updated 7/7/2005 11:09:54 AM ET 2005-07-07T15:09:54

Guest: Patrick Leahy, Sam Brownback, Michael Isikoff, Robert Bennett

ANDREA MITCHELL, GUEST HOST: “New York Times” correspondent Judith Miller defies the court order and refuses to reveal her source in the CIA White House leak case and is sent directly to jail, while “TIME” magazine reporter Matt Cooper reverses himself and agrees to testify before the grand jury.  And President Bush picks former Senator Fred Thompson to direct his Supreme Court nominee through the confirmation process.  Can the actor put some law and order into this political drama? 

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

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

Judith Miller of “The New York Times” goes directly to jail because she will not reveal a source she promised confidentiality.  Matt Cooper of “TIME” magazine will testify, saying his source has freed him from their confidentiality agreement.  Speaking outside the courtroom, “The New York Times”' executive editor, Bill Keller, said this case will have a chilling effect on journalism. 

(BEGIN VIDEO CLIP)

BILL KELLER, EXECUTIVE EDITOR, “THE NEW YORK TIMES”:  Judy Miller has been taken into custody to be incarcerated at a jail in the metropolitan area.  This is a chilling conclusion to an utterly confounding case. 

It is confounding because of the mystery about exactly what crime has been committed and what exactly the special prosecutor hopes to accomplish by the Draconian act of punishing an honorable journalist.  It is chilling because it is likely to serve future cover-ups of information that happens in the recesses of government and other powerful institutions. 

(END VIDEO CLIP)

MITCHELL:  “TIME” magazine's  Matt Cooper also spoke outside the courthouse on this dramatic day. 

(BEGIN VIDEO CLIP)

MATT COOPER, “TIME”:  It is a sad time when two journalists who are simply doing their jobs and trying to keep confidences and report important stories face the prospect of going to prison for keeping those confidences.  It is a very sad day.  My heart goes out to Judy.  I told her as she left the court to stay strong.

(END VIDEO CLIP)

MITCHELL:  HARDBALL correspondent David Shuster was inside the courthouse and joins us now. 

David, clearly, Matt Cooper was very emotional.  This was a wrenching decision, but he said that his source contacted him today and released him from his vows.  That's the way it all came down. 

DAVID SHUSTER, NBC CORRESPONDENT:  Andrea, it was a very dramatic moment.   Matt Cooper essentially stunned both the judge, the prosecutors and everybody in the courtroom when, at the end of a five-minute statement in which he talked about his need and his desire to protect his confidential source, he revealed that, just before the hearing, that confidential source contacted Matt Cooper and authorized him to go ahead, testify to the grand jury. 

And Cooper said that, because this was a more personal waiver than the general waiver the source had signed several months ago,  Matt Cooper then felt that he was obligated to go ahead and testify to the grand jury.  As for Judith Miller, it was also a fairly dramatic for her, because clearly there was no conversation with her source today, at least according to her attorneys. 

And Judge Thomas Hogan, in a very matter-of-fact tone, in which he talked about the rule of law, he said there is still a realistic possibility that confinement might cause Judith Miller to testify.  So he ordered Judith Miller jailed to the D.C. area, which we presume means either the Arlington or the Alexandria jail. 

Now, there were some very interesting statements today, Andrea, from the prosecutor in this case, Patrick Fitzgerald.  He said that the testimony of both Miller and Cooper is essential to wrapping up this investigation as far as determining who in the White House sought retribution against Ambassador Joe Wilson by leaking the secret identity of his wife working for the CIA.

Fitzgerald had been asked not to force either of these two to testify because “TIME” magazine last Friday went ahead and provided some documents and some e-mails in which Matt Cooper's secret source was identified.  But the prosecutor then said that Cooper's testimony is now needed even more so than in the past.  And he said, we do not conduct trials or grand jury proceedings without live witnesses. 

And the irony, of course, in the curious choice of words, is that there will be no trial unless, unless the grand jury returns an indictment—Andrea.

MITCHELL:  Thank you, David Shuster.  It is completely confounding. 

I'm joined now by attorney Bob Bennett, who represents “New York Times” reporter Judith Miller.  We invited a representative of “TIME” magazine to appear on the broadcast.  “TIME” declined our invitation, but provided this statement: “Time Inc. respects Matt Cooper's right to make his own decision in this important legal matter.  But by personally and directly releasing Matt from his obligation to confidentiality, his source has made the decision for Matt to testify a simple one, as other journalists have already testified in this case after being released by their sources.” 

Bob Bennett, thank you for joining us. 

This is a very tough day for you and your client.  We thank you for being willing to speak with us. 

First of all, what is the crime that has been committed? 

ROBERT BENNETT, ATTORNEY FOR JUDITH MILLER:  Well, it's unclear, partly because there was a secret filing by the special prosecutor.  So, we have not been able to see that material.  So, I don't really know. 

I mean, it is a crime to out a CIA undercover agent.  It is a very complicated statute, which has many requirements.  I raised with the court in open court today my instinct that there may not really be a crime.  But I had to acknowledge that, because I'm not privy to that material, I couldn't really be sure about it. 

MITCHELL:  Let me also share with you something that your—that Matt Cooper of “TIME” said earlier when talking about these waivers.  He raised the question as to whether there really could be a voluntary waiver.  Let's have a listen to that. 

(BEGIN VIDEO CLIP)

COOPER:  I am with Judy that these government-issued waivers that the prosecutor has been handing out are not worth the paper they're written on.  These government-issued waivers that the prosecutor hands out to people and says, sign this, they're just not voluntary if your boss hands you something and says sign it.  It is coercive.  It cannot be considered voluntary.  And I don't think any reporter can take that as a legitimate waiver. 

(END VIDEO CLIP)

MITCHELL:  He pointed out that the situation changed for him, he says, because today his source personally released him from the vow.  Does that change anything? 

BENNETT:  Well, it certainly doesn't in Judy's case.  Judy also made that point to the court about these general waivers and pointed out that it would be very easy for any government agency to just give these blanket waivers. 

But Judy's source did not call her today or before today and voluntarily waive. 

MITCHELL:  Now, it's been suggested in print today in “The Washington Post” and elsewhere that, in one of the reporters' cases, the reporter may have been the sources.  I mean, there could have been multiple sources in each instance, but that someone like Judy Miller could have been the source to government officials about the CIA agent.  Is there anything to that? 

BENNETT:  I don't think so.  I don't really know for sure.  But I don't think so.  I don't think that's what we're talking about here. 

MITCHELL:  Has Judy Miller shared her sources, source or sources, with her attorneys?  I'm not asking you who.  Obviously, there's client privilege. 

(CROSSTALK)

BENNETT:  I don't even think I want to answer the initial question. 

MITCHELL:  OK. 

What is the larger picture here?  Is this a lot of special pleading?  We reporters all claim that there is a chilling effect.  Our bosses do.  NBC stood strongly behind Jim Taricani, who we interviewed last night here, the NBC reporter from Rhode Island who contributed to the successful prosecution of local officials, but was under house arrest for six months. 

What is the larger issue? 

BENNETT:  Well, I think the larger issue is whether or not we are going to have an aggressive and independent press able to do their job.  I mean, if I wanted to do a blueprint for a corrupt, unaccountable government, I would start with saying that confidential sources cannot be used and, if used, they have to be identified. 

Just as a practical matter, you are not going to get people to talk to the government—to reporters about government wrongdoing.  That is the—in my judgment, the larger issue. 

And Judy Miller showed today that she is a journalist of great principle and honor and she went to jail for it.  And this is very troubling.  Also, what I'm very concerned about is, as I advised the court, that these are areas where prosecutors should not push their powers to the hilt, but it is important to use wisdom, tempered with some compassion.  Fortunately, we have not had many instances where the attorney generals of the United States have pushed these kinds of issues. 

MITCHELL:  In fact, the people in the attorney general's office have said they would not have required testimony from reporters in this case, that it was only because there was a special prosecutor that this even happened, number one. 

BENNETT:  Well, part of the problem, Andrea, is, the press was pushing for a special counsel. 

MITCHELL:  Hoisted on our own petard.

BENNETT:  And I have long argued in many contexts and testified on the Hill that this is a very bad idea, because you're taking all of the law enforcement power of the government and giving it to basically a single, a single person. 

MITCHELL:  Was there a threat in court today that this prosecutor could try to turn this civil contempt against Judy Miller once she's in jail, if she still refuses, into criminal contempt?  And what would be the risk there for her? 

BENNETT:  I think that was there.  That was commented upon and it hovered over the proceeding. 

MITCHELL:  How much more jeopardy would she be in?  Could that extend her term, her incarceration? 

BENNETT:  Well, that would be very serious jeopardy, because that is a criminal contempt situation, for which, if you're convicted, you can get up to several years in jail.  I'm hopeful that Mr. Fitzgerald will not go there. 

And, if he does, I'm hopeful that the courts will not permit him to go there.  But Judy would have certain rights if that happened.  She would have a right to a trial and things, things of that kind.  But I really hope that wiser heads prevail and this doesn't happen.  It would be a tragedy. 

MITCHELL:  And, at this date, is she in D.C. jail, locked up with murderers and drug...

BENNETT:  She's...

MITCHELL:  ... convicted drug offenders?  Or is she in some—she's not in Martha Stewart land.  She's not in some rural, beautiful setting. 

BENNETT:  No. 

The answer is that the judge very specifically said incarceration in an area in the metropolitan vicinity, but not D.C. jail.  He was very clear to say that, which we were very pleased to hear.  As we speak, this is being worked out.  So...

MITCHELL:  But she did not get her request to go to Danbury, Connecticut, or one of the...

BENNETT:  She did not.

MITCHELL:  ... better white-collar facilities. 

BENNETT:  She did not get—grant her request to go to Danbury. 

And my guess—and it is just an educated guess—but, hopefully, it will be either Arlington detention center, which has a woman's facility, or someplace else in Virginia. 

MITCHELL:  Thank you, Bob Bennett. 

(CROSSTALK)

MITCHELL:  Bad day for journalism. 

Coming up, we'll talk to “Newsweek”'s Michael Isikoff and “Congressional Quarterly”'s Craig Crawford about the ethics of journalism. 

You're watching HARDBALL, only on MSNBC.  

(COMMERCIAL BREAK)

MITCHELL:  Coming up, “TIME”'s Matt Cooper agrees to testify, while “The New York Times”' Judith Miller refuses and goes to jail.  We'll talk about the ethics and the law of those decisions when HARDBALL returns.

(COMMERCIAL BREAK)

(NEWS BREAK)

MITCHELL:  Welcome back to HARDBALL. 

Who is the source who disclosed Valerie Plame's identity as a CIA operative? 

“Newsweek”'s Michael Isikoff reports that e-mails surrendered to the special prosecutor by “TIME” magazine show that Karl Rove was one of Matt Cooper's sources.  But Rove's attorney says that his client—quote—“never knowingly disclosed classified information.” 

Michael Isikoff is with us now.  And so is Craig Crawford, a columnist for “The Congressional Quarterly” and author of “Attack the Messenger: How Politicians Turn You Against the Media,” coming out in September.

And aptly named, Craig. 

CRAIG CRAWFORD, NBC POLITICAL ANALYST:  I should have called it jail the messenger, it turns out. 

MITCHELL:  Mike, Michael, first to you.  You wrote the article in “Newsweek” this week called “The Rove Factor.”  Is this all about Karl? 

MICHAEL ISIKOFF, “NEWSWEEK”:  Well, it's certainly in part about Karl Rove. 

What we reported was that the e-mails that were turned over last week do identify Rove as a source for Cooper.  And Robert Luskin, Karl Rove's lawyer, confirmed that the two of them did, in fact, talk, that Cooper and Rove talked during the crucial period late in the week before the Robert Novak column first outed Valerie Plame, the CIA agent. 

MITCHELL:  Which is the critical time frame. 

ISIKOFF:  Which is a critical time frame. 

Mr. Luskin said that, as you just mentioned, that Rove did not knowingly disclose classified information and that he did not tell any reporters that Valerie Plame worked for the CIA.  Now, that may get Karl Rove off the hook.  It is worth noting that Rove has testified three times before the federal grand jury.  So, he's clearly been within the scrutiny of Fitzgerald's investigation. 

And today, Fitzgerald and Matt Cooper talked about a singular source at issue, one source.  And that source had called—Cooper revealed in dramatic fashion in court today that that source called him personally and gave him this personal direct assurance that—relieving him of his pledge of confidentiality, so he can testify before the grand jury. 

The key question to me, and one which I think we have answered, but we'll know for sure very shortly, is that Matt Cooper said, as far as he was concerned, this assurance will allow him to—it was to testify before the grand jury.  It was not a waiver so that he can say publicly who the source was and what the two of them talked about. 

MITCHELL:  The difference being that the grand jury testimony is secret, supposedly.

ISIKOFF:  The grand jury testimony is secret. 

MITCHELL:  But, in defense of Mr. Rove—and he certainly doesn't need any defense from me—there could have been a number of sources.  In fact, there probably were multiple sources for Matt Cooper.

(CROSSTALK)

ISIKOFF:  The “TIME” article said say some government officials, plural, have noted that Valerie Plame...

(CROSSTALK)

MITCHELL:  And Novak...

(CROSSTALK)

MITCHELL:  ... also about two...

(CROSSTALK)

ISIKOFF:  And Novak also spoke about two.  Now, we do know that Matt has testified about another of the sources.  That was Scooter Libby, the vice president's chief of staff, because he also had personally assured Matt that—relieving him of his confidentiality. 

(CROSSTALK)

MITCHELL:  And other journalists, including our own Tim Russert, had been in that category as well.

ISIKOFF:  Yes. 

MITCHELL:  Craig, what's the risk here for journalists?  Is there a risk?

CRAIG CRAWFORD, NBC POLITICAL ANALYST:  I think there's a huge public relations risk, not just the matter of journalists going to jail. 

But the public I think has a difficult understanding the principle here.  It's very similar to when lawyers defend someone who they know to be guilty, for example.  There are many disconnects like that in our civic life.  And I think many in the public think that journalists are harboring criminal activity here and not understanding that the constitutional principle of the privilege to protect a source—once you give your word to a source, you keep that word, no matter how dirty the hands of the source might be. 

MITCHELL:  But, in fact, we've been told by many officials in this case that there is no constitutional privilege, which is why the Senate may be taking up exactly that. 

We'll be back in just a moment with Michael Isikoff and Craig Crawford. 

You're watching HARDBALL, right here on MSNBC. 

(COMMERCIAL BREAK)

MITCHELL:  We're back with “Newsweek”'s Michael Isikoff and “Congressional Quarterly”'s Craig Crawford. 

Let's talk about sources and ethics in journalism. 

Michael, can you do your job if you can't promise confidentiality to sources? 

ISIKOFF:  No, of course, not. 

I mean, any good story today, which—and a good story defined as something that is other than a government press release—depends on confidential and anonymous sources.  And, look, I mean, you know, we all learned the lesson again just recently with the disclosure of the identity of Deep Throat how important confidential sources are to the functioning of American democracy. 

This is clearly a—you know, a setback for that. 

MITCHELL:  Don't we all here in Washington, Craig, rely too much on the—not the anonymous source in an investigative piece, but the government official Cabinet secretary on a plane, you know, flying to a summit?

ISIKOFF:  Yes. 

CRAWFORD:  Right. 

MITCHELL:  Going on—quote—“background” because they don't want to offend the Chinese or the South Koreans.  And Jonathan Alter, your colleague at “Newsweek,” has a modest proposal in the Jonathan Swift sense. 

Let's just get rid of all of these confidentiality agreements and tell the White House you're not going to accept a background briefing by Steve Hadley from the NSC. 

CRAWFORD:  Reporters are wide open to abuse by political players who want to hit a political foe anonymously.  That happens. 

And the problem is, you know, reporters have to be careful.  And good ones like Michael and yourself are careful about granting that offer of protection when you publish or broadcast a story.  And what we've learned here is that—what a chilling effect that can be. 

MITCHELL:  OK, well, chilling effect tonight in Washington. 

Thank you, Michael Isikoff and Craig Crawford. 

And when we return, Senators Pat Leahy and Sam Brownback of the Judiciary Committee on the upcoming battle over the Supreme Court. 

You're watching HARDBALL on MSNBC. 

(COMMERCIAL BREAK)

(NEWS BREAK)

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

President Bush has asked Judiciary Committee member Fred Thompson to be his point man for winning the confirmation of a new Supreme Court justice.  Mr. Bush is in Scotland tonight for the G8 summit and had this to say about when he will nominate someone to replace Sandra Day O'Connor.

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  I want the person confirmed and sitting by the time the court meets again in October.  And, in other words, that's the backstop and we'll work backwards to determine what is best for the Senate calendar to get the hearing and to get the vote up or down on the floor of the Senate. 

Secondly, I've begun the review process for prospective candidates.  On Air Force One flying over, I've been reading about the different backgrounds and different opinions and different attitudes of the prospective nominees.  When I first get back, I will consult with members of the Senate.  I have done so far.  Our staff continues to do so.  And then I'll begin the interview process. 

(END VIDEO CLIP)

MITCHELL:  We have with us tonight two members of the Senate Judiciary Committee, Republican Senator Sam Brownback of Kansas, but I want to begin first with Vermont Senator Pat Leahy, the ranking Democrat on the committee. 

Senator Leahy, what sense do you have from the White House of the timing of this?  I know you're going to meet with the president when he gets back from the summit.  But do you have a sense now that he may take a few weeks before he reaches a decision? 

SEN. PATRICK LEAHY (D), VERMONT:  Well, I had a long talk with the president on Friday about the nomination.  I think we'll have a better idea when we meet early next week. 

Senator Specter and I have talked about the schedule it would take for the committee.  You know, though, we should all remember that Justice O'Connor gave everybody a great gift.  She said she would serve until her replacement is confirmed.  So, you don't have a tight, tight time schedule, as you might have otherwise. 

But I'm sure the president and the people around him realize is, it takes a fair amount of time to prepare for one of these hearings.  I've been there for 11 Supreme Court nominations.  Even the easiest ones take a fair amount of time to prepare.  If the president, for example, nominates a sitting judge somewhere, you want the members, all of us on the committee, Republics and Democrats, will want to read all their opinions.  That takes some time and to prepare for a real hearing. 

MITCHELL:  Senator Leahy, you seem to be suggesting that the president should not be holding a gun up to your head of the, you know, the first Monday in October. 

LEAHY:  Well...

MITCHELL:  You're laying the groundwork for the possibility that Sandra Day O'Connor would come back for the fall term if there is no one confirmed yet. 

LEAHY:  No, actually, Justice O'Connor left that possibility by saying she would stay on until her replacement is confirmed.  And a lot depends upon, of course, what the time schedule is.

MITCHELL:  In other words, you don't want to be rushed by the White House.

LEAHY:  Well, no.

MITCHELL:  And you don't want to get yourself into a situation where the president stalls or delays or takes his time or is deliberative, however you want to phrase it, and then, toward the end of August, leaves this nomination on your desk and you don't have enough time to really do a thorough job. 

LEAHY:  Well, I wouldn't—I wouldn't presume to tell the president what his time schedule should be. 

But, of course, he should not think that he should tell the Senate what the Senate's time schedule should be.  But I don't want to see this as a confrontational thing.  We will give some advice to the president, following the advice and consent clause of the Constitution.  He has to make the final determination of whom he'll nominate.  But then we have to make the final determination of when and how we may or may not consent to that person. 

MITCHELL:  Senator Leahy, let me try to get you to define a few terms for me, because Senator Lieberman had suggested that extraordinary circumstances, which was the exception that would permit a filibuster, under some certain extraordinary circumstances, could include if the nominee has an extraordinary ideological position, not just a personal problem. 

What is your definition of what would justify a filibuster? 

LEAHY:  Well, you know, that's something every senator has got to decide by themselves.  I said to the president, I'm not in here with the idea of a filibuster.  I'm in here hoping that the president will unite the country and not divide the country, that the president will nominate somebody who, like Sandra Day O'Connor, who got 99 votes, all Republicans, all Democrats. 

(CROSSTALK)

MITCHELL:  But what if he lives up to his—what if he lives up to his campaign promise, his pledge to nominate someone in the mold of Justice Scalia and Justice Thomas?

LEAHY:  Well, actually...

MITCHELL:  Would that kind of nominee lead to a filibuster?

LEAHY:  Well, Justice Scalia and Justice Thomas are sui generis.  I don't think it would be possible.  I don't even think they feel that anybody is exactly in their mold. 

So, let's see who the president—let's see who the presidents nominates.  I'm—I wish that people—and here, I do agree with the president, that the people on both sides, those operating out of the White House on the right, those operating with Democrats on the left, would tone down the rhetoric, would stop making this like a presidential campaign. 

Remember, it's the American people who have the stake here.  Whoever is confirmed is there to represent all Americans and to protect the rights of all Americans.  And they should not be there as an adjunct of either political party.  And I would hope that that is what the president work take in mind.

You know, this is a matter for his legacy.  Just as part of Ronald Reagan's legacy was Sandra Day O'Connor, this nominee can be part of George W. Bush's legacy. 

MITCHELL:  Now, if—if the right does not stop their multimillion-dollar advertisement campaign, should the left unilaterally disarm? 

LEAHY:  Well...

MITCHELL:  Or do you think that this becomes an escalating war?

(CROSSTALK)

LEAHY:  I haven't met with the groups on either side, nor do I have any present intention of doing that. 

I suspect both are raising a lot of money on this.  I think I told the president he could surprise everybody by just naming somebody that would have strong support from both Republicans and Democrats.  Actually, that would be the best thing for the country, if you had somebody that everybody in the country would see, yes, this is a man or a woman who will protect my rights, whoever I might be, if I end up before the Supreme Court. 

MITCHELL:  All right.  Thank you very much, Senator Pat Leahy. 

LEAHY:  Yes. 

MITCHELL:  And when we return, we'll get the Republican reaction from another member of the Judiciary Committee, Senator Sam Brownback of Kansas.

And later, NBC Universal chairman Bob Wright on today's surprising selection of London to host the 2012 Olympics.

This is HARDBALL, only on MSNBC. 

(COMMERCIAL BREAK)

MITCHELL:  Coming up, the White House and Senate Republicans say the interest groups should tone down their rhetoric over who should replace Supreme Court Justice Sandra Day O'Connor. 

Republican senator Sam Brownback of the Judiciary Committee joins us when HARDBALL returns.

(COMMERCIAL BREAK)

MITCHELL:  Welcome back to HARDBALL. 

To continue our conversation about the vacancy on the Supreme Court, we're joined now by a new member of the Senate Judiciary Committee, Kansas Republican, Sam Brownback. 

Welcome, Senator. 

SEN. SAM BROWNBACK ®, KANSAS:  Thank you, Andrea.

MITCHELL:  Senator, is it your interpretation that there should not be a filibuster unless there is a personal problem in this person's record?  Or is Senator Lieberman correct, that extraordinary circumstances, the terms of agreement of the gang of 14, could include an extraordinary ideological issue? 

BROWNBACK:  Well, I don't think there should be a filibuster at all.  And remember, Andrea, too, it's not 14 members that you have to get to change this.  It's two of that 14 that you have to get to actually change this rule. 

It requires only a 51 vote in the Senate to be able to change the rule.  And I really think that the Democrats in particular have played through this hand, to where I hope that really the filibuster option is off the table and we're actually going to have a dignified, thorough process and a vote on the Supreme Court nominee. 

MITCHELL:  But do you think the Democrats—you don't think the Democrats have a right to hold that out as an option if the president nominates someone who they believe is an extremist, an extreme conservative who would be taking the seat?

BROWNBACK:  Well...

MITCHELL:  This is the seat, of course, of Sandra Day O'Connor, a pivotal swing seat, rather than the more anticipated seat, conservative seat, of Justice Rehnquist. 

BROWNBACK:  We'll, these seats aren't owned by any side one way or the other.  They're not owned by conservatives or liberals. 

The seats are owned by the American people and the process is, the president nominates and then the Senate votes on a majority vote.  The constitution never contemplated a super-majority vote.  And I think it will be for the president to determine who does he think that should go in, not saying, OK, this was a moderate seat and therefore you have to put a moderate jurist on the bench. 

MITCHELL:  What would your position be if the president determines that Alberto Gonzales is the right person for this seat? 

BROWNBACK:  Well, I would want to see his view on how he would interpret the court's role and the Constitution. 

To me, the key issue here for the courts, for the Constitution and for the country is for the courts to be the court and not a legislative body, a super-legislative body, and for the Constitution to be the document it is, not what somebody would hope or wish it to be or try to invent it to be.  And that's what I would be looking at on Attorney General Gonzales or any other nominee, is how they view the Constitution and the court's role in upholding that Constitution. 

MITCHELL:  Do you share some of the wariness of conservative members of your party and some of the activist groups such Tony Perkins, who believe that—that the attorney general is too close to the moderates, that he doesn't have enough of a paper trail, and that in fact he might be a closet moderate? 

BROWNBACK:  Well, I share that concern of anybody that doesn't have a thorough paper trail, that you know the thought pattern of how this person views the Constitution. 

Remember, during the last presidential campaign, President Bush's lead applause line was when he would say that he was going to nominate judges that would uphold the Constitution, not try to rewrite it, that would uphold and enforce the law, not write the law as they wish it would be.  I mean, his whole point of this—and the people applauded for that—was for judges to be judges, not legislators. 

And the problem with anybody that doesn't have a pretty thorough paper trail is, you're not sure how they're going to view the Constitution, whether it's a living document that can change and move or if it's a set document and the words mean what they say. 

MITCHELL:  Do you see any value in having a female nominee or an Hispanic nominee, someone other than a white male, given the composition of the rest of the court, with Justice O'Connor leaving? 

BROWNBACK:  You know, I think those are pluses if we have somebody nominated of that nature.

But at the core of this has to be somebody's view of the Constitution and the role of the courts.  And that's really what is at stake here.  And that's why there's been such fervency and strong feeling about the Supreme Court position, because the court itself has placed itself in the middle of so many controversies that, in the past, were always left up to legislative bodies to hash out and to think about and to move and to have different elections. 

And, instead, the court has stepped in, big-footed these issues or, in this recent New London case, has come in and really changed the thought pattern of what public use is for private property rights.  And this really stirs a lot of people up. 

MITCHELL:  The 5-4 decision on eminent domain. 

Before I let you go, briefly, Senator, how do you feel about the push by a number of journalist groups for a shield law to protect journalists from having to reveal confidential sources now that Judy Miller has gone to jail? 

BROWNBACK:  Well, I know Judy Miller, and I've been at conferences with her. 

And I also know a number of reporters.  They want to be able to protect the confidentiality of who they're reporting on and who they're getting comments from or they're not going to be able to get the type of information that they—that they seek.  I think this is something that we should contemplate. 

There can be and in cases there are extraordinary circumstances, where safety of individuals, other individuals is involved.  And you've got to think of that as a primary concern when somebody else's life or lives are at stake.  But I do think we should do everything we can to protect confidentiality of reporters and their sources. 

MITCHELL:  Thank you very much, Senator Sam Brownback.

BROWNBACK:  Thank you. 

And when we return, London squeaked past Paris and will host the 2012 Olympics.  I'll be talking to NBC Universal Chairman Bob Wright. 

You're watching HARDBALL, only on MSNBC.  

(COMMERCIAL BREAK)

MITCHELL:  Welcome back to HARDBALL.  One of the most closely watched elections took place today in Singapore, as the International Olympic Committee awarded the 2012 Summer Games to London.  The Games will be broadcast on the networks of NBC.

And with us now is NBC Universal chairman and CEO Bob Wright, who is in Paris, which finished second in today's vote. 

Bob, welcome. 

How much of...

BOB WRIGHT, CHAIRMAN & CEO, NBC UNIVERSAL:  Hi, Andrea.  How are you? 

MITCHELL:  Well, fine, thank you. 

But how much of a surprise was it that London beat out Paris? 

WRIGHT:  I was very surprised.  For one, I was very surprised. 

I was here probably in the anticipation that Paris would be awarded the Games and with our partners from Vivendi Universal.  So, it was quite a surprise.  The vote was 54-50, I'm told. 

MITCHELL:  Exactly. 

I wonder whether—I guess we won't know for a while, until things start leaking out—whether the two Finnish judges on the Olympic Committee might have voted against France as a result of Jacques Chirac dissing Finnish food and saying that—that England's great contribution to European culture was mad cow disease.  I mean, Chirac is hardly the diplomat. 

WRIGHT:  Well, they have two votes.  And if they were going to vote for France and they voted for London, it would have been tied if they had stayed with their—you know, if that was the case. 

So, who—you know, I guess somebody is going to have to ask them.  They're not going to publish the results of how individuals voted, but I don't know, under IOC rules, I suppose you can say how you voted.  We'll find out. 

(CROSSTALK)

MITCHELL:  I know that you did expect it to be a European city.  New York was really never considered a strong contender.  Does it make any difference from a business perspective for it to be London over Paris for NBC? 

WRIGHT:  Well, just a comment on the first part of that. 

I mean, we—we thought it was more likely to be a European city because of the—it's not really because it's Europe, as much as that France was the one.  This was their third application.

They did everything. They won all of the points in terms of going up to this actual voting.  They got the highest grades.  They've held, they've hosted the World Cup, which is the hardest—it's the hardest sporting event in the world, other than the Olympics, to host.  It goes on for weeks and it's got millions and millions of people.

They did that.  They had the athletics championships.  So, they've done—they've punched all the tickets.  So, they were the likely winner of—independent of other things.  And London, this was their first application.  So that makes it quite a surprise.  New York, it was its first application. 

And so, in that respect, and because we have in the North American continent in 2010 Vancouver with the Winter Olympics, it made it harder for New York to be, you know, awarded the subsequent Olympics, going from '10 to '12.  New York, by the way, should be, I would hope, in very good shape, you know, and I hope it continues its bid for '16 and '20.  And, you know, the French, this is actually their third time seeking it. 

So, they did not get any European favoritism.  That's for sure. 

MITCHELL:  Now, the French, as you pointed out, were the favorites.  They were the favorites in all the betting, the official betting.  They had all the odds in their favor.  They had a stadium already built.  London is now going to have to rebuild the East End of London.  That was one of the selling points, that this would be an enormous renewal program for London, right? 

WRIGHT:  Well, except that the—you know, except the government is not the bidder here. 

The government of the U.K. is not financially backstopping the London Olympics.  So, it will be more—somewhat like the United States, where Mayor Bloomberg was pulling all of this together using his own persuasion and his own political devices, but more or less the money was coming from private organizations. 

And I think London will have a lot of that, plus, as you say, some very significant infrastructure adds between now and 2012. 

MITCHELL:  Now, given the five-hour time difference between London and the United States, will a lot of the Olympic venues be live broadcasts?  Will a lot be taped?  How do you make those decisions? 

WRIGHT:  Well, I think that every hour you're closer to U.S. time zones is better for our viewers in America.  It means that the events are closer in real time.  So, that's helpful. 

The fact that it's in—it's—we're in an English-language country in the U.K. and London certainly makes it easier behind the scenes and doing a lot of the things that are necessary to put Olympics together.  So, yes, I think the viewers will be favored to the extent of an hour closer to the real events. 

But I think, otherwise, that they would be similar.  Five hours is not something—Dick Ebersol and NBC Sports has been at the test for up to 24 hours and a difference.  So, five hours looks pretty good against being a lot further away, such as we were in Sydney or perhaps being in Asia with Beijing will be more difficult. 

MITCHELL:  Well, there's nobody—no one better than doing this than Dick Ebersol.  This is going to be a big political bus, also, I can expect for Tony Blair.

Before I let you go, Bob, you and Suzanne Wright have done so many extraordinary things on behalf of autism.  If you were going to help educate the American public one more time as to what they need to know, what is the one thing that most people don't know about this scourge of autism? 

WRIGHT:  Well, you're nice to say that.  That's my pin here, my other job. 

What they don't know is that one out of 166 children born in the U.S. this year, next year and the year after, hopefully, at some point less, but will be autistic.  And there's 4-1 boys vs. girls.  So, it's actually one in every 104 boys will be autistic and one in every 400 girls.  That's how you get the 166 number. 

And that's a lot.  That's an awful lot.  And that's a lot to be concerned about.  And we still don't have an—we don't have an organized diagnosis.  We don't have a systematic treatment.  We don't have insurance reimbursability in most of the country.  We don't have health organizations that are stepping up to treat and to diagnose.

And we don't have the federal government in a very major supportive way.  We do have a bill in Congress now in the Senate and the House.  And it was introduced in the Senate by Senator Santorum and Senator Dodd in a really strong show of leadership.  And that got us off the ground, and Congressman Bono in the House among others.  And this is an important funding issue, to try to get money into some of the major medical centers in the United States to do research, to organize treatment, to get a handle on the science of—it's—there is a genetic base.

At least, that's what we believe and understand.  So much has to be done, Andrea.  And for the parents of the—of the—you know, the hundreds of thousands—there's probably somewhere between 1.2 to 1.5 million autistic people in the country.  And they need a lot of services, a lot of social services.  And, in many cases, there's just no money to do that. 

And parents are exhausted and, in many cases, broke as well trying to treat and make life better for their children.  So, we're here to help on that.  We're trying to pull it together.  We're trying to become a factor.  We're trying to become a factor in Washington in hospitals and in science.  That's the objective. 

MITCHELL:  Well, thank you very much, Bob Wright, for all of your advocacy.  Thank you and Suzanne Wright.  And thank you for joining us here today. 

WRIGHT:  Thank you.  Thank you, Andrea. 

MITCHELL:  Chris will be back tomorrow night at 7:00 Eastern for

HARDBALL. 

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

END

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