updated 7/6/2005 11:26:21 AM ET 2005-07-06T15:26:21

Guest: Helgi Walker, Joe Tacopina, Rachel Maddow, Jan Larue, Max Kellerman

TUCKER CARLSON, HOST (voice-over):  O'Connor hangs up her robe.  Which way will justice swing now? 

Plus, the supreme decision.  Who is next on the bench? 

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  I take this responsibility seriously. 

CARLSON:  And is this a new call to arms for pro-choice activists? 

UNIDENTIFIED FEMALES:  Choice, dignity. 

CARLSON:  Also, the search for Natalie Holloway, why it may soon be a case of murder. 

Plus, Brooke's answer to tomfoolery.


TOM CRUISE, ACTOR:  What do you mean by that? 


CARLSON:  Yes, I've got a problem with authority.  I'll admit that, in a cheery way.  Not everyone likes the bow tie, I'll be honest.  But I like the bow tie.  I respect people who believe something, even if I don't agree with them.  It's my opinion, wrong as it may be. 


CARLSON:  Joining me to break it all down in his first appearance on THE SITUATION, renowned criminal defense attorney Joe Tacopina and, from Air America Radio, a woman who needs no counsel defending herself, Rachel Maddow.


CARLSON:  Thank you both.



CARLSON:  First up, the historic situation on the Supreme Court today.  After 24 years of service, Sandra Day O'Connor retired from the bench this morning in a one-paragraph letter to President Bush. 

Most retirement speculation had centered on O'Connor's law school classmate William Rehnquist.  But Bill Kristol got it right, among very few others last week, when he predicted that she would be the first.  This opens the holiday weekend with the first opening on the court in 11 years. 

I have to say, for the record, Bob Novak also got it right.  But very few people did.

MADDOW:  Yes. 

CARLSON:  A million things to say about this.  I guess the sort of guiding thought I have in mind as we go forward into this very long, multi-month process of picking a new justice—it's going to be brutal—is that that's what elections are about.

Going into this last election in 2004, Bush was pretty clear about the kind of Supreme Court justice he would appoint if he got the chance, if he were elected.  He said, I want someone like Clarence Thomas or Scalia.

MADDOW:  Right. 

CARLSON:  Conservative.  People knew.  The majority voted for him. He should have the right to appoint someone he likes, no?

MADDOW:  Well, he has the right to appoint whoever he likes.  The Senate also has a right to advise and consent.

I mean, the fact is that—first of all, I think that, immediately upon hearing that O'Connor resigned, we immediately started talking about who was going to replace her.  I do think it's appropriate to take a minute to acknowledge how amazing she has been as a person, as a...


CARLSON:  And we shall.

MADDOW:  And we shall.

CARLSON:  Or at least acknowledge her career, anyway.  I don't know how amazing...


MADDOW:  And, as a liberal and as a person who didn't always agree with her—and she's significantly to the right of me—I think that the admiration that I have for her is something that speaks to how I feel about who is going to replace her.

I mean, I think that coming up with a consensus candidate would be good for the country.  I don't know if Bush will do that, though.

TACOPINA:  Yes, I doubt he'll do that.

But, you know, as a lawyer, as someone who appreciates the law, I'd like to see a judge who was pure, a purist, someone who actually followed the law regardless of party lines.  And, you know, someone like Scalia, who I admire, to me, he's one of the—I mean, the cranium is just oozing out of his head. 


TACOPINA:  But, but, he's—clearly, clearly has an agenda.  When you're arguing before the Supreme Court, you're not looking at Scalia.  If you're trying to win a less than conservative position, you're not looking at Scalia. 

MADDOW:  Yes. 

TACOPINA:  You lost him.  Sandra Day O'Connor was someone that you looked at as someone who was open to persuasion, someone who you could maybe win the vote.  Lawyers, when they argue before the Supreme Court, prepared their arguments—if she was on the panel, prepared their arguments basically trying to persuade O'Connor. 

CARLSON:  And yet—and yet there was a pattern to her decisions, I think a pretty clear pattern to her decisions. 


CARLSON:  I mean, it wasn't like each, each time you came before her, it as up for grabs.  I mean, you could see, on certain issues, on social issues, for instance...

MADDOW:  Right. 

CARLSON:  She was aligned with one side of the court. 

MADDOW:  Well, but also, I think that she was open to persuasion.

CARLSON:  Right. 

MADDOW:  I think that she was an open-minded conservative, and that made her a target for—for every attorney. 

TACOPINA:  Now everyone hates her, of course.


CARLSON:  O'Connor was of course the first woman appointed to the Supreme Court, nominated by Ronald Reagan, approved by a 99-0 vote in the Senate in 1981. 

She became to the court what Florida and Ohio are to national elections, the swing vote.  By her own admission she was—quote—“open to persuasion.”

And yet, you know, if you're going to be honest about her legacy, you would have to admit that, on the hot issues of the day, the ones that we debate on television, that people read about in newspapers every day, she was left.  I mean, she cast the deciding vote in 1992 in Planned Parenthood vs. Casey, a decision that could have overturned Roe vs. Wade. 

In 2003, she kept affirmative action at the University of Michigan.  That was her vote that did that.  And, in 2000, she struck down the ban on partial-birth—partial-birth abortion.  That's not a moderate record.  That's a strong—that's a liberal record.  There's no question about it. 

MADDOW:  I disagree.  I disagree.  I think that's only affirmative a liberal record if you consider affirmative action and abortion to be the main issues affecting the court.

CARLSON:  Well, liberals—liberals consider them to be central issues on the Supreme Court. 

MADDOW:  What do you make of the fact that O'Connor has voted with Rehnquist 80 percent of the time?  I mean, that to me say that she's not—she has voted with Stevens the least of any justice...


MADDOW:  ... percent of the time. 

CARLSON:  That's right. 


CARLSON:  But that's not an accurate measure taken by itself, because so many questions actually don't affect the daily lives of Americans in the way that the three issues I just named do. 

MADDOW:  But we've made abortion and affirmative action these partisan litmus tests, where these aren't the kinds of things that come up before the court every day.  Those are actually anomalous situations.  They're just the things that have been politicizing...


CARLSON:  But don't  you think they matter?  I mean, they matter disproportionate to their—to the size of the cases.

MADDOW:  In politics.


TACOPINA:  Rachel actually was right.  It's the 80 percent with Rehnquist.  I mean, you can't really say she's moderate or in the middle. 

But, on the three most important issues—look, I listened today. 

She was demonized on right-wing radio. 

MADDOW:  Oh, yes.

TACOPINA:  I mean, demonized, like, as if she was the worst thing that ever hit the Supreme Court. 

And she repeatedly tempered conservative decisions on abortion, on affirmative action and—and on—on things that—that conservatives are strong about and really care most about.  And, most importantly, one thing you failed to mention before, Tucker, is, she ruled against the current administration regarding the terrorism policies most recently.

CARLSON:  Well, that's right.

MADDOW:  That's right. 

TACOPINA:  And that was something that, you know...

MADDOW:  Huge ruling. 

TACOPINA:  Huge ruling.

MADDOW:  Huge ruling. 

CARLSON:  I think she was probably right on that one. 

TACOPINA:  She was right on that one. 


CARLSON:  And now comes the fight, the fractious situation in Congress over the next Supreme Court nominee.  By noon today, politicians and interest groups on both sides of the well-established battle lines were reiterating and re-entrenching, as the biggest battle of the Bush administration begins. 

Among them was Senator Ted Kennedy.  Here was his opening salvo today. 


SEN. EDWARD KENNEDY (D), MASSACHUSETTS:  If the president abuses his power and nominates someone who threatens to roll back the rights and freedoms of the American people, then the American people will insist that we oppose that nominee.  And we intend to do so. 


CARLSON:  Rachel, you know as well as I what he's really talking about is abortion.  Democrats all came out today and say, we love Sandra Day O'Connor.  We want a justice just like her. 

TACOPINA:  Right. 

CARLSON:  They're thinking about that—those 80 percent of cases that Rachel correctly pointed out in which she sided with Rehnquist.  They're thinking the 20 percent, the abortion cases.  That's what they care about?


CARLSON:  And, to be fair, that's what the right cares about.  But it's about abortion, don't you think? 


And I just don't think there's any way this president will be nominating to this—to this bench a—a—a potential jurist who is going to side with the Democrats on that or side with—with pro-choice.  I just don't see that happening. 

I think what he may do is initially put forth a rabid conservative, someone who is so far off the charts.  And then, realizing that person is probably going to have to get pulled back and then put a regular conservative and, in comparison, will look like a moderate conservative.  But I don't see—I don't see a judge getting up there looking favorably towards abortion. 


MADDOW:  See, I see him floating it the opposite way.  I think the fact that Gonzales' name has been thrown around so much is the opening gambit.  They're putting Alberto Gonzales out there as a possibility as somebody who may not be such an absolutist on abortion. 

And then, after floating his name, they'll let the right wing attack him for a long time.  They'll take his name out of contention.  And then they will put forward a very right-wing nominee for—for—for O'Connor.  That's what I think... 


CARLSON:  But, but, I mean, notice—notice that, I mean, Gonzales is actually pretty conservative on a lot of—a lot of things. 

MADDOW:  That's right. 

CARLSON:  He's just not conservative on abortion. 


MADDOW:  Well, he's unknown—he's unknown on abortion. 

CARLSON:  No, he's actually known.  He was on the Texas Supreme Court and he opposed a parental notification law there.  So, actually, we do know something about what he thinks about abortion.

MADDOW:  Right. 

CARLSON:  He thinks Roe v. Wade is—you know, should remain the law of the land. 

So, we're reducing it, even in this conversation, down to a single issue. 

MADDOW:  Yes. 

CARLSON:  And I think, as we go forward, we should just keep in mind that, for all the euphemisms people use, they're really taking about this 30-year-odd-old Supreme case, Roe v. Wade. 

MADDOW:  Right. 

And I think the other thing to keep in mind as this moves forward is that, over 20 percent of the nominees that have ever been put forward for the Supreme Court haven't made it onto the court. 

TACOPINA:  Right. 

MADDOW:  And of those 20 percent, of those 24 people that have never -

·         have been rejected, more than half of them never got a vote.  I mean, there's a history of Supreme Court nominees being blocked in the Senate. 

CARLSON:  Right. 

MADDOW:  It's not an anomalous thing.  And it could happen. 

CARLSON:  If I can just say, the one talking point you're going to hear in the coming months that is a lie—and you'll hear it from the pro-choice side—is that we're one vote away from overturning Roe v. Wade.  If only.

In fact, there are only three justices now on the court who voted to overturn, in effect, overturn Roe v. Wade.

TACOPINA:  That's right. 

CARLSON:  Scalia, Thomas and Rehnquist.  And Rehnquist may be off soon.  So, we're actually a couple votes away.

TACOPINA:  Right. 

CARLSON:  Just to keep it in perspective.

So, who will it be?  President Bush's first nominee could be a person unknown to all of us, except for a small group of judiciary enthusiasts who pay attention to these things, or it could be Attorney General Alberto Gonzales, a longtime friend and associate of the president's.

The possibility of Gonzales has already raised red flags among partisans on both sides of the aisle. 

And it has.  I mean, conservatives are—as Rachel pointed out, are agitating against Alberto Gonzales. 

MADDOW:  Yes. 

CARLSON:  Do you think the...


CARLSON:  I mean, what do you think the likelihood is that they're going to float him out there for nominee? 


TACOPINA:  I think very little.  He's just begun his tenure as attorney general, a very, very important position in this administration, one of the—obviously, the leader of that—of that Cabinet. 

And I think he has a lot of work to do, especially with all that's going on with—with the terrorism detainees and so on and so forth.  I just—in the middle of this war, to, all of a sudden change roles, it's not as if he's the undersecretary of agriculture or something.  I mean, he's the attorney general.  And to just pluck him up and throw him into a nomination process and then only to reestablish an attorney general in the middle of an administration I don't think is something Bush is going to do.  I just don't.

MADDOW:  See, I don't think—I don't think they'd hesitate to pluck him out of nowhere, to pluck him out of attorney—of being attorney general after such a short time. 

I mean, they have—they picked—they picked Alberto Gonzales to get involved in state government after he was a real estate attorney in Houston.  They don't necessarily care about where people are coming from.  They care about what they're like as a candidate.  But I don't think they're going to put Gonzales forward, because I don't think that he'll keep—keep the base happy. 


MADDOW:  And there are a number of candidates out there that would keep the base happy. 

CARLSON:  Emilio Garza is one on the 5th Circuit.

MADDOW:  Yes. 

CARLSON:  A principled guy, a principled judge, former Marine Corps captain, a guy who, in two different cases, voted against, voted to struck down Louisiana anti-abortion laws, though he himself is opposed to abortion and opposed to Roe v. Wade, truly a man of principle.

TACOPINA:  I don't...

MADDOW:  He's got a couple of troubling cases on his record, though, about a 14-year-old and a 15-year-old having sex or being raped in school that are really explosive cases.

CARLSON:  Ah, you've already done your research.  The battle has begun already. 


MADDOW:  Oh, yes.  I started doing my research in 1997.


TACOPINA:  And he's Italian.  And he's Italian.


CARLSON:  I don't think he's Italian.



CARLSON:  Well, still to come, more on the—President Bush's pivotal Supreme Court decision.  Former associate counsel to the president Helgi Walker joins me next. 

Plus, alienation seems to be the it word when it comes to Tom Cruise.  What did the Katie-Holmes-loving, Scientology-praising, “War of the Worlds” star say that forced Brooke Shields to vent in “The New York Times” this morning?  We'll tell you in just a moment. 


CARLSON:  Ahead on THE SITUATION, former council to President Bush Helgi Walker joins us to discuss Sandra Day O'Connor's sudden retirement and the future of her vacant Supreme Court seat.  That's next.


CARLSON:  Welcome back.

As Justice O'Connor exists the Supreme Court, President Bush's biggest political fight is in the court of opinion.  It begins now.  The war room is already staffed and ready to go.  What will the president's first move be? 

Joining me now is the president's former legal counselor Helgi Walker.

Thanks a lot for joining us. 

The—the president...

HELGI WALKER, FORMER COUNSEL TO PRESIDENT BUSH:  Absolutely.  Good evening, Tucker. 

CARLSON:  Thank you. 

The president, as you saw today, had very warm words for retiring Justice O'Connor.  Do you think it's likely that his nominee for the Supreme Court will share her judicial philosophy? 

WALKER:  I think the president's nominee to the court will have the philosophy that the president has said in two elections now and, in fact, reiterated this morning.  And that is a person who will faithful apply the law and not make it from the bench.

I'm not sure Justice O'Connor, who has rendered great service, by the way, to our country and on the court, is necessarily the measuring stick.  The measuring stick is what the president has repeatedly said he's going to look for in a candidate.  And, as you know, Tucker, he almost always does what he says. 

CARLSON:  Well, that sounds like the makings of a major brawl with Congress.  Tell me how it works.  Is the president going to send an emissary over to the Hill to warn members of his own party and Democrats what he's going to do and try to work out a deal ahead of time? 

WALKER:  Well, the president made clear this morning that it is his responsibility, under the Constitution to select, i.e., to nominate Justice O'Connor's replacement. 

At the same time, he said that he and his staff would continue to consult with key members of Congress in the Senate as, frankly, the White House has been doing all along on judicial nominations.  So, I don't think there's going to be a radical new plan at the White House.  I think the president is going to pick the kind of person who he thinks is the best person for the job and then will fill senators in on an—on an—on an appropriate basis. 

CARLSON:  Well, at this point, since he's not facing reelection and he doesn't have a vice president who is facing election, why should he even care what Congress thinks?  I mean, can't he just nominate whomever he likes, no matter how offensive it is, keep fighting, and if that nominee fails, nominate another one who has the same belief, and just keep going until Congress gives in?  Why wouldn't he do that? 

WALKER:  Well, the—the Senate does have a role, under the advise and consent clause of the Constitution. 

And the president has respected that role throughout his—his tenure

in the White House.  So, ignoring the Senate isn't an option and would not

·         would not be something the president would do.  But he will consult with them.  He will get their advice.  And any nominee will ultimately need the Senate's consent. 

CARLSON:  Well, do you think any nominee who has openly attacked or even questioned the Roe vs. Wade decision could get the Senate's backing? 

WALKER:  You know, I don't think the president is focused on any single issue.  He's never applied a litmus test in judicial nominations...

CARLSON:  Right. 

WALKER:  ... frankly, one way or the other in a way that would, frankly, please or anger left-wing or right-wing groups. 

CARLSON:  But—but—but you know as well as I, I mean, that many members of the Senate are—are intently focused on that one issue, abortion and on the nominees' feelings about that subject.

In hearings, you know, in the past, that's been the focus.  So, do you think, as a practical political matter, someone who has openly attacked Roe v. Wade could get the blessing of the Senate? 

WALKER:  Well, all I can do is tell you, Tucker, what the president has said, which is, there aren't litmus tests at the White House. 

And, frankly, I don't think the president believes there should be litmus tests on the Hill as well in any confirmation hearing.  So, I don't think he's going to thrown off course on the basis of a single issue.  He's going to forge ahead and do what he thinks is best for the American people. 

CARLSON:  Is he going to pick another woman?  Is that a—do you think that's going to be a criterion? 

WALKER:  You know, I've heard that chatter.

And I think that what Justice O'Connor has stood for has been a great thing for women lawyers and women and, in fact, all people all over the country.  But I think that's up to the president the kind of person, whatever their race or gender is, that he wants to pick. 

CARLSON:  Well, how much difference will it make, the new Supreme Court justice, in the balance of the court?  I mean, you hear that the departing Justice O'Connor described as, you know, the—the balance on the court.  Is that still going to be the case?  I mean, will the person he chooses change the complexion completely or no? 

WALKER:  Well, you know, I think that's a little bit of revisionist history now that some of the liberal groups have been advancing today.

Justice O'Connor, it's true, was a swing vote on some very hot social questions.  But, in the main and almost always, she really formed part of the conservative bloc at the court.  So, the notion that there are...


WALKER:  ... at the court.

CARLSON:  The conservative—wait, the conservative—well, wait a second.  Without O'Connor, Roe vs. Wade would have been overturned.  I mean, she voted against the partial-birth abortion ban. 

WALKER:  Well...

CARLSON:  How is that conservative?  I mean, those are issues that matter to conservatives.

WALKER:  Well, as—well, if you look at the statistics, though, she really voted with the conservatives a lot more often than she did not.  So, my point is that the suggestion that the balance of the court somehow hangs here is a little bit of an exaggeration. 

If you know more about the court's entire docket and more about her entire voting history, you would see that it's a little bit exaggerated. 

CARLSON:  All right.  Helgi Walker, thanks for joining us. 

WALKER:  Thank you. 

CARLSON:  Up next, three suspects in the case of missing Alabama teen Natalee Holloway may be charged with murder as soon as Monday.  One senator wants to get the FBI involved in that search.  We'll debate if that's a good idea or not next. 

Also ahead, Colorado Professor Ward Churchill is at it again, this time condoning attacks on our military.  Is it time to put an end to this nonsense or is this nonsense protected by the First Amendment? 

THE SITUATION continues after this. 


CARLSON:  Welcome back.

Time now for “Op Ed Op Ed.”  We spent the day reading every newspaper

·         almost every newspaper in the whole country, looking for interesting op-eds.  We found three, to which Rachel, Joe and I will offer our 20-second retorts. 

First up, this is not an op-ed and it's not current.  It's from 1981.  We went looking for commentary on Sandra Day O'Connor's retirement.  None was written, of course, by airtime.  So, instead, we went back to '81 and a “New York Times” piece by B. Drummond Ayres praising President Reagan's selection of Sandra Day O'Connor's as associate justice to the Supreme Court. 

Here's what he said—quote—“If her past is prologue, after her Senate confirmation, Judge O'Connor might well go on to leave even larger footprints on the sands of time.”

So, in other words, even then, even 24 years ago, “The Times” could sort of smell the liberal sensibility...


CARLSON:  ... emanating from—I'm serious.  I'm serious.  They knew right away, this woman was on their side on the issues they care about.

MADDOW:  What are you talking about? 

CARLSON:  I'm serious.  I'm totally—I'm dead serious.  And so this makes me think...


MADDOW:  They can tell her abortion position now.

CARLSON:  No, no, I'm—I believe that, actually.  I believe they can smell, like a dog smells...


CARLSON:  ... how you feel about issues they care about.  And so, I'm going to be looking when the president finally nominates somebody to “The Times” for its response.  If they're for him, I'm against him.  That's how reactionary I am. 


TACOPINA:  She's...


TACOPINA:  Hey, look, she arrived on an ideological divide at the high court.

She put—made law on important issues, abortion, the church/state relations, criminal justice.  I mean, she put her stamp on—on crucial issues.  She was amazing.  You know, she was hated by the—by the right wing conservatives.  She was hated by the liberals.  So, that means she did a good job. 

MADDOW:  When “The Times” was talking about her footprints on the sands of time, they weren't only violating the cliche rule. 

CARLSON:  They certainly were.

MADDOW:  They were.  But they weren't talking about abortion.  I mean, they were talking about the historic thing about her appointment, which is that she's a woman. 

She enrolled at Stanford at 16.

CARLSON:  That's right. 

MADDOW:  She finished Stanford law school in two years.  She couldn't get a job anywhere because she was a woman. 


TACOPINA:  Well, they offered her a secretarial job at one of those law firms. 

MADDOW:  A typing job.  That's right. 


MADDOW:  Her first—her first—literally...

TACOPINA:  It's a job.

MADDOW:  Well, fair enough.

But her first legal job, she didn't get paid, because that was the only way they could get her to—hire her as an attorney.  She had an—she's an incredible American success story.  And if you see it as just a liberal legacy, I think you're kind of missing the point. 

CARLSON:  No, I don't.

But I will just contest one thing Joe said.  I've never met—I know some right-wingers who don't like her.  I have never met a single liberal who had a mean thing to say about Sandra Day O'Connor.  I just—I'm not attacking her for being liberal.  I'm merely noting it.

TACOPINA:  But liberals are mean.  Liberals are mean. 



MADDOW:  OK.  Liberals are mean.  Right.  That's where we start. 

CARLSON:  Uh-huh.  Tell that to people who reviewed this show.



“The Denver Post” says the University of Colorado ought to show its controversial professor, Ward Churchill, the door after his latest remarks on fragging.  Keep in mind, Ward Churchill, of course, the guy who attacked the victims of 9/11 -- quote—“University of Colorado professor Ward Churchill's latest toxic remarks, this time condoning, if not encouraging attacks on military officers, are beyond outrageous.  How is that C.U. can produce Nobel Prize-winning research, but still can't find a way to get Churchill off its payroll?”

It's an excellent point.  I mean, Ward Churchill has a right to say whatever he wants.  He doesn't have a right to take taxpayer funds to say it.  He's offensive.  He's like modern art.  He's like offensive for its own sake.

I sort of like the fact, though, that he's firmly ensconced as C.U., because it exposes the fraudulence, the deep fraudulence and cowardice of the education establishment. 


CARLSON:  They hate this guy.  Even the liberals on the faculty hate him, because he's embarrassing.  But they don't have the courage to fire him.  And so his presence reminds us all how just stupid the whole enterprise is.

TACOPINA:  Because he's tenured, even a hypocrite like Churchill has the due process rights afforded to even the lowest of the low. 

CARLSON:  Well, he shouldn't.

TACOPINA:  Not that I'm saying he is.

But, you know, here's a guy who—I'm all for the First Amendment, Tucker.  I mean, I'm an attorney.  I believe in it vigorously.  But, you know, enough is enough.  You don't talk about assaulting or killing a superior officer, not in this day and is age, not at this time. 

CARLSON:  But nobody is even questioning his right to say it.  Nobody is saying, lock him up.  They're just saying why...


CARLSON:  This isn't research.  This guy is not an academic.  He's a phony.  He has lied about his past.  Can him. 

TACOPINA:  Political activist is what he is.

MADDOW:  I don't think that Churchill actually was encouraging fragging in what he said. 

But I don't defend what he said either.  It's his job to defend what he said.  I—I mean, you can hate Ward Churchill with all your heart and all your soul.  But I hate more the idea of firing people because they work at a public university and you think they have ugly ideas.  I don't think it should make a difference if they're at a public or private university. 

TACOPINA:  Well, they want to fire him because apparently he may have lied about his credentials and his background and all that stuff. 

MADDOW:  Fire him—fire him for that.  Don't fire him because you disagree with him.

CARLSON:  Well, just fire him in any case would be, I guess, my view.


CARLSON:  Well, the op-ed of the day, of course—and probably most of our viewers have read it by now—in “The New York Times,” Brooke Shields herself took to the op-ed page to denounce, attack and refute Tom Cruise and his allegations that she shouldn't be taking drugs for postpartum depression. 

Here's what she wrote—quote—“While Mr. Cruise says that Mr Lauer and I do not—quote -- 'understand the history of psychiatry,' I'm going to take a wild guess and say that Mr. Cruise has never suffered from postpartum depression.”


CARLSON:  You know, I wouldn't be so sure of that, actually.  I mean, I wouldn't—I wouldn't make any assumptions about Tom Cruise. 



TACOPINA:  ... going through a little fit of postpartum depression right now.


CARLSON:  He looks a little blue. 

This is a very—this is a P.R. disaster for Tom Cruise.  I'm this close to feeling sorry for him, OK?  I mean, he makes—some of the points he made weren't stupid.  Some of those drugs are overprescribed.  But he winds up getting in a fight with first Matt Lauer and now Brooke Shields.  That's like taking on Oprah or Nelson Mandela or something.  You're going to lose, OK?

The P.R. department of Scientology got to—better get control of this guy, fire his sister, and take back control of his career, because it's hurting him. 

TACOPINA:  Yes.  And, by the way, who cares? 


TACOPINA:  I mean, do you really—does anyone care what Tom Cruise has to say about postpartum depression? 


TACOPINA:  Or even Brooke Shields, for that matter. 

CARLSON:  A lot of people do. 


CARLSON:  That's such a good question.

TACOPINA:  That's such an indictment on like our—listen, I guess that's what it's all about.  They're celebrities.  Their word carries more weight.  It's like Bruce Springsteen telling us what—if we should or shouldn't go to war.  I'm not really into that either. 

MADDOW:  For right or wrong, though, we do pay attention to what celebrities say.  And Tom Cruise picked this fight.  And now Brooke Shields did kind of the responsible thing. 

I mean, I know more about postpartum depression now than I ever knew before this all happened.  And it turns out, it's a kind of scary thing.  But I have to say that I think the backlash has already started against everybody thinking that Tom Cruise was whacked when he started acting this way. 


MADDOW:  And people are starting to feel sorry for him already.  I still think all the stuff he said about Brooke Shields is just cuckoo for Cocoa Puffs.  I don't feel bad for him at all.  I think that he's absolutely out of bounds.

CARLSON:  Really? 

TACOPINA:  Did you see him on “The Today Show” also?


TACOPINA:  I mean, he looked a little, a little off. 

MADDOW:  I don't care about him being crazy.  I care—I think what he said about depression was cuckoo.  I think he's wrong. 

CARLSON:  Yes.  No, he—no, it's sad.  It's sad. 

MADDOW:  Yes. 

CARLSON:  Someone stop him before he goes on another show.

MADDOW:  Yes. 

CARLSON:  Though he's always welcome on this one. 


CARLSON:  Thanks. 

Coming up, Sandra Day O'Connor How disappointed anti-abortion conservatives with her decisions.  How will the Bush administration try and change judicial history and her weight?  A prominent conservative activist joins us next to explain.


CARLSON:  Welcome back.  The topic of the day, who's next on the Supreme Court?  It's shaping up to be the key battle of the Bush presidency, and conservatives are calling this an historic opportunity to get a like-minded justice on the court. 

Joining me now, Jan Larue, chief council to Concerned Women for America, the nation's largest conservative public policy women's organization. 

Jan Larue, thanks a lot for joining us. 


It's a pleasure. 

CARLSON:  Now, given the fact that Republican presidents have a history of appointing Supreme Court justices who turn out to be really liberal—I could read you a long list.  You know exactly whom I'm talking about, including Justice O'Connor, frankly, liberal on some important issues.  You must be a little concerned that President Bush is going to nominate another Souter, are you? 

LARUE:  Actually, I'm not, because the president proved to be a man of his word when you look at the excellent people that he has nominated to the lower federal courts.  And so we expect that he will keep his promise.  And the American people expect him to do it, as well. 

Because he made it very clear in both of his elections and in several speeches since then that he wants a justice who is in the likeness of Scalia and Thomas, and that's what the American people sent him back to Washington to do.  And he's going to do that, I'm confident. 

CARLSON:  But what if he doesn't?  What if, for instance, I mean, he made Alberto Gonzales the attorney general of the United States.  They're friends.  The president has only warm words about Mr. Gonzalez.  Mr.  Gonzalez is reputed to be, at least, pretty liberal on social questions. 

That's his record, any way, from Texas. 

What are you going to do if the president nominates him to the Supreme Court? 

LARUE:  I don't expect that he will.  We haven't taken a public position on Mr. Gonzales, even though we supported him for attorney general.  I think that the Department of Justice legal counsel will be reminding the president that, when Mr. Gonzalez was White House counsel and now as attorney general, he's had to give legal advice and advocate on behalf of several issues in cases that will be coming up to the Supreme Court. 

Therefore, he would have to recuse himself.  And the president doesn't want to have to be in the position of having possible 4-4 splits on key cases. 

CARLSON:  Right.  But is there a limit to your support of the president in this case?  Can you imagine a scenario in which he nominates someone you disagree with, and you say, “I'm sorry, we're not going to support this candidate, this nominee”? 

LARUE:  I don't expect him to do that, Tucker.  And I'm not trying to duck your question at all.  I think that it would be a break with reality and his promise if the president were to nominate someone other than a justice who does believe in originalism, who is in the mold of Scalia and Thomas.  The short-list that we've heard about have some excellent names on those lists...

CARLSON:  Well, throw out some of those names.  Give me a sense of candidates you'd like to see? 

LARUE:  Well, there are lots of people that are highly qualified that fit that mold.  And you know, whether you go from Michael Luttig on the Fourth, to Mike McConnell on the Tenth, to Sam Alito on the Third, Edith Jones, Emilio Garza on the Fifth, and Danny Boggs on the Sixth, John Roberts on the D.C. Circuit Court of Appeals.  And then there are two great women that have just been appointed to the circuit courts, both Priscilla Owen and Janice Rogers Brown. 

CARLSON:  Now, this phenomenon that I just mentioned a minute ago, people gaining a seat on the Supreme Court and then seeming to change their political views, orientation, and moving left.  You've seen it a million times, or many times, in any case. 

LARUE:  Yes. 

CARLSON:  What's responsible for that?  Is there something about the Supreme Court that turns justices into activist justices? 

LARUE:  Well, I think there have been occasions in which the nominees were people who didn't have a long paper trail.  I think the past is prologue.  The best evidence of where a nominee will go is to look at their opinions as judges, also, their speeches, their other writings, and so forth. 

And in the past, also, the Supreme Court hasn't been the issue that it's been today, because it has been much more activist in recent years.  And so we expect that there's going to be a long look at the record and the president will make the right choice. 

CARLSON:  All right, Jan Larue, Concerned Women for America.  We appreciate it.  Thanks.

LARUE:  Thank you, Tucker. 

CARLSON:  We welcome back Rachel Maddow and Joe Tacopina. 

Well, you just heard the interview.  Mrs. Larue seems very confident that the president is going to nominate someone conservatives can stomach, agree with, in any case.  I'm not so confident.  I think it's entirely likely, possible anyway, that he nominates Alberto Gonzales.  Why wouldn't he?  He likes him.  He said he likes him.  I don't know.  It could happen easily. 

MADDOW:  I think that the president shouldn't be consulting with any of the groups that I give money to.  And I don't think that he should be consulting with groups like Jan Larue's group. 

I think that he should be consulting with the Senate, including the Democrats in the Senate.  If he does that, he may come up with a nominee like Gonzales.  If he goes to his base, if he goes to the groups like Concerned Women for America, he is going to appoint somebody like McConnell, who I think would be an absolute disaster. 

TACOPINA:  You know, it's a great point she raised.  I mean, aside from the fact that I just think that they're going to pull Gonzales from the—you know, the top attorney in the country, the top government attorney in the country, I don't think they're pulling him from that spot at this point. 

There's also the conflict issue.  I mean, he did advise this administration on numerous issues and numerous cases that are going to eventually be before the courts.  He would have to recuse himself.  She's right.  And then you'd wind up with a 4-4 split.  You're almost like hindering your agenda if that's something you really want to do.

CARLSON:  And you may have an excellent.  Gonzales may, in fact, be, for almost procedural reasons, a difficult person to suggest for the Supreme Court. 

However, the point is the same, I think.  Going into an election year

·         this will be settled by—it has to be settled by October, you're going to have the entire Congress—you're going to have the entire House up for reelection, a third of the Senate, I think you're going to have pressure from Republicans even, “Don't drag this out.  We don't want something ugly.”  I think he'll go moderate in the face of that. 

MADDOW:  I think that the pressure will be there to not pick an extremist, to not pick somebody...

CARLSON:  An extremist? 

MADDOW:  To not pick a...

CARLSON:  Someone with real beliefs, you mean? 

MADDOW:  No, to not pick an extremist.  I mean, the case of Priscilla Owen and Janice Rogers Brown—glad she brought up those names, because those are two women who were picked because of their ideology.  They were both considered by, in Priscilla Owen's case, their hometown bar association, in Janice Rogers Brown's case, by the California Judicial Nominating Commission to be unqualified, to be bad at their jobs.  But they got picked because of their ideology.  Those are extremist nominees. 

CARLSON:  Well, wait a second.  Why shouldn't they be picked because of their ideology?  I mean...


MADDOW:  If they're bad judges, they shouldn't be picked. 

CARLSON:  Hold on.  Wait a second.  Wait a second.  Ideology has this sort of, you know, ugly sound to it.  It smells.  But let's be honest.  It just means picking someone because of what he or she believes.  What's wrong with that? 


TACOPINA:  Because it's the Supreme Court.  It's not a cabinet position.  This is the Supreme Court.  You need to be a little more pure here, a little less partisan. 

CARLSON:  But that is pure.

TACOPINA:  You can pick someone who's conservative, but conservative on judicial philosophy, not conservative politically.  And that's what you don't want to have.


CARLSON:  But I'm not at all suggesting he's got to pick someone who is loyal to the Republican Party.  That's repulsive, the idea of it.  I'm merely saying they ought to pick someone who believes something. 

MADDOW:  They ought to pick somebody who is qualified. 

TACOPINA:  How about someone who just believes in the letter of the law?

CARLSON:  Mutually exclusive.

Well, coming up, going to the dentist stinks, of course.  Going to grammar school stinks, too.  So naturally a school district in Illinois has decided to combine the two.  We'll run that depressing development by the “Outside” who naturally will defend it. 

Plus, if you're going to trade knuckle sandwiches on the floor of your parliament, you're going to win up on the floor of our “Cutting Room.”  The most amusing violence there is approaches, as THE SITUATION rolls on.   


CARLSON:  It's time to welcome back “The Outsider,” a man from outside the world of news who has the chutzpah to play devil's advocate to common sense itself on a series of stories.  Joining us now, ESPN Radio and HBO boxing host, the indomitable, heroic, if sometime misguided, Max Kellerman. 

MAX KELLERMAN, ESPN RADIO HOST:  Is that Yiddish?  Chutzpah!

CARLSON:  Chutzpah. 

KELLERMAN:  You speak Yiddish all of a sudden. 

CARLSON:  No, but you do, though.  I'm impressed by that.

KELLERMAN:  Well, thank you very much.

Well, Aruban justice continues to be confused in translation tonight.  After announcing murder charges against the three young men held in the Natalee Holloway case this afternoon.  Aruban authorities corrected themselves and said charges could be filed as soon as Monday. 

Meanwhile, a day after authorities said there was no evidence that Holloway was dead, Alabama Senator Richard Shelby wrote the FBI asking the bureau to get more involved in the search for the missing teenager. 

I'm normally against Congress getting involved in picayune thing, but this is not a picayune thing.  Here's how I make determinations about what Congress is doing.  WWTRD?  What would Teddy Roosevelt do? 

KELLERMAN:  Oh, I like that!  Oh, I like that!

CARLSON:  It's true.  It's true.  Teddy Roosevelt would intervened immediately.  Why?  Because he understood this:  If you're an American citizen, it's like having 19 drunk Irish brothers.  Nobody fools with you, because they know if they do, they're going to get spanked. 

I love the idea of the U.S. government saying, “You mess with an American citizen, we crush you.” 

KELLERMAN:  I love it, and I love the Teddy Roosevelt point.  And you brought up my favorite president.  And I concede.  No, I can't concede.  I have to actually...


CARLSON:  That's the spirit.

KELLERMAN:  Here it is.  This is the Tucker—I'm going to use your own technique against you.  You ever see the kung fu movie when the two guys meet?


KELLERMAN:  They use the technique against the other guy, his own techniques. 

CARLSON:  Oh, yes.

KELLERMAN:  Here's the Tucker Carlson technique.  You are diverting resources.  There's a war on terror.  The FBI's going to go send 20 agents down to Aruba to find one missing white, blond girl?


KELLERMAN:  And that's—because if it was Chandra from 149th Street, they're not sending no FBI down to Aruba. 

CARLSON:  Well, that's a separate—that's a separate and interesting point, and I think you're probably right.  However, it doesn't obviate the point that I made originally which it's worth doing also because it helps in the war on terror, because it sends a message.  It's symbolic, OK? 

Symbols matter.  And the symbol that this is, is the following:  You fool with an American, and we just go absolutely.  We're psycho.  We don't care. 

KELLERMAN:  I love it.

CARLSON:  We'll send the 82nd Airborne.  We'll level your country.

KELLERMAN:  And that's the way it should be.  It should be, an American anywhere in the world is completely safe because you've got the 19 drunk Irish brothers.

However, in this case, you're allowing the media's overreaction to really a non-news story to dictate where your resources are going when there is a war on terror. 

CARLSON:  Yes.  It reminds us...

KELLERMAN:  So that's the best rebuttal I got.  I agree with you. 

Let's just move on.         

CARLSON:  Let's do that.

Nineteen-year-old Nicholas Minucci was charged with a hate crime at Howard Beach, New York, today for Wednesday's beating of a black man with a baseball bat.  Both Howard Beach and Nicholas Minnuci have histories with race problems.  In 1986, a black man died as he fled an attack by a gang of whites.  As a 15-year-old, Minnuci was arrested for firing paint balls at Sikh worshippers hours after the 9/11 terror attacks. 

He sounds like a complete pig.  I have no problem believing that he's a hater and that he hit this guy because he didn't like black people.  In some strict sense, this was a hate crime.

I'm opposed to hate crimes.  I'm opposed to hate.  I'm opposed to crime, but I'm also opposed to hate crime legislation for these reasons: 

Every violent crime is an act of hate.  Hate crime legislation single out certain groups and give them extra protection that undermines the idea of justice. 

Under hate crimes legislation, if I go attack a man outside a gay bar, I'm punished more strongly than I would be if I attacked a 9-year-old girl.  That's wrong.  Everybody should be protected the same. 

KELLERMAN:  OK.  That's not quite “What Would Teddy Roosevelt Do?” but I think I agree with you again.  But again, I will offer the counterpoint here. 

CARLSON:  That's the spirit.

KELLERMAN:  We make a distinction in this country.  There could be the result of a crime, but we make a distinction between how you got to that place. 

In other words, someone dies at the hand of another person.  That could be manslaughter or it could be murder, depends on premeditation.  We also speak to state of mind.  Someone kills someone else.  Are they insane or are they sane?  So we do make distinctions about specific crimes, and we label them differently based on state of mind, based on premeditation, but based a whole host of...


CARLSON:  But this is even—you're right.  This is different.  This criminalizes an attitude.  This makes a thought crime out of something.  The single most common—single most common—hate crimes' category? 


Basically, there's a very fine line between intimidation and just saying something that I don't agree with or that makes me uncomfortable or makes me unhappy.  There was actually a man in Canada who was prosecuted for running a section of Leviticus attacking homosexuality in a print ad in the paper.  That was called a hate crime. 

KELLERMAN:  Well, we don't live in Canada, thank God. 

CARLSON:  No, we don't.  We're moving ever more slowly towards the Canadian way of life.  And it's chilling. 

KELLERMAN:  Let me just—look, I agree with you on this point.  I will offer one last point here. 

The nature of this country is such that the message having hate crime legislation sends is we don't tolerate behavior by groups like the Ku Klux Klan.  We don't tolerate that stuff.  And although I agree with you philosophically, I like the fact that I live in a country that has that basic outlook. 

CARLSON:  The Klan is like nine retarded guys.  And they're too drunk to commit crimes, thank God. 

Next situation, if you're going to get your teeth poked and prodded, if that wasn't painful enough already, grade-school kids in Illinois will now be forced to visit the dentist's office in order to receive their year-end report cards. 

Under an appalling new state law that goes into effect today, kindergartners and second- through sixth-graders will have to attend mandatory dental exams.  Meanwhile, unaffected first-graders will still be scarfing down as many Snickers and Kit-Kat bars as they can handle before their next school year begins.

This is just more evidence of the hubris of the welfare state and of teachers, in particular.  This is the kind of thing your parents make you do.  Is the school next going to require kids to say their prayers before the go to bed, brush their teeth—do you know what I mean? -- or write their grandparents a thank-you note for birthday presents?

KELLERMAN:  Well, this speaks to your theory about the worship of the body in this country, I think, more than anything.  I thought that's where you were going to go with this.

But let me just get this straight for a second.  I'm a kid.  If I skip out on my dentist appointment, my parents don't see my report card?  You're kind of killing two birds with one stone, aren't you?  I mean, what a great deal that is.

Seriously though, I think the distinction between dental and medical exams, records, is basically an insurance company, you know, that contrive this, and we require medical records for all kinds of things, no one blinks.  As soon as you say dental, somehow there's a difference?  I mean, dental is medical, really, right?  Give me shots...

CARLSON:  No, it's not.  And I'll tell you why.  Because gum disease is not communicable.  It hurts no one but you, right?  This is the province of parents.  Only parents ought to be able to tell you to go to the dentist.  When you turn 18...


KELLERMAN:  Chronic halitosis.

CARLSON:  ... you don't ever have to go again. 

KELLERMAN:  Bad breath affects lots of people. 


CARLSON:  Bad breath is not a crime I've noticed. 

Max Kellerman, thank you. 

KELLERMAN:  Thank you. 

CARLSON:  Happy weekend. 

KELLERMAN:  Happy Fourth.

CARLSON:  Coming up, what distinguished honor did this proud puppy recently receive for the third straight year?  The answer lies on our “Cutting Room Floor,” next.


CARLSON:  Welcome back.  Time now for the “Cutting Room Floor,” where we sweep up all the odds and ends of stories we couldn't fit in and bring them to you.  Our producer, Willie Geist, has them—Willie?

WILLIE GEIST, PRODUCER:  Happy Friday to you, Tucker.

CARLSON:  Thank you, Willie.

GEIST:  I want to remind our viewers, first of all, to go out and catch the movie “Rebound” which opened today.  A member of our senior staff, who wished to remain anonymous, was a part of the writing and creation of that. 

CARLSON:  Wait, didn't our executive producer, Bill Wolff, write that film? 

GEIST:  Ooh, I was going to leave his name out of it.

CARLSON:  Can't help it.  Sorry.

GEIST:  I just want to read one quick review.  A local New York paper said they would prefer stepping in front of a moving taxi to watching “Rebound.”  So...


CARLSON:  Sounds great. 

GEIST:  Yes.  Everybody go see it, please.  Go get them. 

CARLSON:  All right, thank you, Willie. 

Well, everyone loves a good parliamentary brawl.  Tonight's comes from the former Soviet Republic of Georgia.  Politicians there mixed up during a heated debate about the excessive use of police force at an anti-government rally.  Ooh, an irony story.

The shouting match between opposition and pro-government sides quickly turned into a full-scale parliamentary throw-down.  One politician had a broken nose.  Otherwise, it was a good, clean fight. 

GEIST:  You said it.  I guess the irony was lost on these guys that they were protesting the excessive use of force by beating the crap out of each other. 

CARLSON:  Yes, vodka does that.  It dulls your sense of irony. 

GEIST:  Yes, it does.  This spices up government a little bit.  Maybe we do these steel-cage matches on the floor of the Senate. 

CARLSON:  I could see that.

GEIST:  Get the young people back into government. 

CARLSON:  Well, if you're eating dinner right or just have a weak stomach, you might want to turn away from your TV for a moment.  I'm not kidding.  This is not pretty. 

Meet Sam, the ugliest dog in the world.  Sam is a 14-year-old blind, hairless Chinese Crested.  The third year in a row, he has been named the world's ugliest dog, with some justification.  Sam is so ugly the judges reportedly shuddered and gasped when he was brought to the evaluation stand. 

GEIST:  The question is, why do other dogs keep entering this contest?  You're not going to beat Sam.  All you can do is tip your cap to his other-worldly hideousness and go about your business.  Just stop.

CARLSON:  You know, I love dogs.  This is the only dog I've ever seen that's sort of tested my affection for the breed. 

GEIST:  It's not even a dog.  It's a rat. 

CARLSON:  I know.

Well, what do you know about the sex life of the African ground squirrel?  Not enough, according to one professor at the University of Central Florida.  Dr. Jane Waterman is in Africa studying the rodent's sexual behavior at a cost to you and I, and all taxpayers, of $600,000.  Dr. Waterman's other studies have included the playfulness of polar bears and the whisker patterns of bears.

GEIST:  I want you to go easy on her now.  Dr. Waterman changed the way we think about bears' whiskers. 

CARLSON:  And about squirrel sexuality. 

GEIST:  That's right.  Go easy.  She's doing good work over there. 

CARLSON:  Well, how's this for an unexcused absence?  A New York City high school teacher has been ordered to reimburse the city for using so-called sick time to join the pro wrestling circuit.  Matthew Kaye, or Matt Striker, as he's known in the ring, told the school he was taking an 11-day leave to care for an ill sister.  It turns out he was actually using his patented lung blower move at WWE's “Smackdown.” 

GEIST:  I say get off this guy's back.  You know, Tucker, Kamala the Ugandan Giant was my algebra teacher.  And he seemed to able to balance it very nicely.  So I say get off his back. 

CARLSON:  I actually remember Kamala the Ugandan Giant. 

GEIST:  You can balance both.

CARLSON:  Well, we send you off for the Fourth of July weekend in style with a story about a guy who was arrested last night for driving under the influence.  It was his second DUI arrest in the last two months. 

None of that would be funny if the man hadn't been driving a horse both times.  Somerset, Kentucky, police received a 911 call complaining that a man was causing a traffic jam by weaving his horse all over the road.  He failed the field sobriety test and was once again charged with, quote, “operating a non-motor vehicle under the influence of intoxicants.”

GEIST:  Is a horse really a vehicle?  That's the question.

You know, why is this guy being demonized and arrested?  He could have gotten in his car.  He got on his horse.  He should be speaking to high school kids. 

CARLSON:  Because Kentucky has a law against it. 

GEIST:  It's crazy.

CARLSON:  I guess they need a law against it. 

GEIST:  He did the right thing. 

CARLSON:  Willie Geist, that's THE SITUATION.  I'm Tucker Carlson.  Thanks for watching.  Have a great Fourth of July.  We'll be back Tuesday night.  Right now, stay tuned for “SCARBOROUGH COUNTRY.”



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