Let's get a unity candidate.  Let the president be the uniter, rather than a divider.

PERKINS:  The whole idea...

NEAS:  At this time—at this time in our nation's history, we need the president to bring the country together in someone that everyone can support, not just Tony Perkins and the radical religious right. 

(CROSSTALK)

MITCHELL:  Let's let Mr. Perkins get into it.

PERKINS:  The whole idea that—that...

MITCHELL:  Mr. Perkins, what about a consensus candidate? 

PERKINS:  Well, first...

MITCHELL:  Would you support someone who is a mainstream moderate conservative, whatever that means? 

PERKINS:  Yes, whatever that means. 

Well, first off, this is not a partnership between the president and the Senate.  It is not co-equal.  The president nominates and then the Senate gives their advice and consent.  The idea that the president has to sit down and confer with members of the Senate before he even makes a nomination is found nowhere in the Constitution. 

You see, why the stakes are so high in this battle is because folks on the left, like Ralph and others, realize that they have no other hope to push forward their public policy agenda but through the courts.  They have lost in the legislative branches, election after election.  They've lost in the executive branch.  And so, the only hope they have is in the courts.  And so, they want, with Edward Kennedy and Charles Schumer, to keep this liberal stranglehold on the court that is forcing these policy initiatives on the people. 

MITCHELL:  You know, is this a bonanza for both of you guys, in terms of your organizations.  The left and the right are planning to spend $18, $20 million.  This is on the scale of a presidential campaign.  This is a way to get money for your organization and to mobilize your own bases, no matter what the outcome is. 

NEAS:  Andrea, we have not talked about money yet.  We hope there won't be a fight.  We don't want a fight.  If the president picks a fight, obviously, we're going to respond and strongly oppose...

MITCHELL:  Would you filibuster a Supreme Court nominee?

NEAS:  I don't think it is even ripe to even talk about a filibuster. 

We don't have a nominee.  We hope there's not a fight.  We hope that the president will listen to the gang of 14, all the swing senators on the Republican side and on the Democratic side.  They said, let's consult.  Let's work out a bipartisan consensus candidate.  I hope that happens.

PERKINS:  What about the American people?

NEAS:  If that happens, then there doesn't have to be money spent by either side.  If there is a fight, of course we're going to raise money, so that we can get our message out to the American people, to the Senate, to the press, to the president. 

And we can never match Tony Perkins' deep pockets and the pockets of they radical religious right and the economic right.  But I think we can raise enough money to get our message out.  And we'll have the people power and a great team working on it. 

MITCHELL:  Well, you can guys can poor-mouth, but the first ads went up within an hour of the announcement of O'Connor's resignation or retirement. 

Mr. Perkins, what about the amount of money that is going to be spent in this thing? 

PERKINS:  Well, I think there will be a lot of money spent, because the court has made itself the arbitrator or the decision maker for everything.

They have become the super-legislature.  And that, of course, brings all of the these issues into focus and the forefront.  And people realize that, when you have 5-4 decisions, as we've had on so many important issues, about the government snatching private property, you've got them coming down against the Ten Commandments just in the last two weeks. 

And so, people understand how important it is.  And whatever resources well, we will obviously bring to this, because so many of the issues we care about are decided by the courts, where it shouldn't be.  It should be decided by the legislative branch. 

But what we have, more than the money, are the constituents, the grassroots network across this country who really connect the dots.  They get it.  They understand what is at stake.  They are energized. 

They will be engaged in this process. 

MITCHELL:  OK.

We'll be right back with Tony Perkins and Ralph Neas.

And when we return, we'll also look back at some of the more bitter battles over Supreme Court nominations in the past.

You're watching HARDBALL, only on MSNBC.  

(COMMERCIAL BREAK)

MITCHELL:  Coming up, as both sides get ready for battle, we'll look back on other fights over Supreme Court nominees—when HARDBALL returns.

(COMMERCIAL BREAK)

(NEWS BREAK)

MITCHELL:  Welcome back to HARDBALL.  I'm Andrea Mitchell, in for Chris Matthews. 

Well, it's been no holiday here in Washington, where interest groups are gearing up for what looks like a nasty fight over the replacement for Supreme Court Justice Sandra Day O'Connor.  Throughout our nation's history, Supreme Court confirmation battles have often been contentious. 

The timing of this vacancy and O'Connor's pivotal role on the court could make it an epic battle. 

HARDBALL correspondent David Shuster reports. 

(BEGIN VIDEOTAPE)

DAVID SHUSTER, NBC CORRESPONDENT (voice-over):  It's been 11 years since the Supreme Court last had a vacancy...

UNIDENTIFIED MALE:  From that decision in that case.

SHUSTER:  ... and 14 years since the controversial hearings for Clarence Thomas. 

CLARENCE THOMAS, SUPREME COURT JUSTICE NOMINEE:  This is a circus.  It's a national disgrace.  And, from my standpoint, as a black American, as far as I'm concerned, it is a high-tech lynching. 

SHUSTER:  But as brutal as that hearing was, the political stakes in Washington have become even greater.  And the battles over the last decade have intensified.  On the heel of President Clinton's impeachment, there have been two straight divisive and nasty presidential campaigns. 

(BEGIN VIDEO CLIP, AD)

NARRATOR:  John Kerry and his liberal allies, are they a risk we can afford to take today? 

(END VIDEO CLIP)

SHUSTER:  And today, Republicans and Democrats are preparing for what could be an epic Supreme Court confirmation battle. 

But, throughout history, they have rarely been easy.  In fact, one-third of all Supreme Court nominees have been rejected.  By contrast, the Senate has stopped only 5 percent of all Cabinet nominations.  Even the founder of our country, George Washington, saw one of his Supreme Court nominees blocked.  John Rutledge, a delegate to the Continental Congress, was nominated by Washington to be chief justice.  But rumors that Rutledge had a mental illness caused the Senate to reject him. 

One of the biggest fights over the Supreme Court came during Franklin Roosevelt's administration.  In 1936, he won reelection by 10 million votes and Democrats won more than three-fourths of the seats in Congress.  But Roosevelt's New Deal programs were repeatedly being challenged by the Supreme Court.  So, Roosevelt tried to expand the court from nine justices to 15. 

But even New Deal proponents fought the plan, a plan which incurred some of the sharpest criticism of Roosevelt's four-term presidency.  FDR was also highly criticized at first for nominating Felix Frankfurter.  Senators were convinced Frankfurter was a communist.  Frankfurter launched  a memorable and successful personal defense and then served on the court for 30 years. 

One of the most embarrassing nomination episodes came during Richard Nixon's presidency.  In 1970, he nominated Georgia Judge Harold Carswell. 

RICHARD NIXON, PRESIDENT OF THE UNITED STATES:  I believe that Judge Carswell will be approved by the Senate overwhelmingly.  I think he will make a fine judge. 

SHUSTER:  But reporters uncovered a speech from when Carswell as a legislative candidate endorsed segregation and white supremacy.  Six years after the Senate rejected him, Carswell pleaded no contest and paid a $100 fine for making homosexual advances to an undercover police officer in a Florida shopping mall bathroom. 

When George H.W. Bush nominated Clarence Thomas, the fight included electrifying allegations that Thomas was interested in pornography and had sexually harassed Anita Hill. 

ANITA HILL, FORMER CO-WORKER OF CLARENCE THOMAS:  He got up from the table at which we were working, went over to his desk to get the Coke, looked at the can and asked...

THOMAS:  No job is worth what I've been through.  No job.  No horror in my life has been so debilitating.  Confirm me if you want.  Don't confirm me if you are so led.  But let this process end.  Let me and my family regain our lives. 

SHUSTER:  Thomas was confirmed, soothing some, but not all of the bitter feelings on the right over Robert Bork.  In 1987, his nomination by Ronald Reagan turned into a slug-fest over abortion rights and Bork was defeated. 

(on camera):  Ideology will again be front and center this time around.  Conservatives want one of their own.  Democrats vow to block any extremist.  An announcement from President Bush could come as early as next week. 

I'm David Shuster for HARDBALL in Washington. 

(END VIDEOTAPE)

MITCHELL:  We're back with Ralph Neas of People For the American Way and Tony Perkins of the Family Research Council. 

Mr. Neas, all of us who were in that Russell caucus room for that weekend in October and watched that battle over Clarence Thomas would wish that this does not happen again, that this is not visited upon the American people, upon our political process.  Is there a way to avoid that if the president does live up to his campaign commitment when he told Tim Russert on 1999 on “Meet the Press” and appoints a nominee—or nominates a justice in the mold of Clarence Thomas or Antonin Scalia?

NEAS:  He can avoid a fight if he does what the Republican and Democratic senators have asked him to do.  If he sits down, as so many other presidents have, and tries to get bipartisan consultations that lead to a bipartisan consensus, we can have a unity candidate, which would be in the best interests of the party. 

Otherwise, just like David Shuster said, there have been many Supreme Court nominees rejected over the last 214 years.  It's not uncommon.  There were four rejected just between 1968 and 1970 over judicial philosophy. 

(CROSSTALK)

MITCHELL:  Mr. Perkins, given the fact that, right now, without O'Connor, in the future, there would be only one woman on the court, and certainly has never been an Hispanic, and since it is likely, sad to say, that Justice Rehnquist would be stepping down, certainly while George Bush is still president, because Justice Rehnquist's health problems, would you consider backing off and permitting the president to appoint a woman or an Hispanic, as he might want to do? 

PERKINS:  Oh, I mean, that would be fine.  I mean...

(CROSSTALK)

MITCHELL:  As long as it's—well, who would—who would be acceptable to you?  Edith Jones?  Edith Clement?

PERKINS:  We're not getting into the names.  We're talking about philosophy.

As the president himself has said, we need to focus on the judicial philosophy of the candidate and the process.  And we can avoid this if senators like Kennedy and Schumer will not attack individuals.  They really are threatening to undermine the independence of the judiciary by threatening to force these candidates to declare how they would rule on particular issues that are of concern to liberals, like abortion and same-sex marriage. 

They should not be required to do that.  It should be their philosophy as they see the role of the judiciary.  And, as long as we don't get into attacks, we can avoid the type of things that happened with Judge Bork and Clarence Thomas. 

(CROSSTALK)

MITCHELL:  Briefly, the Judiciary chairman, Arlen Specter, in a book that he wrote, said that those kind of specific questions are in fact required, that you should not be gambling on what a justice would be, that you should ask specific questions. 

PERKINS:  The way that they're approaching this is, they want to know how they would rule a particular case.  And you don't know all the facts in a case in advance. 

And judges, they do not campaign, as politicians do.  But what they're forcing the court to do is further this role of political activism.  And that is exactly the opposite of what we want to see.  We want to see a court that does not legislate from the bench, does not run on a platform of what their political philosophy is, but, rather, their judicial philosophy and the fact that they will not legislate from the bench, but they will recognize the role of the legislative and executive branches to do that. 

MITCHELL:  Clearly, the lines are drawn. 

Thank you very much, Ralph Neas and Tony Perkins.

And when we return, much more on the looming political battle over the vacancy on the Supreme Court.  Former Bush speechwriter David Frum and former top Democratic strategist Bob Shrum will be with us.

You're watching HARDBALL on MSNBC. 

(COMMERCIAL BREAK)

MITCHELL:  Welcome back to HARDBALL.

For more on the looming Supreme Court confirmation battle, we turn now to Bob Shrum, a veteran Democratic political strategist and now a senior fellow with New York University's Graduate School of Public Service, and David Frum, a former speechwriter for President Bush and now a resident fellow at the American Enterprise Institute.

Welcome, both. 

DAVID FRUM, FORMER SPEECHWRITER FOR PRESIDENT BUSH:  Thank you. 

BOB SHRUM, FORMER KERRY CAMPAIGN SENIOR ADVISER:  Glad to be here. 

(CROSSTALK)

MITCHELL:  Good to be with you.

First to you, David Frum. 

Is this a situation where President Bush, knowing that he will most likely have another opportunity to name a Supreme Court justice, could go to his—an Hispanic attorney general, could make political points, and also do something that he clearly wants to do, the legacy of being the president to appoint the first Hispanic Supreme Court justice?

FRUM:  I'm sure he would love to be the—to appoint the first Hispanic Supreme Court justice.  But I think it's really quite unlikely that he would choose Gonzales, and not for the reasons that people have been talking about earlier, but for this point.

One of the things that this administration has been very concerned about, especially since 9/11, is restoring executive power, that they see the executive powers worn away in the 1970s and '80s, and they want to bring it back.  And that's going to come up in a lot of war issues.

Well, Al Gonzales wrote the memos.  He was White House counsel and then attorney general.  He can't rule on his own memos.  He will be recusing himself.  So, at exactly—exactly the vote you want him to give, he can't give.  So, I don't think the president is going to pick him. 

MITCHELL:  Bob Shrum, what about the Kennedy approach in interviews over the weekend and what—some of the other warnings from Democrats, that they would filibuster if necessary, if the president does not consult them to the point of naming someone that they like?  They don't have veto power over this.  They—they—they can't tell the president whom he should appoint.  They only have 44 votes. 

SHRUM:  No.  But they have the right to advise and consent.  They don't have to automatically consent.

I think that we ought to face that there's a really big issue at stake here.  It is, as Robert Bork said himself said in the past few days, perfectly legitimate to ask someone who is nominated for the Supreme Court, if they agree with Brown v. Board of Education.  If you think Roe v. Wade represents a fundamental right and you disagree with the right wing that it is fundamentally wrong, then obviously it is fair to ask somebody that question.  And I think that's what Senator Kennedy and Senator Schumer were saying. 

MITCHELL:  Is there a down side for Democrats in filibustering a Supreme Court nominee?  Do they appear too obstructionist?  Do they risk political damage to the party? 

SHRUM:  Well, you know, I think the political downsides here go in both directions.

Someday, the right wing may get what it wants.  It may get a Supreme Court that overturns Roe v. Wade.  And the next presidential election I think will turn very heavily on that.  And I think the Republicans would pay a big price for it.  I mean, in—in—when the first President Bush appointed David Souter, everybody says, oh, he got a big surprise. 

I don't think he got a surprise at all.  I think he knew he was heading into the 1992 election and he did not want Roe v. Wade to be a central issue, even though Pat Buchanan and the Republican right did exactly that at the Houston convention. 

MITCHELL:  Of course, Roe is now settled law by 6-3.  Its 5-4 votes have all been on parental notification, partial-birth or late-term abortions. 

David Frum, are there other issues that are more important to conservatives than Roe? 

FRUM:  Well, I think we have a looming battle over same-sex marriage.  That is very important.  I think there's a lot of unhappiness among conservatives about the recent case about property rights, where the Supreme Court dramatically expanded the circumstances under which a state can take property.

MITCHELL:  And Congress is talking about legislating to try to rectify that. 

FRUM:  Exactly. 

I think that is a—that's sort of a real fire bell to conservatives, because the Constitution says you can take private property for public uses.  But, they were—in this case, the state wanted to take private property from one private owner and give it to another private owner, not to build a highway or something like that.

So, there are property rights issues.  There are the same-sex marriage issues.  And there are going to be all of these war powers issues that are going to be very important, especially to the president. 

MITCHELL:  During a period of war and the war on terror. 

more with David Frum and Bob Shrum in just a moment.

And still ahead, should journalists go to jail to protect their sources.  As “TIME”'s Matt Cooper and “The New York Times”' Judith Miller await their fate, we'll talk to one reporter who was sentenced to house arrest for not revealing a source.

You're watching HARDBALL on MSNBC. 

(COMMERCIAL BREAK)

(NEWS BREAK)

MITCHELL:  Welcome back to HARDBALL.  I'm Andrea Mitchell, in for Chris Matthews.

And we're here with former Bush speechwriter David Frum and former Democratic strategist Bob Shrum. 

David Frum, can the president get away politically with appointing a white man to replace Sandra Day O'Connor? 

FRUM:  He sure can. 

But it will means that he will have to consider other factors.  I don't think we're—and I think there are enough women in enough high positions in this administration that anyone can question the president's commitment to female equality. 

(CROSSTALK)

MITCHELL:  Yes, but not on the Supreme Court.  It's a very special place.

FRUM:  But I think everyone understands he's going to have at least one other and maybe two other appointments.  So, he's going to have a lot of factors. 

So, even if he decides not to go with a woman and to go with someone who is a white man, he's going to want to pick somebody who in other ways can be present as a national uniter, somebody who is not seen as a party creature.  And there are a lot of people with good conservative records whom he can find who will fit that bill. 

MITCHELL:  And what about the timing? 

Bob Shrum, what would you think the timing of this is going to be?  Do you think they'll try to delay it until the end of the summer to prevent liberals, such as yourself, from having enough time to develop ammunition? 

SHRUM:  I think they can't delay until the end of the summer, because then they lose the argument, you have to get this all done in time for the beginning of the court. 

I think there's a possibility they'll delay this until the beginning of August.  And I thought the president's comments this morning were very interesting, because he seemed to me to be talking as much to the right wing as he was to anybody else, especially when he defended Attorney General Gonzales. 

By the way, I want to say that that is a very neat effort by David Frum to get him off the Gonzales hook.  But the fact of the matter is that Thurgood Marshall was solicitor-general of the United States, arguing major civil rights cases between '65, '67, went on the Supreme Court and ruled on case after case after case in the area of civil rights. 

There may be a specific case or two that could not be considered by a Justice Gonzales.  And, by the way, I don't want to sound like I'm endorsing him.  I don't know enough about him and I don't really want to hurt the guy.  But he could rule on almost all of these cases.

MITCHELL:  Yes, your endorsement, Shrum, of Alberto Gonzales would be the kiss of death. 

(LAUGHTER)

SHRUM:  I don't know, Andrea.  I think he might have a good enough relationship with the president that he could probably overcome it. 

MITCHELL:  Even that?

(LAUGHTER)

FRUM:  I think it is a serious point and not just a neat one. 

The president—the war on terror threw up, has created a lot of unprecedented legal questions.  And we've had a lot of them come before the court.  How do you treat these detainees?  What if they're an American citizen?  What if they're an American citizen captured on a foreign battlefield?  And those have been—I think, if you were to look back over the last four years and say, inside the White House, what were the decisions they were most unhappy about, that affect the—made it most difficult for them to do their job, it was those kinds of decisions.  And that also is going to be very much on the president's mind. 

MITCHELL:  Bob.

SHRUM:  But, David, Robert Jackson, when he was attorney general of the United States under Franklin Roosevelt, was giving all of exactly that same kind of advice.  And then he went on the Supreme Court.  And he ruled on cases that related directly to national security, internal security, and issues like that raised during World War II. 

FRUM:  Well...

(CROSSTALK)

FRUM:  I just want to know, is Bob Shrum promising that, should it be Gonzales and should it come under—handle those cases and should he rule in favor of the administration, no complaining?  Is that a deal? 

SHRUM:  I think—no, but listen.  The recusal rules, as you know, are set up so the justice makes his own decision. 

I mean, look, Antonin Scalia refused to recuse himself after he went on this hunting trip with Dick Cheney and he ruled on whether or not Cheney's energy task force could keep its information secret. 

MITCHELL:  I was waiting to see how long it would take before you brought it up, Bob.

(LAUGHTER)

(CROSSTALK)

MITCHELL:  David, bottom line, in the few seconds we have left, what is the likelihood that there isn't going to be an all-out war this summer? 

FRUM:  I think that it's going to a be huge war. 

Will it go all the way to a filibuster?  I think, when it comes to that, Democrats will flinch.  It would be unprecedented.  They didn't filibuster Clarence Thomas.  If it had occurred to anybody that this was a permissible tactic, they would have filibustered him.  I think this is such a new idea.

(CROSSTALK)

MITCHELL:  ... the Internet era with blogs and all, things have changed.

Bob Shrum, in just a couple of seconds, are you about to flinch? 

SHRUM:  Well, no.

Look, Republicans filibustered Abe Fortas in 1968, when Lyndon Johnson tried to move him up from associate justice to chief justice.  And that began this whole process.  I don't think Democrats should flinch on this.  You can't have a one-way litmus test. 

MITCHELL:  OK.

SHRUM:  If we're going to have a litmus test from the administration, I think Democrats ought to ask these questions. 

MITCHELL:  All right.  To be continued.

Thank you, David Frum and Bob Shrum.

When we return, should journalists go to jail to protect their sources?  Investigative reporter Jim Taricani will join us.  He was placed under house arrest for not revealing a source.

You're watching HARDBALL, only on MSNBC.  

(COMMERCIAL BREAK)

MITCHELL:  Coming up, is jail time inevitable for two reporters who will not reveal confidential sources in the investigation into who leaked the name of a CIA operative?

HARDBALL returns after this.

(COMMERCIAL BREAK)

(NEWS BREAK)

MITCHELL:  Welcome back to HARDBALL.  I'm Andrea Mitchell, sitting in for Chris Matthews. 

Tomorrow, a federal judge will decide if two reporters will go to jail because they will not name confidential sources.  Judith Miller of “The New York Times” and Matt Cooper of “TIME” magazine have refused to testify in a grand jury investigation into who leaked the name of the CIA operative. 

Investigative reporter Jim Taricani of NBC affiliate WJAR in Providence, Rhode Island, knows a lot about how they must feel right now.  He spent six months under house arrest for refusing to name the source who gave him FBI surveillance tapes of an aide to the Providence mayor taking a bribe.

Jim, welcome.

JIM TARICANI, WJAR REPORTER:  Thanks.

MITCHELL:  And we should point out that the aide was convicted based... 

TARICANI:  Sure. 

MITCHELL:  Based on...

TARICANI:  Everyone was in this case.  And the case was completely adjudicated.  Totally over.  My source had ended up coming forward after I was found guilty.  And I still got a six-month sentence.  I only served 121 days.  The judge let me out early. 

MITCHELL:  Explain to our viewers, people who are not journalists, because this sounds like a lot of inside baseball.

TARICANI:  Right. 

MITCHELL:  Why they should care about a reporter's right to not disclose a confidential source. 

TARICANI:  Well, they should care, Andrea, because—because we are here for them.  And when we can't do our jobs totally and freely—and sometimes that entails using confidential sources, as you know—it is not often, but sometimes we do—the public loses. 

We're here to give the public the information they need as citizens.  And when we can't do that, it is the public that loses. 

MITCHELL:  Let me play devil's advocate.  You say not often, but sometimes we use confidential sources. 

The criticism, even self-criticism of journalists, is that we use confidential sources all too often, not investigative reporters, such as yourself, but Washington reporters, out of laziness or going along with the game, taking anonymous quotes from background briefers who are very obviously top officials, including Cabinet members. 

TARICANI:  Sure.  I agree with that.

And I think it is up to us, because we're not regulated and we don't have something like an American Bar Association looking at us, we have to regulate ourselves.  And I think that is a problem.  And I think we do have to do our best to do a better job in the use of anonymous sources and use them only when we can't get something on the record and only if the story is important enough for the public to know about. 

MITCHELL:  Give me an example of how important it is.  What kind of story would the public need to know about where you cannot go and name the source?

TARICANI:  Well, sure, anything, especially in the area of public corruption, whether it's state government, local government, federal government.

Oftentimes, people possess information.  They're either witnesses of or have important information pertaining to wrongdoing.  And it is the people's government.  And these people fear for their jobs.  In extreme cases, sometimes, they for their lives.  They don't want to go to law enforcement because they don't want to get involved in something that becomes public.  So, who do they call?  They call the press.  They call a reporter. 

They may know the reporter.  They may not know the reporter.  But those are important stories.  That's what we're here for.  We are supposed to be the watchdog for the people.  We can't be much of a watchdog if we can't do our job. 

MITCHELL:  Now, we've become used to Martha Stewart under house arrest, but with her hundreds of acres and roaming around in her ankle bracelet.

TARICANI:  Right. 

MITCHELL:  What was it like for you to be under house arrest?  What were your circumstances? 

TARICANI:  Well...

MITCHELL:  I suspect you don't have the resources of Martha Stewart. 

TARICANI:  No, I don't.  And I do not have the Martha Stewart version of house arrest.  I can assure you of that.

My judge in my case, Ernest Torres, a federal judge, ordered my Internet disconnected.  I was literally confined to the inside of my house.  I could not leave my house.  I could only get visitors from 2:00 to 4:00 in the afternoon, 6:00 to 8:00 in the evening. 

I was monitored with an ankle bracelet.  My probation officer came by unannounced, was drug-tested once a week.  And it was psychologically draining.  It was not fun.  I didn't go to social events.  I didn't get to go anywhere.  I was allowed to shovel my sidewalk twice because of heavy snow. 

MITCHELL:  And, in fact, you were under house arrest because of a heart condition, a medical condition.

TARICANI:  Because I'm a heart transplant recipient.  And the judge made clear when he sentenced me that, had it not been for that, I would have gone to federal prison. 

MITCHELL:  So, here you have a special prosecutor telling federal court today that it is really up to the judge, but arguing in fact in favor of Matt Cooper from “TIME” magazine going to jail.  That would be D.C. jail. 

TARICANI:  I think that is so over the top, especially in Matt Cooper's case, where his boss, or his organization, turned over the material that the special prosecutor wanted.  Now, what more does he want?  Blood?  I don't get it.

MITCHELL:  And Judith Miller's case, she never even wrote the story, never published. 

(CROSSTALK)

TARICANI:  Right. 

MITCHELL:  “The New York Times”

(CROSSTALK)

TARICANI:  And then I just read a wire account where the prosecutor seemed to infer that by sending these reporters to jail, it might act as an incentive for them to give up their sources.  I've gotten to know Judy a little bit over the previous weeks.  We've done some panels together. 

And I think—I don't think she's going to give up a source.  And when her sentence is over, it's over and the special prosecutor still doesn't get what he wants.  So, I don't understand it.

MITCHELL:  And the sentence would most likely be over four months from now, when the grand jury expires, although grand juries can be renewed and this can become an extended... 

TARICANI:  Yes.  Right. 

MITCHELL:  Bottom line, people should care why? 

TARICANI:  People should care because they have to—the people in this country have to decide what kind of a press they want.

And if they want a press that is going to represent them, that is going to watch out for what their government is doing, they need to give us the tools to do the job.  That's why 31 states recognize the need for a privilege for reporters, so we could do that, so we—when we used anonymous sources, we could guarantee confidentially.

The federal government hasn't done that.  There's a reporter shield law, as you know, in Congress now being debated.  It's picking up some bipartisan support.  We need that.  And if the citizens want a good press, a good free press to represent them, they need to call their representatives and tell them that. 

MITCHELL:  And we should point out that your station is part of the NBC family, that NBC management, all the way up to the top, stood up for you and helped you get through this financially as well.

TARICANI:  They've been a reporter's dream from the top on down, Bob Wright, Neal Shapiro, to my general manager at WJAR in Providence.  It's been a wonderful experience in that regard, paid a lot of legal bills, moral support.  It's just been great. 

MITCHELL:  Well, thanks for being here and thanks for everything that you've done. 

TARICANI:  Sure. 

MITCHELL:  Appreciate it very much. 

And when we return, should a reporter ever reveal the identity of a confidential source?  We'll talk “Boston Globe” columnist Tom Oliphant and to the president of the Radio Television News Directors Association Barbara Cochran.

This is HARDBALL, only on MSNBC. 

(COMMERCIAL BREAK)

MITCHELL:  Welcome back to HARDBALL.  I'm Andrea Mitchell, sitting in for Chris Matthews. 

Tomorrow, reporters from “TIME” magazine and “The New York Times” may get jail time, as we've been discussing, for refusing to reveal a source.  What will that mean for journalism? 

Barbara Cochran is president of the Radio Television News Directors Association.  Tom Oliphant is a columnist with “The Boston Globe” and author of the new book “Praying for Gil Hodges.” 

And a terrific book, it is.

TOM OLIPHANT, “THE BOSTON GLOBE”:  Thank you. 

MITCHELL:  And we will talk about that in just a moment. 

Barbara, first to you. 

The prosecutor, Patrick Fitzgerald, was back in court today and has taken a very hard line against these two reporters, this after “TIME” magazine has, dare we say, caved in and provided the source notes.  And “The New York Times” is standing firm behind Judy Miller.  So, what's going on here? 

BARBARA COCHRAN, PRESIDENT, RADIO TELEVISION NEWS DIRECTORS

ASSOCIATION:  Well, he said that he still requires testimony from Matt Cooper before the grand jury, which a lot of people thought wouldn't be needed if “TIME” turn over his notes.  And he still wants Judy Miller to testify as well. 

I think what was even more frightening was that he insisted that they need to serve time in a jail.  Both of them had filed asking if they could be confined at home.  And he has said instead, no, they need to do hard time. 

MITCHELL:  Tom, how do you figure out what is Patrick Fitzgerald up to? 

OLIPHANT:  Well, I'm hoping that, tomorrow, he might be asked a couple of questions by the judge in the case that could shed a little bit more light than we've had really in the last two years. 

One of them, it is OK—I don't particularly care that he files the paperwork today about hard time.  But the judge might ask tomorrow, how much?  And that's the first moment where I think he has to justify a sentence of more than one day in order not to appear simply vindictive because he didn't get what he wanted. 

And there's another thing for the judge that ought to be interesting during the court appearance.  And that is, if the attorneys for one of the reporters ask, what is the crime?  Because, on the public record, there is no indication that a crime was committed.  And the idea that you would ship journalists to jail at such—with all that that implies, without a clear evidence or a clear statement that a crime had been committed and if so what it was—so, there's still a chance. 

What I regret is that, for two years, there's been this grand constitutional argument that in fact was settle 30 years ago.  And I hadn't heard enough from either “TIME” or “The New York Times” about a real good tough strategy for keeping these good people out of jail. 

MITCHELL:  And, Barbara, some Justice Department officials I think have already said that, if it were up to them, if there had not been a special prosecutor in this case, that the attorney general and his team, who had to recuse themselves, would not have gone after the reporter's notes because they didn't think it met the test. 

COCHRAN:  That's right.  And that's the irony of this, is that the Justice Department has guidelines that would have prevented any of this from happening. 

But when a special prosecutor is appointed, that makes it different, because the special prosecutor doesn't have to abide by the Department of Justice guidelines. 

MITCHELL:  Because the Department of Justice is reluctant to go after reporters.

COCHRAN:  Exactly. 

MITCHELL:  Because it does raise constitutional issues. 

COCHRAN:  Exactly. 

And the—that's one of the reasons that so many of us are supporting a federal shield law which is currently in Congress.  It's called the Free Flow of Information Act.  And we believe that, if this could be enacted, that it would straighten out all of the discrepancies between states, where there are shield laws in 31 states, and what goes on at the federal level. 

And we believe that something like this, if it had been in place, could have protected Matt and Judy. 

MITCHELL:  It has got some support in the House.  I don't know about the Senate, though.

COCHRAN:  We're working hard in the Senate.  We've got some significant support there from significant Republicans.  Senator Lugar is a co-author, as well as some Democrats like Pat Leahy.

OLIPHANT:  You know, what's so interesting about Barbara's point, Andrea, is that these rules in the Justice Department existed specifically to prevent situations like this, where you have a prosecutor who may be getting out of control.

MITCHELL:  Right. 

OLIPHANT:  Who has such a zeal for his case, that he forgets the broader context. 

MITCHELL:  The larger issues.

OLIPHANT:  I'm the guinea pig for those rules.  I had a criminal case back when Nixon was president. 

And, in dismissing it, Elliot Richardson set down these rules, that the attorney general himself has to sign off on a subpoena, much less a criminal charge.  And the reason was to keep the national interests in mind and not just some prosecutor's.

MITCHELL:  Speaking of national interests and rules, let's talk baseball. 

(LAUGHTER)

MITCHELL:  Because “Praying for Gil Hodges” is about the 1955 Dodgers and its larger—in a larger context, it's about your world.  And I have to say right out front, I was raised in the Bronx. 

OLIPHANT:  It's not a crime.

MITCHELL:  You may be a Dodger man, but I was raised in the shadow of Yankee Stadium.  You're talking about the 1955 World Series. 

OLIPHANT:  This was a special time in America, in New York, as you well know.  A lot of people in baseball have said this seventh game of that World Series is on every short list of the greatest games ever played. 

And, you know, it was.  It really was.  This is when Jackie Robinson finally got his ring.  This is when a decade of disappointment ended.  And the Dodgers were a metaphor for something bigger in the country, the underdog vs. the Roman Empire and, above all, an integrated baseball team, when the rest of America was segregated. 

MITCHELL:  Well, I'm with you on the integrated baseball team.  But I have to tell you, it was more than a decade.  It was 15 years. 

OLIPHANT:  Yes. 

MITCHELL:  The Yankees and the Dodgers played.  And the Yankees won six out of the seven from '41 through... 

(CROSSTALK)

COCHRAN:  Forty-one, '47, '49, '52, and '53. 

MITCHELL:  And '56. 

COCHRAN:  After this one. 

And then, on top of that, the Dodgers lost the National League pennant on the last day of the season three times.  So, you want to talk about hell, that's what people went through. 

(LAUGHTER)

MITCHELL:  I want to talk about that, but let's talk about the 1941 series, when the Dodgers were ahead 4-3.  And what happened?  What happened with Mickey Owen?

COCHRAN:  Well, the third strike, that would have been the last out, was dropped by the catcher.  And my mother told me it was the first time she had ever cried in front of people who weren't family. 

(LAUGHTER)

MITCHELL:  And good reason.  I hate to tell you what was going on in our family probably back then in 1941, before I was born.

OLIPHANT:  And we look forward to your book in the fall. 

MITCHELL:  Thank you so much for that plug. 

Thank you, Tom Oliphant.  The book is called “Praying for Gil Hodges.” 

And thank you, Barbara Cochran.

Join us tomorrow night at 7:00 Eastern for more HARDBALL.

And right now, it's time for “COUNTDOWN WITH KEITH OLBERMANN.” 

END

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