updated 7/7/2005 11:13:47 AM ET 2005-07-07T15:13:47

Guest: Rosa Brooks, Charlie Gasparino, Rachel Maddow, Max Kellerman

(BEGIN VIDEOTAPE)

TUCKER CARLSON, HOST (voice-over):  A reporter goes to jail.  Should the court be mightier than the pen? 

Plus, Aruba's angry reply to a mother's desperate plea. 

BETH HOLLOWAY TWITTY, MOTHER OF NATALEE HOLLOWAY:  I ask the world to help me. 

CARLSON:  You won't believe how some teens spent their summer vacation.  We've got the skinny on a new Lindsay Lohan Web site. 

And an Olympic triumph.  Let the celebration begin. 

UNIDENTIFIED FEMALE:  Are you ready for 2012?

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. 

(COMMERCIAL BREAK)

CARLSON:  Welcome to THE SITUATION. 

I'm Tucker Carlson.  Let's unveil the stack of stories, including a curiously under-reported race murder in New York and whether or not Sandra Day O'Connor ought to be replaced by another woman. 

Joining me now from Air America radio, Karl Rove confidant Rachel Maddow, and from the business pages of “Newsweek” magazine, Rachel Maddow confidant Charlie Gasparino. 

Thank you both for being here.

Our first situation, dramatic developments today in the case of reporters Judith Miller and Matt Cooper.  Miller was ordered to prison for refusing to reveal her source in the Valerie Plame leak investigation.  District Judge Thomas Hogan said he believed that confinement might inspire Miller to testify.

“TIME” magazine's Matt Cooper, meanwhile, changed course and agreed to testify before the grand jury at the last minute.  He says his confidential source this morning consented to being revealed in court.  So, Cooper avoids jail time after all. 

This is a travesty.  I mean, that's the bottom line of this.

CHARLES GASPARINO, “NEWSWEEK”:  Absolutely.

CARLSON:  The judge's remark that jail time will compel or convince somehow Judy Miller to testify is ridiculous.  I think she'd probably face a firing squad before testifying.  And he knows it. 

She said something I thought pretty moving in court today.  She said a lot of things.  Here's one of them.  “The freest and fairest societies are those with the free press publishing information the government doesn't want to reveal.”

Now, this is trite on one level, but it's also deeply, deeply true.  And this—Bill Keller of “The New York Times” is absolutely right.  This is chilling.  This is the press publishing something the government doesn't want published and the government putting—using all its force in the most horrible manifestation to put the reporters in jail.  It's disgusting.

GASPARINO:  I mean, it's sick.  And she did absolutely the right thing.  I mean, I'm really proud of her today.  I mean, she did a stand-up thing and she protected people like me.  I mean, listen, I live and die by my sources.  I'm a working journalist.  And she really took a bullet for all of us. 

RACHEL MADDOW, RADIO TALK SHOW HOST:  I think that history is going to look kindly on what Judith Miller did, in terms of standing up and going to jail and defending her source.  I think that history is going to look very poorly on the prosecution of her.

(CROSSTALK)

MADDOW:  But also on the criminal in the White House who started this situation. 

GASPARINO:  Karl Rove, right? 

(LAUGHTER)

MADDOW:  Could be.  It would be great to know.  The special prosecutor will tell us eventually.

The thing that's hard to absorb about all of this is that Fitzgerald says he knows Cooper's and Miller's sources. 

GASPARINO:  Yes.  So, why are we here? 

MADDOW:  So, why did he do this?  What's the purpose of doing this? 

This doesn't help them solve the crime. 

CARLSON:  Well, we don't know, because he doesn't have to explain. 

GASPARINO:  Right. 

MADDOW:  Right. 

CARLSON:  Because he's an independent prosecutor.  I think it's time to retire this law.

GASPARINO:  Right. 

CARLSON:  This office of independent prosecutor, I mean, it's predicated on the idea that the Justice Department is too corrupt to handle these cases.  That's simply not true.  The Justice Department isn't too corrupt.  This guy has no check at all on his power or on his budget.

GASPARINO:  As a matter of fact, he has free check.  He has carte blanche to spend as much money as he wants. 

Let's not forget that “The New York Times”—there is an irony here.  And I—like I said, I love what Judy Miller did.  And it's great hearing Bill Keller say what he said.  “The New York Times” did call for an independent counsel, I believe, in one of its op-eds. 

CARLSON:  That's right. 

MADDOW:  I don't think...

(CROSSTALK)

GASPARINO:  And so there is an—there is an irony here. 

CARLSON:  And there's also—but I should point out there's good news, I think.  And that is Matt Cooper, father of a 6-year-old son, didn't have to go to jail.

GASPARINO:  Right. 

MADDOW:  That's right. 

CARLSON:  He was released at the last moment by his source. 

GASPARINO:  Right. 

CARLSON:  He did the honorable thing.  There was this poignant moment today outside the court.  He gave a press conference.  And he said he hugged his boy goodbye, he thought for the last time, for many months. 

GASPARINO:  That was an amazing press conference. 

CARLSON:  It was.  It was. 

(CROSSTALK)

CARLSON:  We're very jaded, I think.

GASPARINO:  Yes. 

CARLSON:  But this was poignant. 

MADDOW:  The thing that's important I think to take away from that—

I will say, for the record, that I'm in favor of there being an independent prosecutor here, because the Justice Department had to recuse itself, because the Justice Department may have been involved in this.

GASPARINO:  Because this was a huge case, right? 

MADDOW:  It is an important case.

CARLSON:  There was no—this is no...

(CROSSTALK)

MADDOW:  The Justice Department made the decision on its own to recuse itself and to have a special prosecutor come in. 

(CROSSTALK)

MADDOW:  You're going to tell Ashcroft, who made the decision, he should have... 

(CROSSTALK)

CARLSON:  Yes.  That's exactly right.  That's...

MADDOW:  No.

CARLSON:  The Bush administration did this.  I'm attacking directly the Bush administration for doing it. 

GASPARINO:  Right. 

CARLSON:  It hurts their interests.  It hurts America. 

But you said something last night I want to revisit.  You said whoever did this is a traitor. 

MADDOW:  Yes. 

CARLSON:  I took a close look at this all day today.  And there's zero evidence that a crime was committed. 

Under the 1982 law, for a crime to be committed, the person revealing the name of the undercover agent or officer...

MADDOW:  Yes. 

CARLSON:  ... has to know that he's revealing classified information. 

MADDOW:  Right. 

CARLSON:  The CIA made no effort to keep this secret, none. 

GASPARINO:  Absolutely.

(CROSSTALK)

CARLSON:  This is a woman, Valerie Plame, who works at CIA headquarters.  By definition, almost, she can't be covert if she is working at Langley. 

GASPARINO:  Right.  She's not...

(CROSSTALK)

MADDOW:  She is.  It is a matter of fact, it's a matter of record that she's a covert CIA operative.

And if you want to decide the merits of this case based on whether or not she's covert, you'll lose the argument. 

(CROSSTALK)

CARLSON:  But the law turns on that question. 

(CROSSTALK)

GASPARINO:  I know an FBI agents that plans parties.

MADDOW:  Good for you. 

GASPARINO:  She's a party planner.  OK.  But is she a covert FBI agent? 

MADDOW:  That's a matter of fact.  She may be or she may not be.  It's a matter of record...

(CROSSTALK)

GASPARINO:  This is why we have prosecutorial discretion.

CARLSON:  No, but this is the insight I learned from reading about the law today. 

And that is, to be defined as covert, you have to be someone whom the federal government...

GASPARINO:  Actually does something.

CARLSON:  ... is—quote—“taking active steps to keep anonymous.” 

MADDOW:  Right.  Right. 

CARLSON:  Active steps.  There's no evidence the government was taking active steps to keep Valerie Plame anonymous. 

GASPARINO:  What was her job?  What does she do?

(CROSSTALK)

CARLSON:  Or they wouldn't have sent her husband to Niger.

(CROSSTALK)

MADDOW:  Valerie Plame was a covert CIA operative.  Fair enough.  If you absorb that as a matter of fact, then you have to acknowledge that somebody decided to give her name to Bob Novak to publish as retaliation for her husband criticizing the administration. 

(CROSSTALK)

CARLSON:  You can call her covert all you want, but that doesn't mean she meets the legal definition.

MADDOW:  She is.

GASPARINO:  And she was doing nothing covert...

(CROSSTALK)

MADDOW:  The decision here is not whether—the matter of discussion across the country coast to coast right now isn't how covert Valerie Plame was.  That's splitting hairs like I can't believe. 

CARLSON:  No, it's not.  It's not.

(CROSSTALK)

MADDOW:  You're avoiding the issue of whether or not somebody in the Bush administration sacrificed national security for political gain. 

(CROSSTALK)

CARLSON:  Let me—no one has demonstrated what national security was compromised in this. 

But, more to the point, this turns on this very specific 1982 law that makes it illegal to do such things. 

MADDOW:  Right. 

CARLSON:  And, under that law, you have to meet a very strict definition of covert.  She doesn't even approach the definition of covert. 

(CROSSTALK)

MADDOW:  You don't know that.  You do not know that. 

(CROSSTALK)

GASPARINO:  We're having this conversation about a clerk, someone that was tantamount to a clerk.

MADDOW:  Listen, if you guys want to impugn how important Valerie Plame is to our national security...

CARLSON:  I'm not at all impugning that.

(CROSSTALK)

MADDOW:  You're still avoiding the principal question of whether or not that law should be on the books.  Should it be illegal to disclose the identify of a covert agent for political reasons or any other reason? 

(CROSSTALK)

CARLSON:  Well, that's a whole—that's a whole separate question, the question of whether we should have a law or not.  The question is, does she meet that definition?  Therefore, was a crime committed in this case? 

MADDOW:  And if it's a matter of fact how covert she was, I'd be happy to take you to the bank on that one. 

CARLSON:  OK.

(CROSSTALK)

MADDOW:  But I think that, in fact, whoever did this in the Bush administration is a criminal and is a traitor.

(LAUGHTER)

CARLSON:  OK.  OK.

GASPARINO:  A traitor.

MADDOW:  Come on. 

(CROSSTALK)

CARLSON:  Well, on the same day last week, “The New York Times” reported on two crimes that took place in New York, back to “The New York Times” again.

The first was the beating of three black men by white men with baseball bats in the borough of Queens.  It was the lead item in the June 30 “Metro” section of “The New York Times.”  The paper has followed with 10 more different pieces about that crime. 

The other crime was the stabbing murder of a 56-year-old woman in White Plains.  Today, “The Times” revealed that her killer, a homeless sex offender who is black, admitted to killing her because of her race.  “She wasn't innocent,” he said.  “She was white”—end quote.  This news was printed on page three of the “Metro” section. 

And the point is, there will not be a series of follow-up stories about this.  You won't see trend pieces, though there is something of a trend of race-based killings in—of this kind.  But you won't see “The Times” cover it.  And the point is this, paper, like almost every other in the country, sticking to a narrative that's 40 years old.  And it is, hate crimes are only committed by white people, by rednecks.  And that's just not true.  And it's inaccurate reporting. 

GASPARINO:  Well, I mean, listen, I don't know if this killing of this woman was necessarily a hate crime.  I mean, this was an insane maniac. 

And that's one of the problems I do have with this hate crime legislation. 

CARLSON:  Well, that—I agree with that.

(CROSSTALK)

GASPARINO:  The guys in Howard Beach—I mean, by the way, that does not—that's not as clear-cut as it may have first appeared.  There may have been other motives there.  Those guys are thugs, OK?

CARLSON:  Well, I agree with you that...

(CROSSTALK)

GASPARINO:  They might have beat up anybody who walked into that...  

(CROSSTALK)

CARLSON:  The idea of hate crimes is a difficult...

GASPARINO:  Right. 

CARLSON:  It's hard to know people's motives.  But to the extent we can know, that's what this guy said:  I killed her because she was white.  Period.

GASPARINO:  Right. 

MADDOW:  The relative weight of these two stories, though, I think is complicated.  I agree that the Westchester story has sort of gotten more press.

But the Howard Beach killing hits all of these resonate notes for New York press.

CARLSON:  Right. 

MADDOW:  Which is the Howard Beach history from 20 years ago.  And that's why...

(CROSSTALK)

GASPARINO:  It wasn't—it wasn't a killing.  I mean, we are comparing it to a killing. 

MADDOW:  Right.  Right. 

GASPARINO:  I mean, that's the problem. 

(CROSSTALK)

GASPARINO:  That's the problem with the coverage.  The coverage—there clearly is a racial element to the coverage.  I think reporters generally look at these things.  And when they see white people attacking blacks, they think of the civil rights movement...

(CROSSTALK)

CARLSON:  But it's not just white people.  It's—let's be honest. 

It's Italians who live in the outer boroughs and it's rednecks. 

GASPARINO:  Right. 

CARLSON:  It's a certain sort of lower-middle-class white person who is assumed to have these bigoted attitudes.  And it's just not fair.

MADDOW:  But for New York City to go—to find out there's another story of white people attacking a black person in Howard Beach, it just hits all these historic...

(CROSSTALK)

MADDOW:  And that is why it ends up on the front page.

GASPARINO:  As an Italian-American, I agree with that, because it was interesting.  When you read “The New York Times,” which essentially strays away from classifying people by race, started actually talking about this Italian-American neighborhood, how these people are Italian, actually mentioning that overtly.  And I think that was a big problem with their coverage. 

MADDOW:  I think it also mattered that it was a cop's son involved in the Howard Beach incident.  I mean, I think there's all these reasons that it got more attention.

CARLSON:  No, I agree.  I agree. 

Well, next situation, a day and-a-half after Jacques Chirac lambasted British cuisine fairly over dinner with other world leaders, the Brits have had the last laugh at Chirac's expense.  In an upset, the International Olympic Committee today chose London over Paris to host the 2012 Summer Games, the best of times in England, a summer day of discontent in France. 

And no truth to the vicious rumor that the French had secretly surrendered before the announcement took place. 

(LAUGHTER)

CARLSON:  To me, this is amazing, because it's such a big deal in France.  Apparently, the French delegation actually cried.

MADDOW:  Yes. 

CARLSON:  Broke into tears. 

(LAUGHTER)

GASPARINO:  Isn't it great that they're doing that?  Isn't it great that the French are crying?

CARLSON:  Well, it's...

MADDOW:  There were probably tears in Rockefeller Center this morning, too. 

(CROSSTALK)

GASPARINO:  No, I bet not.  Most New Yorkers hate having—will hate having—would hate having the Olympics here.

CARLSON:  But, see, the French have never gotten over the idea that they're not the most important country in the world. 

(CROSSTALK)

CARLSON:  I don't think a lot of them know that their empire is gone. 

(LAUGHTER)

CARLSON:  I mean, this is—Chirac's political career may be over because of this. 

MADDOW:  Why aren't we talking about Madrid this way?  I mean, Madrid also got bumped out at the last minute, too.  I mean, the fact that, oh, the French didn't get it is no more...

GASPARINO:  Because people hate the French.

MADDOW:  Why is this more satisfying.... 

(CROSSTALK)

GASPARINO:  We hate the French.  That's why.

MADDOW:  ... hating the Spaniards.  I mean, why are we so obsessed with this?

(CROSSTALK)

GASPARINO:  We hate the French.

MADDOW:  And why do we hate the French? 

GASPARINO:  Because they give us a lot of reasons to hate them.  I mean, that was a stupid thing for him to say yesterday. 

(CROSSTALK)

CARLSON:  Well, also, Paris was—I mean, to be fair, Paris was the favorite.

MADDOW:  Right. 

GASPARINO:  Right. 

CARLSON:  But, I mean, the French can't conceive of other people not loving France as much as they do.

(LAUGHTER)

CARLSON:  Which is part of the reason I kind of like the French. 

GASPARINO:  And they can't conceive that people might have better cuisine. 

MADDOW:  Well, I think that....

(CROSSTALK)

CARLSON:  Well, other countries don't have better cuisine.  Let's be honest.  I mean, let's be fair. 

GASPARINO:  The Italians don't?

CARLSON:  Italians are close, yes.

(CROSSTALK)

MADDOW:  Americans can't conceive of people hating us either.  We're still wondering, why do they hate us? 

GASPARINO:  No, we don't care.  We don't care. 

MADDOW:  Why do they hate us?

GASPARINO:  That's the difference. 

MADDOW:  Oh, we do.  We just disbelieve it, is the problem. 

GASPARINO:  I don't. 

CARLSON:  I care.

MADDOW:  I think one interesting thing about this bid I think is that they need to make the Summer Games smaller...

GASPARINO:  Yes. 

MADDOW:  ... so that other cities that aren't the richest cities in the world can compete for this thing. 

CARLSON:  Right. 

MADDOW:  If it was a smaller Games, then everybody in the world...

GASPARINO:  Des Moines.  We want—we should have Des Moines.

(CROSSTALK)

MADDOW:  Then Des Moines could compete. 

GASPARINO:  Thank you. 

MADDOW:  And that would be a good thing.

GASPARINO:  Wouldn't that be a great place to have it? 

CARLSON:  That's—that's terrific.  Next, you're in Bolivia. 

MADDOW:  Exactly.   

(LAUGHTER)

CARLSON:  Coming up on THE SITUATION, President Bush is gearing up for what could be—could be? -- will be—a heated battle over the next Supreme Court justice.  So, why did he chose an actor to help push forward the eventual nominee?

Plus, news from Aruba.  What did Natalee Holloway's mother say that has most of the island in an angry uproar?  Should we even care what they think?  We'll discuss when THE SITUATION rolls on. 

(COMMERCIAL BREAK)

CARLSON:  Is it really necessary to fill Sandra Day O'Connor's seat on the Supreme Court with another woman?  A male writer in our nation's largest newspaper says it is.  Find out why when THE SITUATION continues. 

(COMMERCIAL BREAK)

CARLSON:  Welcome back. 

Time now for “Op Ed Op Ed.”  We spent the day scouring the nation's newspapers, looking for the most interesting op-eds we could find.  And we found three, to which Charlie, Rachel and I will offer our 20-second retorts.  Ready? 

MADDOW:  Yes. 

CARLSON:  Well, in today's “L.A. Times,” Rosa Brooks reminds us that, prior to the war in Iraq, Judith Miller, who went to jail today, reported extensively about Iraq's weapons of mass destruction program. 

Quote: “It's easy to forget that Miller's questionable journalistic ethics left her in the doghouse only a year ago.  Indeed, when it came to leaks, the only people busier than White House staffers last year were the denizens of 'The New York Times“ newsroom, who fell all over themselves to excoriate Miller to competing publications.”

And it goes on to quote a bunch of catty remarks from her colleagues. 

This—you know, you're seeing a number of these editorials or op-eds in the last couple days saying she was wrong about WMD; therefore, you know, maybe it's not a good idea for her to go to jail, but she kind of deserves it is the implication.  I guess, just for the record, I would point out that everyone was wrong about WMDs.

GASPARINO:  Absolutely.

CARLSON:  Not just Judy Miller, but me and you and you and everybody in the Western world, including Hillary Clinton. 

GASPARINO:  That's right. 

CARLSON:  And some people were more wrong than others.

GASPARINO:  John Kerry. 

(CROSSTALK)

CARLSON:  Admittedly.  But everybody believed information that was wrong.

GASPARINO:  Right. 

CARLSON:  And to single her out seems to be letting your politics get in the way of your humanity.

GASPARINO:  Right. 

CARLSON:  She went to jail.  It's a big deal.  You should feel sorry for her. 

This was a really snotty editorial, I thought.  I mean, Judy Miller did a really good thing today.  I mean, she basically took one for this editorial writer.  She took one for me.  And, you know, to really attack her like this, to kind of—listen, reporters also do make mistakes.  You know what I'm saying?  And she wasn't the only one. 

And I think she was basically a little too harsh. 

MADDOW:  I think that Judy Miller's reporting for “The Times” in the lead-up to the war was atrocious.  And she's the one who not only got it wrong, like a lot of people did, but she actively promoted the Ahmad Chalabi B.S.  That should have got her fired from “The Times.”  I'm no fan of Judy Miller. 

I'm a fan of her today because of what she did.  She did the right thing in regards to protecting your source.  You always have to err on the side of protecting the press.  But that doesn't excuse the fact that she was wrong about weapons of mass destruction. 

CARLSON:  But—right.

MADDOW:  It's just... 

(CROSSTALK)

CARLSON:  But you'll concede they're separate.

MADDOW:  They're totally separate issues, but she should have been fired for that report. 

(LAUGHTER)

GASPARINO:  But you're not suggesting she's the one who brought us to war, right? 

MADDOW:  No.  But I do believe she did more than any other reporter.

GASPARINO:  And that—that editorial suggested that.

MADDOW:  She did more than any other reporter in this country to promote Ahmad Chalabi as a source, which hurt our country. 

(CROSSTALK)

CARLSON:  All right. 

Well, speaking of op-eds that are off-base, Tony Mauro writes in “USA Today” today that the president, Bush, ought to, indeed, basically has to, appoint a woman to the Supreme Court to fill the open seat. 

Quote: “Ginsburg should not have to wait a dozen years to be joined by another woman.  She should not have to wait for a moment, in fact.  President Bush ought to appoint a woman to succeed O'Connor.”

Why?  I mean, there's no evidence that women are better legal minds than men?  There's certainly no evidence Ginsburg and O'Connor were the sharpest minds on the Supreme Court.  No one I know thinks that they were.  They're not—right?  And so, what is the—I mean, what is the difference exactly?  What does a woman bring to the court that a man doesn't?  I didn't think they were all that different. 

MADDOW:  I think it's a little uncomfortable to think about a court of eight men and one woman deciding cases on abortion, deciding cases on marriage, deciding cases on all these other things that are very heavily gendered, that have all these women and men components to them.

And if we have an eight-man Supreme Court, I think that's a little embarrassing for us as a country.  When Reagan picked O'Connor, he plucked her from obscurity. 

CARLSON:  Yes. 

MADDOW:  She wasn't the most qualified jurist in the country.  But he decided it was important to have a woman on the court.  It's important to have more than one woman on the court, I think.  But whether or not Bush—he has a litmus test on abortion.  And whether or not he can find enough anti-choice women to consider for this is an open question. 

(CROSSTALK)

CARLSON:  I wish he did have a litmus test on it.

GASPARINO:  I mean, it would be nice to have no quotas affect the Supreme Court nominees, as far as I'm concerned. 

And I think most Americans fall in that category.  Listen, his first -

·         it would be nice to get a woman on the court, I believe.  But his first choice is essentially to put a conservative in there, somebody that reflects his views, somebody that reflects the views of the American people, at least 53 percent of them. 

CARLSON:  Yes, I don't get—in general, I like women better than men.  But I just don't understand why it's important to have a certain number of women on the court.  But..

MADDOW:  It would be good for the country to have...

(CROSSTALK)

CARLSON:  Yes.  I'm just not sure how.

Anyway, David Oscar Markus writes in “The Miami Herald” that race bias needs to be eliminated in jury selection—quote—“Any trial lawyer who says he does not consider race as a factor when selecting a jury is not telling the truth.  The problem with selecting juries is that the system is geared for relying on stereotypes and prejudice.”

Boy, is that true.  And this has been going on really since Edward Bennett Williams brought Joe Louis into the courtroom during the Jimmy Hoffa trial.  And the problem with playing the race card is, it works.

(CROSSTALK)

CARLSON:  It works in a lot of cases.

(CROSSTALK)

CARLSON:  That's right.  And it's depressing.  The problem is, how can you end peremptory challenges?  That's what—you know, the process by which you strike certain jurors for certain reasons.

GASPARINO:  Or for no reasons, I think.

CARLSON:  Or for no reasons.

GASPARINO:  Right. 

CARLSON:  You get a certain number.  It's kind of hard.

I think we ought to make it socially unacceptable to play the race card.  You do it, you don't get a TV show after...

(CROSSTALK)

GASPARINO:  ... Johnnie Cochran.

(CROSSTALK)

CARLSON:  No, we don't.  We give—Johnnie Cochran got a TV show and was this hero. 

GASPARINO:  Well, he won the case, too.

CARLSON:  After that.

Yes, but he won it in an underhanded way that hurt America. 

(CROSSTALK) 

GASPARINO:  Well, I mean, listen, I think the question is, how do you go about this?  And I think striking these peremptory challenges is the way to go. 

And, you know, what's really interesting is that, you know, we have a case right now where basically people are being put to jail.  I think juries are biased against—racially biased.  And I think that's a big problem right now. 

MADDOW:  I think that the racial makeup of the jury is one tiny little piece of the very racist aspect of criminal justice in this country.

GASPARINO:  Right. 

MADDOW:  And so, you could make the jury color-blind.  You could say, we don't know what the race of the jury is.

CARLSON:  Right.   

GASPARINO:  Yes.  Why do we have to know the race?

(CROSSTALK)

MADDOW:  It only makes us—it only makes sense to do that if you can also make the race of the victim color-blind, if you can make the race of the defendant color-blind.  If we could—if we could excuse race from every aspect of criminal justice, great.  But until we can do that...

(CROSSTALK)

CARLSON:  Well, that's actually not a bad idea. 

MADDOW:  It doesn't make sense to only do it for juries. 

(CROSSTALK)

CARLSON:  But, first of all, I mean, I think actually that's not a bad idea, to just make it a race-neutral.  I mean, you put people behind screens or something.  But why not start with the jury?  Or start with the defendant.  I mean, who cares?

MADDOW:  I don't think you can start with the jury until—unless you do everything else, too, because race does affect how we judge people. 

CARLSON:  All right.  Thank you both. 

MADDOW:  Thanks.

CARLSON:  Coming up, Judy—Judith Miller does time for refusing to rat out of source.  After the break, a University of Virginia law professor joins us to explain why Miller got what she deserved, maybe even what she wanted. 

(COMMERCIAL BREAK)

CARLSON:  Welcome back. 

We're still talking about the big story of the day, “New York Times” reporter Judy Miller being sent to prison.  In today's “L.A. Times,” Rosa Brooks writes that—quote—“By many accounts, Miller is rude, competitive and heartless, willing to pursue a hot story at any price.”  Brooks also theorizes that Miller, like Martha Stewart, might emerge from jail with her reputation at a new high. 

Joining me to share her views on the case is University of Virginia Law professor Rosa Brooks. 

Thanks a lot, Ms. Brooks, for joining us. 

ROSA BROOKS, CONTRIBUTOR, “THE LOS ANGELES TIMES”:  Hi, Tucker. 

Pleasure to be here. 

CARLSON:  Thanks.

I just want to read again what you wrote.  You said that her co-workers don't like her.  By many accounts—quote—“Miller is rude, competitive and heartless, willing to pursue a hot story at any price.

That's the cattiest thing I think I've read this week.  What does that have to do with Judy Miller and her going to jail, A?  And, B, if she were a man, you wouldn't have written that, would you? 

BROOKS:  Oh, I don't think that is true.  I'm catty to everybody.  I'm an equal-opportunity catty person, Tucker. 

I think the issue here—I don't know Judith Miller.  I think she's got a lot of guts.  But the issue here is that, a year ago, everybody was concerned about accountability issues.  She was relying on anonymous sources and using confidentiality to cloak the fact the often the stories she was getting were very thin.  And, in fact, a lot of the ones on WMD in Iraq turned out to be completely false.

CARLSON:  Well, wait a second.  You're using anonymous sources right here to say that she's rude, competitive and heartless.

(CROSSTALK)

BROOKS:  You bet.  You live by the anonymous source.  You die by the anonymous source. 

(CROSSTALK)

CARLSON:  So, it's OK for you, but not for her?

BROOKS:  No.  I'm noting an irony.  I mean, this is not for the truth value of that.  I think there's a real irony. 

I think that what that gets to is precisely what we ought to be concerned about, which is accountability of sources and what's a journalist's duty.  I'm actually troubled by the fact that the article that I was reporting on in that column, which was an article in “New York” magazine, used primarily anonymous sources.  I think it's very problematic to rely heavily on anonymous sources.  I think that's something that Judith Miller is famous for.  So, it's a little hard to have a huge amount of sympathy for her, hoist on her own petard here.

CARLSON:  OK.

BROOKS:  But I think that that's what we want to keep in mind when we are figuring out how to think about the issue at stake right now. 

(CROSSTALK)

CARLSON:  Well, you're obviously upset—and maybe rightly—about her reporting before the war in Iraq. 

You say that she was essentially used by proponents of the war and Ahmad Chalabi, etcetera, etcetera.  That may be true.  I don't know.  What does that have to do with her going to jail today?  The implication seems to be, she deserves to go to jail because her reporting on Iraq is bad? 

BROOKS:  No, not at all.  Actually, I'm a liberal, Tucker.  I feel sad when anybody goes to jail. 

CARLSON:  You don't seem to. 

BROOKS:  I really—I do.  I do, actually. 

And I think she has a lot of courage.  She's sticking to her guns.  I think the judge should have honored her request to go Danbury.  I think it's unnecessarily punitive to put her in the jail he put her into.  That said, I think what we see here is Judith Miller doing the same things, that we have Judith Miller being used by sources who are not acting in the public interest.  And covering for them is not in the public interest either. 

CARLSON:  Well, wait a second.  If...

BROOKS:  In both WMD and the current case...

CARLSON:  If...

BROOKS:  We have a situation where the public interest in knowing who is saying this kind of stuff really far outweighs any claim of journalistic privilege.

CARLSON:  OK.  But—but let's just go back to something you said a second ago.  If you're such a liberal, such a bleeding heart, someone who cares about other people and is empathetic.

BROOKS:  I cry easily.

CARLSON:  Yes.  Well, even—if that's true—and I don't believe you—why are you attacking her personally? 

BROOKS:  I'm not attacking her personally. 

(CROSSTALK)

CARLSON:  Of course you are.  You said she's—you said she's...

(CROSSTALK)

CARLSON:  What do you mean you're not attacking her personally?

(CROSSTALK)

CARLSON:  You said that she's rude and her co-workers don't like her.

BROOKS:  I'm reporting to you what the news media was doing.

This is the irony.  This is what I'm interested in, Tucker.  This is what just astonishes me here, is that, a year ago, not just her own colleagues, but the rest of the journalistic world, were just knocking themselves out to say, Judy Miller has questionable ethics.  What was she doing relying on these anonymous sources and not telling us who they were to sell us a bill of goods about WMD in Iraq?

And now, all of a sudden, the very same people who were busy trashing her a year ago for doing that, when she was down, are suddenly eager to rally around her and say, God bless the anonymous source. 

CARLSON:  Well, wait a second.  Because they're...

BROOKS:  That's a little bit weird.

CARLSON:  They are two separate things entirely. 

I mean, I may be a lousy bowler, but a great tennis player.  I mean, they have nothing to do with each other at all. 

BROOKS:  No.  I...

(CROSSTALK)

CARLSON:  I want to go to something you said at the end of the piece...

BROOKS:  Sure.

CARLSON:  ... which really troubled me. 

You said: “I have a”—quote—“I have another theory.  Miller is no fool.  She understood the lesson of the Martha Stewart case.  When you find yourself covered with mud, there's nothing like a brief stint in a minimum security prison to restore your old luster.” 

What a nasty thing...

BROOKS:  It definitely seems to be true.

CARLSON:  But what a nasty thing to write.  She's married.  She's near 50. 

BROOKS:  Well, you know... 

CARLSON:  She doesn't want to go to jail.  Why are you implying she wants to go?

BROOKS:  No.  She does want to go to jail. 

Tucker, she had absolute choice.  Her fate was in her hands.  She does want to go to jail.  I think she is really mistaken.  I think that journalistic ethics do not require her to be keeping this information confidential.  I understand that her source has actually waived confidentiality. 

(CROSSTALK)

CARLSON:  Well, wait.  Wait.  Wait.  Stop.  Stop.  Stop.

(CROSSTALK)

BROOKS:  There is no ethical obligation for her to go to jail.

CARLSON:  First of all, you don't—you have no way of knowing, unless you know her source personally and were told this by him. 

BROOKS:  That is certainly the submission that the prosecutors made to the court. 

CARLSON:  Well, that—well, you're believing the prosecutor over a “New York Times” reporter.  That's your problem. 

BROOKS:  No. 

(CROSSTALK)

BROOKS:  ... believing the court. 

CARLSON:  hold on a second.  You're not a reporter.  It's hard—it seems to me...

BROOKS:  I'm just an opinion columnist. 

(LAUGHTER)

CARLSON:  No, no, no.  No, but, look, for you to say it's voluntary, her going to prison, in order...

BROOKS:  It's absolutely voluntary, Tucker.

CARLSON:  It's not voluntary.

BROOKS:  And, you know...

CARLSON:  She would have to betray what she does for a living and betray the person...

BROOKS:  Nonsense.  That is just nonsense.

CARLSON:  ... who put his trust in her.

BROOKS:  She's not betraying what she does for a—think about what -

·         why do we have any journalistic privilege?  Why do any of us think it's important?

We think it's important because we think that journalists have obligations to the public.  We want people to tell journalists things that the public has a real interest in knowing.  But to the extent that the privilege is misused, to the extent that that privilege is abused by a source to propagandize, to retaliate political against—politically against somebody, to tell lies, to give out misinformation, they do not have a privilege, in my mind. 

CARLSON:  All right. 

BROOKS:  And I think that this is something where even a lot of journalistic watchdog groups, like Fairness and Accuracy in Reporting, called on...

(LAUGHTER)

(CROSSTALK)

BROOKS:  ... to cooperate with...

(CROSSTALK)

BROOKS:  ... for a reason.

CARLSON:  I wouldn't say Fairness and Accuracy in Reporting is a watchdog group.  It's a left-wing pressure group.

But, anyway, look, Rosa Brooks, I didn't think your column was defensible.  But did you a pretty game job of defending it.  I'm impressed, at least on debate points.

BROOKS:  Well, Tucker, I'll tell you one thing.  I'm looking forward to getting some terrific reporting from Judith Miller on prison conditions, which is an important issue.  And she is exactly the right person to do a... 

CARLSON:  Oh, the poor woman.

BROOKS:  Hard-hitting reporting on that.

CARLSON:  I hope you get more liberal and start feeling sorry for her. 

But, anyway, Rosa Brooks, thanks for joining us.  I appreciate it.

BROOKS:  Thanks for—thanks for having me on, Tucker. 

CARLSON:  Coming up, the world's largest beer brewer

(COMMERCIAL BREAK)

CARLSON:  Welcome back to the second half hour of THE SITUATION. 

Sitting in for Wolfman Jack, I'm Tucker Carlson. 

Plenty left to chew on, so let's dive back in with Rachel Maddow and Charlie Gasparino. 

Rachel, you're a self-described liberal. 

MADDOW:  That's right.

CARLSON:  My whole conception of liberalism is changing.  Rosa Brooks, who is pretty charming, I'll admit, but described herself as a liberal, while talking about the nastiest column, most vicious column I've read in a long time, basically gloating about this woman, this 50-some-year-old woman going to jail.  What's liberal about that?

MADDOW:  Well, she was talking about the fact that Judith Miller was a bad reporter for the “New York Times,” in terms of her lead-up to the war, and that makes people dislike her.  And so now it's ironic that she's the great martyr.  I think that that point was separate from...

(CROSSTALK)

GASPARINO:  She said more than that.  She basically said it's her choice to go to jail right now, that this is essentially an easy decision.  She also implied very heavily that she's doing it to be a martyr, to make money out of this, which I thought was reprehensible. 

MADDOW:  Well, she thinks that she should have given up her source for the greater cause of pursuing...

(CROSSTALK) 

GASPARINO:  Is she a journalism professor?  That's what I want to know. 

CARLSON:  No.  She's...

GASPARINO:  Because if you're a journalistic professor, and you say something like that, you should be... 

(CROSSTALK)

CARLSON:  Well, don't be surprised when you hear them say that, because there really is no lower species on this planet than journalism professors, I'm sorry to say that. 

GASPARINO:  I know...

(CROSSTALK)

GASPARINO:  ... they are very nice people. 

CARLSON:  No, there are some—I know some who are very nice, too.  But you will here some—and I'm sorry I said that—but it's true.  Some of them will come out tomorrow and defend this.  You watch, because they're letting their politics override their common sense and their compassion.  They hate Bush, and so they somehow think Judy Miller is responsible for the Iraq...

(CROSSTALK)  

MADDOW:  No.  Listen, reasonable people can disagree about the extent of journalistic privilege when you weigh it against a grand jury summons.  I happen to think that Judith Miller should not have been...

GASPARINO:  Let's face it.  She did not write the story.  Let's also throw that into the mix. 

(CROSSTALK)

MADDOW:  There are a number of things...

(CROSSTALK)

MADDOW:  But the question remains:  Who leaked Valerie Plame's name? 

That's still the...

(CROSSTALK)  

CARLSON:  I think the question remains:  Who cares? 

GASPARINO:  Yes.

MADDOW:  Everybody who cares about whether or not about a national security...

(CROSSTALK)

GASPARINO:  Rachel, do you think all this is worth it?  Was all this worth it?

MADDOW:  You can't wipe this away. 

GASPARINO:  Was all this worth it, what's going on now, what they're doing to journalism?  Do you think it's all worth it? 

CARLSON:  All right.

MADDOW:  Press freedom and this crime are two separate things.  And I have an opinion on both of them. 

(CROSSTALK)

CARLSON:  ... we have an e-mail on this show.  We have got to get moved onto the next thing.  Very quickly, if you at home, anybody watching, can demonstrate a single way in which American national security was compromised by Valerie Plame's...

(LAUGHTER)

CARLSON:  Luckily, you'll be back tomorrow, Rachel Maddow.  But e-mail it, if you know, because I don't. 

Next situation, the battle for Supreme Court.  President Bush says there's, quote, “no litmus test for candidates, not even abortion.”  He's offered no timetable for when he might make his choice, but there's one choice he's already made. 

Former Republican Senator Fred Thompson, perhaps best known for playing a D.A. on “Law and Order” will help in the push to get the nominee approved by the Senate.  Thompson retired from the Senate in 2002 to pursue an acting career, the aforementioned acting career. 

Bush has no litmus test.  OK, great.  The other side has a litmus test, however, unapologetically.  John Kerry had a litmus test.  He said during the 2004 campaign—you're already hearing congressional Democrats say, you know, Alberto Gonzales would be great.  Why?  Because he supports Roe v. Wade. 

There's only one issue that Democrats are interested in, and that's protecting Roe v. Wade.  And I think it's totally legitimate, and in fact laudable, if the president were to come out and say, “You know what?  Roe v. Wade is bad law.  I'm not nominating anyone who is for it,” period. 

MADDOW:  If you flip a coin ten times and it comes out heads every time, do you start to think the coin is loaded?  If you flip a coin 50 times—if you flip a coin 100 times, it's heads every time?  How about if you flip a coin...

(CROSSTALK)

CARLSON:  It should be loaded.  It should be loaded.

MADDOW:  Bush has appointed more than 200 judges in his term.  Not a single one is pro-choice.  If you tell me he doesn't have a litmus test...

CARLSON:   That's why people voted for him.

(CROSSTALK)

MADDOW:  ... you are believing a lie.  He has a litmus test. 

CARLSON:  I hope he does have a litmus test.  He was elected...

MADDOW:  Yes, but he can't take the moral high ground...

(CROSSTALK)

CARLSON:  But hold it.  Here's my point.  It's not the moral high ground to say you have no litmus test.  He was elected on a platform of ideas.  It's fair for him to appoint judges who reflect those ideas. 

MADDOW:  So should he admit that he does have a litmus test then? 

Because he does.

CARLSON:  I think he should.  And I hope he does.

GASPARINO:  I don't think he should.  I mean, it's good public relations not to. 

(CROSSTALK)

MADDOW:  So just lie?

(LAUGHTER)

(CROSSTALK)

GASPARINO:  I think it's good.  Well, you're not really lying.  You're spinning the truth.  You guys know how to spin. 

(CROSSTALK)

MADDOW:  Two hundred heads, sure. 

(CROSSTALK)

GASPARINO:  Listen, I think it's good that he put Fred Thompson in there, because he's an actor.  And he's going to sell, I believe, a very conservative choice. 

CARLSON:  He is a charming guy.

MADDOW:  Fair enough.  He's an actor.  That's who you need.  If we're going to be telling lies, we should have...

(CROSSTALK)

CARLSON:  No, he was a senator.  He was a lawyer.  He was on the Watergate Committee... 

(CROSSTALK)

GASPARINO:  “I did not have sex with that woman”?

MADDOW:  I'm all for Fred Thompson, but not for lying.

(CROSSTALK)

CARLSON:  All right.  Next situation, trouble in paradise.  Still no trace of Natalee Holloway, five weeks after she vanished on vacation in Aruba.  The finger-pointing is well under way.  Protesters there are fighting mad at the missing teen's mom.  They specifically object to Beth Holloway Twitty's statement that Aruba is letting criminals go free.

GASPARINO:  Well, it's so horrible that she said that.

CARLSON:  No, it is...

(CROSSTALK)

CARLSON:  It's by turns amusing, however this whole thing—my favorite sign today was the sign outside in protest against Mrs. Twitty that said, “Respect our Dutch laws or go home.” 

(LAUGHTER)

CARLSON:  I'm not sure what there is—they seemed to have detained virtually everyone on the island of Aruba.  I can see why the mother would have some concerns about the Aruban justice system.

MADDOW:  There are military F-16s flying grid patterns over the island.  What else do you want these people to do?

GASPARINO:  Well, no, and they started really late, though.  I mean, I think there's been legitimate criticism about the criminal justice system, that they waited too long, and that they, you know, may have let the killers go, or people that knew about this go.  I mean, I think she's making—I think the woman made a legitimate point.  I mean, these protestors are insane.  I mean, you have to admit that.

MADDOW:  These protesters are offended that she's impugning the Aruban justice system. 

(LAUGHTER)

GASPARINO:  Can you imagine?  She's impugning the Aruba justice system. That can't... 

(CROSSTALK)

MADDOW:  But listen, if you live in Aruba, you'd be mad, too.

GASPARINO:  Oh, really?  No, I wouldn't.  I think I'd be drinking a margarita right now.

(CROSSTALK)

CARLSON:  Let her make a—Rachel, I want to hear you defend the Aruban justice system.

MADDOW:  No, but listen, the fact is...

(CROSSTALK)

GASPARINO:  We all know it's one of the hallmarks of criminal justice across the...

MADDOW:  You can make fun of them all you want.  But let me tell you one point.  The fact that the mystery is not yet solved does not mean that the people trying to solve it suck. 

GASPARINO:  Oh, yeah?  Oh, yeah?

MADDOW:  It just means that the mystery has not been solved.

GASPARINO:  It means they do suck, I've got news for you.

(LAUGHTER) 

MADDOW:  No, are there any unsolved murders in the United States? 

GASPARINO:  Oh, come on.

MADDOW:  How many unsolved murders in the U.S., how many F-16s are flying grid patterns over the crime scene? 

GASPARINO:  That just shows that they suck.  They're using an F-16 to find a murder suspect?

CARLSON:  OK...

MADDOW:  They may very well, but we don't know.

GASPARINO:  Fly a helicopter.

CARLSON:  More on the Aruban justice system tomorrow night, but now...

MADDOW:  Did you call Charlie immoral? 

CARLSON:  A pot party at a beer factory may go unpunished.  Anheuser-Busch may have to rehire five employees it fired for getting high on the job.  They busted them using hidden cameras in a break area.  A federal appeals court ruled that not telling the employees' union about the cameras was an unfair labor practice.

Here's my question, Rachel Maddow, how the hell is the federal government involved in hiring and firing decisions at this level?  It's Anheuser-Busch's beer factory.  They don't you want you getting a high—you know, getting high in the elevator maintenance room.  They have a right to fire you.  What is the federal government intervening for? 

MADDOW:  The federal government is intervening because unions have rights. 

GASPARINO:  Do you have a right to smoke pot at work?

MADDOW:  The union has said that, if you're going to have hidden cameras, we need to know about it.  And that's part of labor law, that they get to have that privilege. 

GASPARINO:  And tell everybody that they're hidden.

MADDOW:  Yes, but you don't get to know where they are.  I mean, it happens to be...

GASPARINO:  Wait a second, don't they...

MADDOW:  ... that's part of labor law.

(CROSSTALK)

MADDOW:  And so therefore, the federal government is protecting labor laws. 

CARLSON:  No, but I understand that.  But back up just two steps.  Do you think that Anheuser-Busch, whether told about the cameras or not, ought to have a right to fire people for smoking pot at work if they want to? 

MADDOW:  They can fire people for smoking pot at work. 

CARLSON:  But they can't. 

MADDOW:  But they can't have hidden cameras without telling the union that...

(CROSSTALK)

GASPARINO:  It's not like Anheuser-Busch had a hidden camera in the bathroom, OK?  They had it in a public place, where you know you're being watched anyway, you know?  I mean, basically...

(CROSSTALK)  

CARLSON:  Apparently, they caught seven employees urinating and/or sleeping on the roof of the Anheuser-Busch factory. 

MADDOW:  Well, listen, I'm in a union.  And if my union has negotiated that I have to be told if there are hidden cameras in my workplace, then if the workplace violates that, yes, I want the government to step in, if that's my right. 

CARLSON:  Well, I'm in a union, too.  Not by choice, because I have to be, and I resent it.  And I just want to say clearly, I don't want to be in a union.  You should be in the union if you want to.  If you don't want to be, you shouldn't have to be. 

(CROSSTALK)

MADDOW:  Well, I resolve to give you a pass because you're not helping.

GASPARINO:  But you shouldn't be smoking pot at work.

CARLSON:  Yes, or sleeping on the roof.

GASPARINO:  Or urinating...

(CROSSTALK)

CARLSON:  All right.  Charlie Gasparino, Rachel Maddow, thank you both. 

MADDOW:  Thank you, Tucker. 

Coming up, we're all for (INAUDIBLE) without clothes, but should teenagers be allowed to go to summer camp without clothes, and without their parents' consent?  Get your mind out of the gutter. 

Plus, President Bush finds himself out of breath on his birthday and thereby finds himself in an unusual place for a head of state.  That, of course, would be on the “Cutting Room Floor,” coming up.

(COMMERCIAL BREAK)

CARLSON:  Well, it's time once again to welcome back “The Outsider.”  That's a man from outside the world of news who ought to know better but chooses instead to play devil's advocate to my logic and reason on a series of stories.  Joining us now, ESPN radio and HBO boxing host, the great Max Kellerman. 

MAX KELLERMAN, ESPN RADIO HOST:  Thank you very much. 

CARLSON:  All right, Max.  I don't even know how you're going to defend this first one. 

KELLERMAN:  Well, that's what I'm here, to amaze you, amaze and surprise you, Tucker.

CARLSON:  Thank you.  You're like Houdini. 

First up, a peculiar child custody case unfolding now in Iowa.  Kelly Buffalo, a member of the Meskwaki Indian nation, had arranged for her son to be adopted by a white couple.  But her tribe took custody of that child instead, asserting that the Meskwaki privilege under state law to protect a cultural heritage of the child and tribe. 

A tribal judge subsequently granted full custody to the mother, but she still needs consent from the tribal council before pursuing adoption.  It's a long way of saying they think this child should not go outside the tribe to a white couple.  It's essentially a racist argument they're making. 

It brings up to points.  One, the point of adoption always should be, what's in the best interest of the child?  There's a willing couple wanting to adopt.  They should be allowed to.

Second, whose to say what it is to be Indian, or white, or for that matter, any other race?  This child's father is not Indian.  Is the child Indian?  Do you get a blood test at that point?  I mean, it gets very creepy at a certain point. 

KELLERMAN:  It is racist, certainly.  However, Indian tribes are semiautonomous nations. 

CARLSON:  Yes. 

KELLERMAN:  Now, they're not allowed to declare war on another country, but they are allowed to govern their own populous. 

CARLSON:  And sell tax-free cigarettes. 

KELLERMAN:  Yes, among other things, and build casinos.  They can't make a treaty with a foreign nation.  But they can say, “Our citizenry is allowed or not allowed to do this or that.”  And in this case, they're saying, “You can't put this child up for adoption to a white couple.”

We may find it abhorrent, but it's up to them.  You know, this is not a western culture. 

CARLSON:  Then this isn't really the argument, but I'd just ask you a quick question:  Do you think it's a good idea for America to allow foreign semiautonomous nations to exist within our territorial boundaries, even given all the horrible that happened to the American Indians over the years?  Is it good for us?  Is it good for the Indians?  No.  It's terrible!

KELLERMAN:  Well, maybe not, but that is the law.  But I do want to address another point you brought up about the mother deciding where she wants the baby to go.  Not that I disagree with the fact that a citizen of the United States of America should be able to make that kind of choice.  However, do rich people have an advantage in adoption over poor people? 

CARLSON:  Huge advantage. 

KELLERMAN:  Should they have a huge advantage? 

CARLSON:  Maybe not, but they have advantages in almost every other way, and that's kind of the deep unfairness of life. 

KELLERMAN:  Yes, it is, and more reason to address it. 

CARLSON:  Maybe, not this way though. 

KELLERMAN:  Well, the kids, Max, as you may know, like to wear their blue jeans extra baggy or skin tight.  But a new dress code proposal at Detroit Southfield High School—actually outside Detroit—wouldn't allow either one because it would ban denim, all denim outright. 

Also on the hit list are tank or halter tops, see-through blouses, pajamas, do-rags, and sun glasses.  It's all part of Max Kellerman's look.  A school board member said the dress code addresses poor academic performance and curbs clothing with double meanings, such as gang affiliations.

KELLERMAN:  I show up in a suit every day for your show, Tucker. 

CARLSON:  You look very spiffy. 

KELLERMAN:  Thank you.

CARLSON:  Here's the problem.  A dress code can only be enforced subjectively.  It's like pornography.  I don't know what's unacceptable dress.  I can't describe it, but I know it exactly when I see it. 

But in order to enforce it that way, it takes courage.  You need to be willing to make a subjective judgment.  If I'm a teacher, I need to be courageous enough to say, “I'm sorry, that's not acceptable.  Go home and change.”

They are unwilling to do that, so they attempt to codify it. 

KELLERMAN:  Right, that's a very interesting point.  I'm against dress codes, period.  I always felt as a kid in school—and I went to a public school in New York—but I felt that schools where I heard that they had dress codes, it felt fascist to me.  I don't know. 

I know you're not an adult, and you're still a minor.  But it just feels like this is America, you should be able to wear what you want.  That's really the parents' decision.  You're always talking about the parents getting involved. 

However, in this case, if you are to have dress codes, what's wrong with codifying it?  What's wrong with saying, “You know what?  The idea that when you know pornography when you see it is too subjective, and therefore we must have some objective criteria.”

CARLSON:  I'll tell you why:  Because it's silly.  It's dumb.  Part of the rationale behind this was our academic standards will rise as the kids stop wearing jeans.

KELLERMAN:  Another part of the rationale was the signal gang affiliations with colors of bandanas and stuff, and they do.

CARLSON:  Southfield High School failed two years in a row to meet federal achievement standards.  I don't think banning jeans is going to make them make the grade. 

KELLERMAN:  I agree. 

CARLSON:  Maybe it will. 

Well, there's a nude situation going on in Virginia that could affect a lot of kids, or some kids any way, going to summer camp this summer.  A federal appeals court in Richmond has called into question a 2004 state law requiring parental supervision at a nudist camp for juveniles. 

The American Association for Nude Recreation—yes, there is such a thing—and the White Tail Nudist Campground content that the law violates their free speech and cramps their ability to spread their philosophy of nudism. 

This is like a joke.  Send your kids unsupervised to a nudist camp? 

Do I have to say more? 

KELLERMAN:  Yes, yes, I am forced to defend this.  OK, the parents gave their permission.  Now, I understand there's a distinction between an R and NC-17 movie.  What our government is saying, essentially, is there are certain standards which, even if the parents think it's OK, we're saying we don't accept this as a society. 

However, I think—and 11-year-olds I'm not going to defend.  Eleven-year-olds should be with their parents.  However, the idea that a child is under 18 I've always found arbitrary.  I know people who are 15 who seem adult, people who are 30 who seem like children. 

And for instance, in a state like Kentucky, a 15-year-old has a lot of the rights of an adult, and in the state like New York, they don't.  Who's to say New York's right and Kentucky's wrong? 

CARLSON:  I am. 

KELLERMAN:  Why? 

CARLSON:  I'm here to tell you—the point is...

KELLERMAN:  You just said the dress code couldn't be codified because it's subjective, Tucker. 

CARLSON:  I am telling you if you're willing to send your kid, your child unsupervised to a nudist camp, you're negligent. 

KELLERMAN:  You're not ashamed of your body. 

CARLSON:  I think children should be ashamed of their bodies.  And I think that people who are really super-interested in seeing children's bodies naked ought to be on some kind of list of freaks.

KELLERMAN:  Do you teach kids that?  “Be ashamed of your body.”

(LAUGHTER) 

CARLSON:  A lot to be ashamed of.  No, I don't.  But I still think it's creepy.  If you're agitating for kids to have the right to go unaccompanied to a nudist camp, I think your name should be on a list somewhere.

KELLERMAN:  And once again, I agree.

CARLSON:  Max Kellerman, the great Max Kellerman, thank you.

KELLERMAN:  Thank you very much. 

CARLSON:  Ahead on THE SITUATION, from mean girl to lean girl.  What is going on with the ever-shrinking Lindsay Lohan?  How is one Web site trying to beef her up?  The answer, as usual, lies on our “Cutting Room Floor.”

(COMMERCIAL BREAK)

CARLSON:  Welcome back.  It's that time again, time to sweep up the “Cutting Room Floor.”  All the stories we couldn't get to in the show, Willie Geist has brought them to us—Willie?

WILLIE GEIST, PRODUCER:  Hey, Tucker, I have to say watching Max Kellerman defend 11-year-old nudist colonies is one of the great pleasures of my young life. 

CARLSON:  It really was.  It was the high point of the show.

(LAUGHTER)

GEIST:  We'll get right to it, and we'll tell you why Lil' Kim is a lot like Judith Miller.  Explanation will come...

CARLSON:  First, I'd have to discover who Lil' Kim is. 

GEIST:  You'll find out shortly.

CARLSON:  All right.

Well, the Queen of Denmark is no Marilyn Monroe, but she was singing “Happy Birthday, Mr. President” to George Bush today, though not in a throaty voice.  President Bush was surprised at lunch with a giant cake for his 59th birthday.  As you can see, he had a little trouble blowing out all 59 candles.  The president was visiting Copenhagen before traveling to the G-8 Summit in Scotland today. 

GEIST:  Fifty-nine-years-old.  They grow up fast, don't they, Tucker? 

(LAUGHTER)

GEIST:  Did you know that he shares the same birthday—same day—as Sylvester Stallone? 

CARLSON:  I had no idea.

GEIST:  Who's the greater American hero?  That's a good question.

CARLSON:  Yes.

GEIST:  Rambo? 

CARLSON:  I am not going to defend Sylvester Stallone. 

All right.  The celebration in London today over landing the 2012 Summer Olympics was tempered by the news that shared combs and brushes have been banned from the British House of Commons.  The ban is part of an effort to curb the spread of head lice.  Leaders want to rid the bathrooms of the skanky combs politicians have been sharing for centuries now.  One lawmaker fumed, saying, quote, “Health and safety have run riot.  It's lunacy!”

GEIST:  Only the British would be “fumed” that they cannot share combs.  “Why can't we use the same toothbrushes, as well?  This is an outrage!”  What are they talking about?  Don't share the combs. 

CARLSON:  And now for our Lil' Kim story.  Not the North Korean Lil' Kim, the singer Lil' Kim.  She's a lot like Judith Miller when you think about it.  She tried to protect someone, and now she's going to jail because of it.  The raunchy rap diva was sentenced today to 366 days in jail for lying repeatedly to a grand jury to cover for friends involved in a gun fight outside a New York radio station.  The judge spared Kim the three year, seven month sentence sought by prosecutors. 

GEIST:  You know, she is, the more I think about, like Judith Miller, except I don't think she wears pasties in public, which Lil' Kim does.

CARLSON:  Does she really?

GEIST:  Kind of an important distinction.

CARLSON:  I've got to brush up on my Lil' Kim facts. 

GEIST:  You should.  We'll talk after the show.

CARLSON:  There's no “t” in Lil', which is a lil' weird.

GEIST:  Yes.

CARLSON:  All right.  Lindsay Lohan is the grand marshal of the parade of young Hollywood starlets who become startlingly skinny lately.  The 19-year-old actress says she's just shed her baby fat.  But her fans are demanding that she eat something. 

The Web site feedlindsay.com has a petition urging Lohan to, quote, “pick up a sandwich and eat it.”  The site also offers a “Feed Lindsay” line of t-shirts, stickers, and baseball caps. 

GEIST:  You know, Lindsay says she's shed the baby fat, and it's because of a strict fitness regime.  I know people who have been on that regime.  It's dangerous and expensive. 

(LAUGHTER)

CARLSON:  It's not Kabbalah?

GEIST:  No.

CARLSON:  OK.

Well, there are die-hard sports fans, and then there's James Henry Smith.  Smith died of cancer last week, but that didn't stop the rabid Pittsburg Steelers fan for rooting for his team.  At the request of his family, a Pittsburg funeral home placed Smith's body in his favorite position for visitation, watching the Steelers game. 

His body was lying in a recliner with a remote control in hand as a taped Steelers game played in a high-definition TV in front of him on a loop.  Smith also had a pack of cigarettes and a six-pack of beer right at his side. 

GEIST:  That might have been the problem right there.  You know, Tucker, I am against human taxidermy in all its forms, but especially in this case.  You know, if you're Alexander Graham Bell with a phone or something, that's one thing.  But if your legacy is watching football on TV, I probably wouldn't memorialize that. 

CARLSON:  Human taxidermy.  I can't get over it.

Willie Geist, thank you.

CARLSON:  Well, that's THE SITUATION.  I'm Tucker Carlson.  Thanks for watching.  “SCARBOROUGH COUNTRY” starts right now.

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

END   

Content and programming copyright 2005 NBC.  ALL RIGHTS  RESERVED.  Transcription Copyright 2005 Voxant, Inc.  ALL RIGHTS  RESERVED. No license is granted to the user of this material other than for research. User may not reproduce or redistribute the material except for user's personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon NBC and Voxant, Inc.'s copyright or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.

Discuss:

Discussion comments

,