updated 7/20/2005 7:59:12 AM ET 2005-07-20T11:59:12

Guest: Jim Warren, Ben Ginsberg, Ralph Neas, Sheila Jackson Lee, Orrin Hatch

DAN ABRAMS, GUEST HOST:  Coming up, now, let‘s play HARDBALL. 


ABRAMS (voice-over):  Tonight, President Bush will announce his first nominee to the Supreme Court.  Will he replace retiring Justice Sandra Day O‘Connor with another woman?  And how will the special interest groups on both sides react to the president‘s nominee? 


ABRAMS:  Hi, everyone.  I‘m Dan Abrams, in tonight for Chris Matthews. 

After more than two weeks of intense speculation over who would replace Justice Sandra Day O‘Connor on the Supreme Court, President Bush now set to announce his nominee two hours from now.  All day, the rumors centered around Fifth Circuit Court of Appeals Judge Edith Brown Clement.  But NBC News has now learned that she is not, not, President Bush‘s choice, though she was one of the finalists. 

NBC‘s Kelly O‘Donnell is at the White House. 

So, Kelly, what‘s the latest? 

KELLY O‘DONNELL, NBC CORRESPONDENT:  Well, Dan, I think your video clip from earlier this evening will hold up just fine, because NBC News has learned that Judge Clement is not the choice. 

Who is the nominee about to be announced in a couple of hours?  That remains a tightly guarded secret here at the White House.  Judge Clement was among the short-listers, was interviewed by the president.  We received our initial warning, if you will, a caution by certain officials to not go too far with the Clement story, which, as you know, was running wildly throughout the day, much speculation about her as a choice. 

And then my colleague, David Gregory, was able to confirm just a short while ago that Judge Clement is not the choice.  That leaves open many possibilities.  There has been a short list ranging anywhere from a few names to a dozen to at least 20 that have been circulating around Washington.  It has been refined. 

Some of the names we‘ve been hearing in just the last couple of hours sort of resurfacing, a couple of male candidates.  As you know, the first lady had indicated she had sort of a preference for a woman to be chosen.  That seemed to fuel a lot of the talk of potential female candidates.  Among them still remaining, we hear, is Edith Jones, the other Edith that has been talked about today.  Other names, Michael Luttig, John Roberts. 

But we really won‘t know until the president announces.  Arlen Specter, who is the senator heading the Judiciary Committee, he‘s been invited to attend the White House ceremony here tonight at 9:00 p.m.  And so, the White House has carefully guarded this secret.  Very few people, only the closest, closest associates of the president, knew about his choice until late in the day. 

They will be notifying significant members on the Hill and then there will be a conference call with members of the Senate after the announcement is made public, because it all then moves from the White House down the street to the Senate, where the confirmation will begin.  The White House had a very key timeline, wanting to make certain it had a nominee put forth before the Senate and the Congress went on its recess at the end of next week, to make time for early introductions, to make time for preparation to begin, because everyone is gone during the month of August. 

And when the hearings begin, the White House had coordinated with the Senate to make sure the timing would be such that October, whomever the choice is, would presumably be on the bench—Dan.

ABRAMS:  Well, Kelly, you mentioned the hearings and you mentioned Senator Specter attending.  Senator Specter has said that he would like to see a nominee in the mold of Justice O‘Connor, which would mean, I think, a bit more moderate than some in the base would like to see.  How important is what Senator Specter wants or says? 

O‘DONNELL:  Well, the White House has telegraphed using the phrase mainstream values and has done so repeatedly.  Senior officials talking about wanting a consensus candidate in the mold of Justices Breyer and Ginsburg.  Justice Ginsburg had formerly been an ACLU attorney. 

And her candidacy was received well.  And so they‘re saying, even if there is a range of ideological opinion, they were trying to put forth what the White House calls a consensus candidate.  Now, is that just sort of a prebuttal strategy to put that forward to set up the nominee in a way that would be acceptable?  But the word mainstream has been repeatedly used here at the White House, Dan.

ABRAMS:  And there has been consultation between Senate Democrats and the president.  Do we have any sense of how much there has been? 

O‘DONNELL:  Well, the White House like to say it has consulted with more than 60 U.S. senators, more than two-thirds of the Democratic representatives. 

But, notably, some have not been contacted, like Senator Kennedy, who has been an outspoken critic of the administration.  And Senator Kennedy was thought to be one who sort of torpedoed the Bork nomination years ago.

So, the consultation has existed.  The White House says it has been deep and wide.  But some critics on the Hill say it has been more of a one-way street. 

ABRAMS:  And, yes, of course, the question is going to be, all right, so you consult with them.  You can talk to them all you want.  But you pick someone that they are not going to be happy with, they‘re going to say the consultation didn‘t do anything anyway; 9:00 p.m. tonight is the announcement.  I was sort of surprised by that, the idea that they‘re sort of holding this prime-time announcement. 

They‘re going to show off the nominee.  But I guess, in this day and age, it kind of makes sense. 

O‘DONNELL:  Well, this president likes a bold stroke.  And this certainly will give a prime-time introduction to the nominee.  A great number of people will be able to see that person and presumably have an initial favorable impression, sort of kind of keep a reins in on some of the negative commentary.

And then, of course, it will lead all the papers tomorrow and the broadcasts tomorrow.  So, it is a grand stroke significant of the historical impact of this choice.  And that‘s a big part of what this White House is engineering. 

ABRAMS:  Kelly O‘Donnell, thanks very much. 

Republican Senator Orrin Hatch of Utah is a member of the Judiciary Committee and a very powerful one at that.  And he joins us now.

Senator Hatch, thanks very much for coming on the program.  Appreciate it. 

SEN. ORRIN HATCH ®, UTAH:  Well, nice to be with you again. 

ABRAMS:  So, do you know who the nominee is? 

HATCH:  No, I don‘t.  As a matter of fact, I think they‘ve kept that pretty close to their vest, and kind of compliment them on that. 

ABRAMS:  Do you—is it true there‘s an 8:30 meeting where a group will be informed, about a half-an-hour before the president makes his announcement, as to who that is? 

HATCH:  I suspect that‘s true.  I‘m not sure. 

ABRAMS:  Sorry.  Go ahead. 

HATCH:  Yes, I suspect that‘s true, but I‘m not sure who is—who is going to be at that meeting. 

ABRAMS:  All right.  So, we‘re now told that it is not—it is not Judge Clement.  And you‘ve just said that you don‘t know who it is. 


ABRAMS:  But how much of a paper trail do you think is necessary?  And the bottom line is, the reason that I didn‘t think that Judge Clement would be the nominee was because she simply doesn‘t have enough of a paper trail.  And I don‘t expect that any judge who is nominated is going to answer a lot of specific questions about how he or she would rule on particular issues. 

HATCH:  Well, I don‘t think any judge would, any judgeship nominee would, because, frankly, every case that comes before the Supreme Court has its own individual characteristics. 

And for somebody to say, I‘m going to decide a case this way, before they even hear it or read the briefs or listen to the arguments, that would be ridiculous.  Now, like I say, any senator can ask any question that he or she desires to, and no matter how stupid.  But the fact of the matter is, is that the—the nominee doesn‘t have to answer and should not answer under certain circumstances. 

But, you know, I think a broad-ranging, generalized question-and-answer period probably is—is in order. 

ABRAMS:  And you know there are going to be questions that have code words in them.  For example, how do you feel about precedent of the United States Supreme Court, which is code for, what are you—how certain are you that you have to abide by the previous rulings of the U.S. Supreme Court, including abortion, etcetera? 

HATCH:  Well, there‘s easy ways around that.  They can—and they can be for the principle of stare decisis, or prior precedent.  But, on the other hand, the principle of stare decisis is not absolute.  There are times when a court has to overturn prior cases. 

A good—a good illustration would be Plessy vs. Ferguson, which of course was overturned by Brown vs. Board of Education. 

ABRAMS:  Are you ready to say that you are going to support whoever the president‘s appointment is? 

HATCH:  Well, I probably am going to.  I surely need to know who it is.  I need to know if it is somebody that—who I know and who I respect.

And the ones that I‘ve read in the press, the people who they claim are in the offing, everyone of them appear to be, appears to be a pretty competent person.  So, I personally believe that the only real requisite here is, they have to be qualified. 

ABRAMS:  The first lady was saying that she might want a woman.  How important do you think that will be, what the first lady thinks? 

HATCH:  Well, I expected her to say that.  I think a lot of women and a lot of men would like to see another woman.  On the other hand, I don‘t think that should be the determining factor.  That‘s an insult to women, if you take that position, because these seats are not women‘s seats or men‘s seats. 

These seats should be given to the best qualified candidate we can find, or at least one of the best qualified candidates among many best qualified candidates. 

ABRAMS:  Senator Specter has said that he would like to see an appointment in the mold of Justice O‘Connor.  Do you agree with that? 

HATCH:  Well, Justice O‘Connor was a terrific justice.  Now, naturally, there were—both sides have disagreed with her from time to time, both the conservative side and the liberal side.  And she‘s—but she rose to become one of the most powerful justices in history because she was a swing vote that could go either way. 

ABRAMS:  Do you want to see another swing vote? 

HATCH:  Well, I don‘t know.  On some things, it might be good. 

And it—I think most people would say, well, if that person would swing my way, that would be great. 

ABRAMS:  Yes. 

HATCH:  On the other hand, that‘s not what we should be expecting. 

We should be expecting people who are honest, who are fair, who are independent, who give full—full analysis and reason to the very serious issues that come before them and who really, you know, have the capacity and ability to be able to decide these monumental cases that really bind all of us in America. 

ABRAMS:  But the bottom line is that just about, just about any judge on the Federal Court of Appeals would fit that category, right? 

HATCH:  Well, there are some who fit it better than others.  I think you would have to admit that. 

ABRAMS:  Honest, fair, independent.

HATCH:  Yes.  When you—when you—right.  When you reach that level, you‘ve got to be pretty good. 

And let me tell you, yes, there are some that I feel have abused their their privilege of being a federal court—Circuit Court of Appeals judge.  There are some I wouldn‘t pick under any circumstances. 

On the other hand, the vast majority of them are pretty good people who are trying to do their job.  And you might agree or disagree with them from time to time.  I don‘t think any jurist is going to have everybody agreeing with that jurist all the time.  So, there are going to be differences.  But there are monumental ways of deciding cases that are in accordance with what the Constitution‘s real meaning is. 

And there are ways of deciding cases in accordance with a person‘s own predilection.  The latter is not a good way to be. 


HATCH:  And I would be very much opposed to that type of a judge. 

ABRAMS:  Bottom line, have they given you a clue?  I mean, have you gotten a sense it‘s one of three or something like that? 


HATCH:  Well, I‘ve chatted with them.  And I know that...


ABRAMS:  You know who it is, right?  Come on. 

HATCH:  No, I don‘t. 


ABRAMS:  Come on.  Really? 

HATCH:  No, there are—really. 

ABRAMS:  All right. 

HATCH:  I really don‘t know who—I don‘t know who it is.  They haven‘t brought me into that privilege and I don‘t think they have brought anybody else in either.  But we‘ll all know, I guess, about 9:00. 

ABRAMS:  We will. 

Senator Hatch, thanks a lot.  Appreciate it. 

HATCH:  Nice to be with you. 

ABRAMS:  Let‘s bring in NBC News justice correspondent Pete Williams. 

All right, Pete...


ABRAMS:  Do we know any—do we know any—I was going to ask you the same question.  Do we know anything more?  What, we know it is not—we know it is not Judge Clement. 

P. WILLIAMS:  Yes.  And, you know, we can be, I think, relatively certain about that. 

There was lots of excitement today that it might have been Judge Michael Luttig of the Fourth Circuit Court of Appeals.  It is still possible.  But some of that excitement was based on a reporter spotting his family all dressed up. 


P. WILLIAMS:  But it turns out, we believe, that‘s because it is Judge Luttig‘s wife‘s birthday and that he took his family—all the family went down to Richmond, where he sits on the Fourth Circuit Court of Appeals, to watch him sit on the bench as a member of the three-judge panel today that heard arguments in the very important case involving Jose Padilla. 

We‘re told that is how it‘s pronounced, Padilla, not Padilla, the American citizen.  The question there was, can you detain American citizens as enemy combatants here in the U.S. when they were arrested here and not give them any legal counsel?  And, you know, he‘s been held for over three years.  So, that‘s the reason, we‘re told, they got all tidied up, to go for the trip down to Richmond.

But, beyond that, this is an extremely well kept secret.  I suspect there are probably four or five people in Washington who know.  And they ain‘t talking. 

ABRAMS:  Well, Pete, very quickly.  Was Clement just then thrown out as a diversionary tactic?  I mean, everybody had the same information, which made me think, no one seems to have it solid and everyone seems to have heard it. 

P. WILLIAMS:  Yes, that‘s precisely it.

I don‘t think it was thrown out as a diversion, because it does turn out, we believe, that she was here and perhaps as recently as yesterday for meetings in the White House.  And that got out.  But what you have here, Dan, is the equivalent of throwing a single golf ball into a large tile bathroom. 


P. WILLIAMS:  And when you have only one piece of information, it is going to bounce around a lot.  And just the frequency of the noise makes you think that it is coming from a lot of different directions.

ABRAMS:  Right. 

P. WILLIAMS:  But it is just the same piece of information bouncing around. 

ABRAMS:  Pete Williams, thanks very much. 


ABRAMS:  When we return, we‘ll check in with NBC News chief White House correspondent David Gregory, plus, Democratic reaction from House Judiciary member Sheila Jackson Lee. 

And, later, how will the special interest groups draw battle lines around President Bush‘s pick?

You‘re watching HARDBALL, only on MSNBC. 


RONALD REAGAN, PRESIDENT OF THE UNITED STATES:  I‘m announcing today that one of first Supreme Court vacancies in my administration will be filled by the most qualified woman I can possibly find. 

ANNOUNCER:  Less than six months after his inauguration, Ronald Reagan made good on his campaign promise and nominated the Supreme Court‘s first female justice, Sandra Day O‘Connor. 

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  This great lady, born in El Paso, Texas, rose above the obstacles of an earlier time and became one of the most admired Americans of our time.  She leaves an outstanding record of service to the United States. 



ABRAMS:  Coming up, as we await President Bush‘s Supreme Court pick, can we expect a tough confirmation battle on Capitol Hill? 

HARDBALL returns after this.


ABRAMS:  Welcome back to HARDBALL.  I‘m Dan Abrams, in for Chris Matthews. 

We are awaiting President Bush‘s announcement on who will be his nominee for the U.S. Supreme Court.  That‘s coming up at 9:00 p.m. Eastern time.  Right now, we get the latest from chief NBC‘s White House correspondent, David Gregory.  So, David, I understand that you have found out who it is not. 


Well, as you‘ve been talking about it, we—we really did think all day that Edith Brown Clement, Judge Clement, from New Orleans was the pick.  And that was bouncing away around Washington.  Really, I mean, political circles, legal circles, people who really didn‘t know even without the within—within the White House—had heard that as well. 

And it was only as the day sort of moved on that we were able to clarify that, yes, she was a finalist for the job, that she was one of a group of finalists who had meetings at the White House over the weekend, even as recently as yesterday.  And we know that Judge Clement was—met with the president about a month ago, even before Justice Sandra Day O‘Connor retired.  She was certainly in the mix. 

But no, NBC News has learned that she is not the nominee.  So, that puts us where we are, which is back with question marks. 

ABRAMS:  Yes.  What does that—what does that tell you?  Is there anything that we can draw from the fact that it is not her? 

GREGORY:  Well, I do think there‘s one potential thing.  And that is that, all throughout the day, as you heard her record sort of dissected, yes, a strong conservative, but not a lot known.  I mean, take the issue for abortion.  When she was confirmed and she was championed by both Democratic senators in Louisiana, Breaux and Landrieu back in 2001, she gave testimony before the Judiciary Committee about the right to privacy, about abortion, saying that, indeed, abortion rights should be held up and there was a right to privacy. 

But she was speaking as a district court judge.  And that was sort of interpreted—rather, as an appellate court judge—and interpreted that as what she would say, given that that is settled law and she wasn‘t being considered for anything higher.  But even Democrats pointed out to me today that, look, that—that was what she said then.  Maybe there‘s different views when she has a slot on the Supreme Court. 

And so, I bring that up to say that conservatives may have been a little bit concerned about somebody who did not have more of an established record.  We are reporting that Michael Luttig, an appellate court judge, as you know, on the Fourth Circuit, Dan, is also on that short list.  He is a much more established conservative jurist, who has got the kind of paper trail that I think the conservative groups who are pressuring this White House want to see. 

ABRAMS:  Well, he is considered in the mold of Justice Antonin Scalia. 

GREGORY:  Right.  Right, but also considered to have the temperature a just a really solid conservative scholar and may be difficult to oppose.

I mean, I think Democrats are geared up to oppose just about anybody, frankly.  But I think what the White House is looking is to turn this debate on the issue of qualifications.  And so, if they have a really strong jurist, perhaps it fits the bill. 

But I think we should...


GREGORY:  ... you know, caution that there‘s a larger universe here.  And, certainly, the president was hearing from Republicans and Democrats to consider somebody outside the bench, outside the judicial monastery, as one senator put it, to think of people with a little bit more life experience. 

ABRAMS:  So, is—it is conspiratorial, then, to ask the question, is it possible that Clement‘s name was thrown out there, a more moderate pick, to see if Democrats came out denouncing her, so then, when a more conservative pick comes up, they could say, look, they were already complaining about Clement, who is really pretty moderate?

GREGORY:  Right. 

ABRAMS:  Well, of course they‘re going to complain. 

GREGORY:  Well, I think that‘s possible. 

But, you know, I think Pete Williams brings up a really good point.  In Washington, when there is this kind of nugget of information, it starts bouncing around.  And then it becomes—it is part of an echo chamber.  And people say, well, yes, I‘ve heard that or that makes sense.  And it all starts to reach critical mass. 

And because there was some element of truth to this, that she was a finalist, she was part of the short list. 

ABRAMS:  Right. 

GREGORY:  It all seems to, you know, start to make sense.  But I think that may have more to do with how journalists function and lawyers in the town function and others in political circles that sort of helped this gather steam. 

ABRAMS:  David Gregory, good to see you. 

GREGORY:  All right, Danny.

ABRAMS:  When we return, we‘ll find out what the Democrats are saying about tonight‘s announcement, and, later, how the special interest groups are gearing up for this confirmation battle. 

This is HARDBALL, only on MSNBC. 


ABRAMS:  Welcome back to HARDBALL. 

No Senate Democrat from the Judiciary Committee would come on tonight‘s show, ahead of the president‘s Supreme Court announcement at 9:00 p.m.  But joining us from the House Judiciary Committee to give the Democratic point of view, Congresswoman Sheila Jackson Lee of Texas. 

Congresswoman, thanks for coming on the program.  Appreciate it. 

REP. SHEILA JACKSON LEE (D), TEXAS:  Dan, it is good to be here. 

ABRAMS:  All right.  So, I asked Senator Hatch this question.  Let me ask you a similar question.  Do you expect to oppose whoever the president chooses? 

JACKSON LEE:  Well, obviously, the Senate has the right to advice and consent. 

I think I‘m going to leave that question unanswered.  First of all, I‘ll give the president a high B-plus, if you will, for its outreach and, obviously, his interest in hearing from Democrats.  But we want to know whether or not the appointee will be someone that will judge cases fairly, who will protect the individual rights and freedoms of Americans, will have a high degree of integrity, and recognize that the Constitution should be applied evenly. 

And we will reserve the right to object, if you will, to someone who is absolutely ideologue on these issues and is not a biased—unbiased individual. 

ABRAMS:  Listening to that definition, it sounds like you and Senator Hatch are looking for the exact same candidate.  Unbelievable.


ABRAMS:  All right. 

But the bottom line is, you know who the sort of short list is.  I mean, you‘ve heard them out there, Judge Jones, Judge Luttig, Judge Roberts.  Judge Clement, it now seems, isn‘t going to be the nominee.  But you have a sense of who the five to seven on the short list are.  Any of them be OK with you? 

JACKSON LEE:  Dan, you know, let me—I took the liberty of looking over the list of Supreme Court justices and also associate justices. 

Be reminded that Justice Warren, for example, was appointed by President Eisenhower.  Justice Brennan was appointed by President Eisenhower, which means that a Republican president can appoint an individual to the court that understands individual rights and understands the need for protection of freedom. 

The names that you‘ve called, I would just say, give me pause.  I am not in the United States Senate, but these are judges that, if you will, rule on ideologue and ideology.  These are judges that limit constitutional rights to individuals.  They limit the rights of plaintiffs to come into the courthouse. 

And I would be concerned and I would think that there are senators, who happen to be Democrats, have the right to raise the questions regarding their factual history or their—or their history as it relates to the court and to ask tough questions and not be limited by their questions, to get the facts, and to understand whether these jurists would bring their ideologue to the court. 

ABRAMS:  Do you think it should matter whether this person was a judge or not? 

JACKSON LEE:  I like the idea of going outside the—of the band of judges.  I like the idea of looking to someone who is not set on the bench.  I think that brings a lot of diversity to the court.  And I would be interested in seeing who that individual might be. 

But, again, we are concerned about someone who protects the individual right and freedoms of Americans, has a high ethical standard, judges cases fatherly.  We‘re concerned that that is the kind of justice that should be nominated. 

ABRAMS:  Yes. 

All right, Congresswoman Sheila Jackson Lee, thanks very much. 

Appreciate it. 

JACKSON LEE:  Thank you so very much for having me. 

ABRAMS:  When we come back, some pressure groups in Washington getting ready to fight for or against the president‘s nomination.  How important are they going to be in the confirmation process? 

And coming up, in just about 90 minutes, President Bush‘s announcement on who he has chosen to replace Supreme Court Justice Sandra Day O‘Connor. 

You‘re watching HARDBALL on MSNBC. 



ABRAMS:  We‘re back on HARDBALL.  I‘m Dan Abrams, for Chris Matthews. 

In about 90 minutes, President Bush will announce his nominee to replace Sandra Day O‘Connor on the U.S. Supreme Court.  For advocacy groups on Capitol Hill, that means the fight bell is about to ring. 

Ben Ginsberg and Ralph Neas will probably both be in the fray, Ginsberg, Republican attorney and an adviser to the conservative organization Progress For America.  Ralph Neas is president of the liberal group People For the America Way.

Gentlemen, thanks for come on the program. 

All right, Ralph, do you expect to be opposing whoever the president appoints? 

RALPH NEAS, PRESIDENT, PEOPLE FOR THE AMERICAN WAY:  I‘ve been hoping for weeks that there was going to be really a bipartisan nominee, someone who would be a unity candidate who could bring the country together.  My fervent wish tonight was that President George W. Bush would be surrounded by the Democratic leader and the Republican leader and we would have something that would bring the country together. 

I think we‘ve had a charade over the last week or two.  I think Karl Rove and George W. Bush made up their minds several weeks ago.  And, regrettably, I think that they‘re going to nominate someone in the mold of Clarence Thomas and Antonin Scalia, two jurists who want to turn back the clock seven decades on fundamental rights and liberties. 

ABRAMS:  Would Sandra Day O‘Connor—would Sandra Day O‘Connor or someone like that—Senator Specter has said he would like to see someone like that—would that satisfy you? 

NEAS:  That‘s what we‘ve been saying for several weeks now, since July 1.  We‘ve been recommending to the president, to the Republican and Democratic Senate leadership, put someone on in the mold of Sandra Day O‘Connor, a mainstream conservative, approved 99-0 by the Senate in 1981.  That‘s the kind of person who should be put on the Supreme Court at this critical moment in our history. 

ABRAMS:  Ben, there was rumors all day that it was going to be Judge Edith Clement.  And, you know, I think that a lot of people were saying, wow, not someone with a paper trail, someone viewed in the kind of mold of O‘Connor.  Do you think that was just a trial balloon to see if people like Ralph and others went out and started attacking even Judge Clement? 

BEN GINSBERG, FORMER BUSH-CHENEY CAMPAIGN ATTORNEY:  Well, I‘m not sure it was really a trial balloon, although I think that much of the tribal customs of Washington, certainly searching for rumors, certainly came out in the—in the past couple of days. 

And Ralph‘s answer to your question was pretty indicative of where I think the left is going to go with whoever is nominated. 

ABRAMS:  What do you think about the paper trail?  I mean, do you think that it really is going to require that whoever this is have a stated, clear position on the hot-button issues like abortion, like religion, and some of the other, affirmative action?  I mean, isn‘t it clear that whoever this appointment is, is going to have to have a clear record on those issues? 

GINSBERG:  Dan, I think a paper trail as sort of beauty in the eye of the beholder is a standard. 

What the president has shown with the process that even Sheila Jackson Lee, a tough grader for Republicans, generally gave a B-plus, is that this is a process that is going to pick a nominee who is going to bring a good intellect, an accomplished judicial career, dignity to the court, and, basically, be a fine justice.  And I think whoever the person that the president chooses tonight will be indicative of this process, who has done exactly right with a lot of consultation.  And that‘s to be commended. 

ABRAMS:  Ralph, why are you so convinced you are not going to be happy? 

NEAS:  I‘m convinced because, apparently, the president hasn‘t talked to the Democratic leaders in over a week. 

ABRAMS:  Come on.  What does that really mean?  So you talk to them.  He doesn‘t need the Democrats to come and tell him who they think that he should appoint.  I mean, he can certainly get his people to say, here‘s who Harry Reid would want.  Here‘s—you know, here‘s who Senator Specter would want on the Republican side, on the more moderate side, etcetera. 

NEAS:  Dan, over the course of our history—and this certainly happened in 1993 and 1994, when President Bill Clinton conferred with Orrin Hatch and got his approval of Stephen Breyer and Ruth Bader Ginsburg before nominations, that‘s when it works best.  That‘s when you bring the country together and you get someone who will be a unifier and not a divider. 

I‘m doubtful now that that‘s what the president is going to do.  Other than going to war, this is the most important decision for a president and for a senator.  I‘m sorry they could not work together and come up with a bipartisan consensus.  The next couple of months will probably determine what the law of the land is going to be for the next three or four decades. 

ABRAMS:  Well, Ben, what about that?  What about the fact that President Clinton, for example, it seemed wanted Bruce Babbitt to be on the court, consulted with the Republicans in the Senate.  And, you know, it seems that they convinced him against it.  He chose Breyer instead. 

GINSBERG:  Well, the truth is, we all know what that process was with President Bush and what it created. 

But I‘m afraid my friend Ralph is only going to be happy if it rains in terms of this nomination.  And I think the left is going to be like that already.  You‘re hearing, I think, an unfortunate prejudging of this process.  And the president has, above all else, consulted with Democrats about this process, gone about, looked at the records of the individuals involved, met them face to face, we‘re told.

And that is going to produce a nominee that the American people is going to support, I believe. 

ABRAMS:  Ralph, do you feel powerless here? 

NEAS:  No.  I think it is important to note out that we who are on the issue advocacy front, can certainly help share information with the public.  And we‘re going to be involved in a massive national public education campaign, no matter who the nominee is.

ABRAMS:  It is so hard to translate what a judge‘s rulings are. 


ABRAMS:  I mean, you can try.  But can you—can you—do you think you can really say something?  Let‘s assume it is one of the judges that you don‘t like.  Let‘s assume it is Luttig, for example.  I mean, you‘re going to go out there and you‘re going to say what?  The advocacy ads are going to say what?  He‘s going to take away your right to choose? 

NEAS:  We‘re going to say that, if this nominee is in the mold of Clarence Thomas and Antonin Scalia, we‘re going to demonstrate by sharing our research, which shows that one or two more justices who are on the right will mean that more than 100 Supreme Court precedents will be overturned. 

We studied every dissent and concurring opinion of Thomas and Scalia.  But with all due respect to Ben and Ralph here, we‘re not what is most important.  What is most important is the confirmation process in the United States Senate.  The hearings are the most important.  They‘re the critical phase in every confirmation process. 

ABRAMS:  Come on.  No, they‘re not.


ABRAMS:  The critical phase is what everyone is doing behind the scenes in getting as much information about the person‘s nanny and about the this and the that.  I mean, the confirmation process, you know that whoever it is, is not going to answer most of the questions that the, for example, Democratic senators want answered. 

NEAS:  Dan, if the nominee does not answer questions, refuses to share his or her judicial philosophy, that person will not be confirmed. 

ABRAMS:  Every prospective candidate, just about, has refused to answer many of the questions that senators have asked them. 

NEAS:  And when candidates like Miguel Estrada have refused to answer questions and have done it that way in a disrespectful way and not...

ABRAMS:  But that‘s different.


ABRAMS:  Go ahead, Ben.  Ben, go ahead.


GINSBERG:  If I may, Dan...

NEAS:  No.

GINSBERG:  If I may, Dan, here‘s what Joe Biden said in 1993 when Justice Ginsburg was up.  He said, you not only have a right to choose what you will answer and not answer, but, in my view, you should not answer a question of what your view will be on an issue. 

ABRAMS:  Yes. 

GINSBERG:  Now Ralph is changing the standard.  I think that‘s what you‘re going to see as a constant refrain from the left.  And that‘s unfortunate, because it debases the process a good deal, what they‘ve done with the appellate court judges. 

ABRAMS:  Ralph, final word. 

NEAS:  Dan, the law is going to be determined this summer and next summer.  And if there‘s any doubt as to what this judicial philosophy of this nominee will be, the doubt should be resolved in favor of the Constitution and the American people.  That person should not be confirmed unless the American people know what his or her judicial philosophy is. 

ABRAMS:  Yes. 

NEAS:  It is that important. 

ABRAMS:  All right.  Well, I would say that we shouldn‘t expect to know exactly, apart from previous rulings, in which case you get a pretty good sense of what person is going to... 


NEAS:  You don‘t to have decide future rulings.  You can discuss judicial philosophy of right to privacy, what rights are in the Constitution. 

GINSBERG:  Yes, you can, but you need—you need to be fair about it, Ralph. 


ABRAMS:  All right. 

GINSBERG:  You need to be fair.

ABRAMS:  Ben Ginsberg, Ralph Neas, thanks a lot. 


GINSBERG:  Thank you so much.

ABRAMS:  When we return, what, if any, political fallout can President Bush expect after he announces his Supreme Court choice in an hour and 20 minutes?  Jim Warren of “The Chicago Tribune” and “The Washington Post”‘s Lois Romano join us.

You‘re watching HARDBALL, only on MSNBC.  


ANNOUNCER:  President Clinton was moved to tears in 1993 by the words of his first Supreme Court nominee, Ruth Bader Ginsburg.

WILLIAM J. CLINTON, FORMER PRESIDENT OF THE UNITED STATES:  I am proud to nominate this path-breaking attorney, advocate and judge to be the 107th justice to the United States Supreme Court.

ANNOUNCER:  With a vote of 97-3, Ginsburg sailed through her confirmation hearings, becoming only the second woman to serve on the Supreme Court.



ABRAMS:  Coming up, a lifetime appointment that could have a major impact on U.S. social issues for decades.  Who will be the Supreme Court nominee?

HARDBALL returns after this.


ABRAMS:  We‘ve got breaking news to report to you in connection with the president‘s Supreme Court appointment.

The Associated Press is reporting that the president will choose John Roberts of the D.C. Circuit, a Federal Court of Appeals judge, 50 years old, has been a judge since 2003, clerked for then Associate Supreme Court Justice Rehnquist from 1980 to 1981.  He clerked for a Second Circuit judge, Henry Friendly, from ‘79 to ‘80.  He has actually been supported by many prominent Democrats when he was up for the Federal Court of Appeals. 

In fact, the Senate Judiciary Committee confirmed him by a 14-3 voice vote.  The question, of course, now is going to be how controversial a pick will he be. 

Still joined by Ralph Neas and Ben Ginsberg. 

All right, Ralph, so AP reporting that it is John Roberts.  How does - what do you make of it? 

NEAS:  John Roberts has been on the court only for about two years.  There are certainly some serious problems that we have discerned from that two years and from his background, especially on the issues of the environment, for example, the constitutionality of the Endangered Species Act. 

And, certainly, we‘ve heard concerns from briefs that he‘s written and oral arguments about privacy, reproductive rights and reproductive health. 

ABRAMS:  Let‘s—let‘s be clear.  He signed on to a brief while he was in the solicitor general‘s office which stated that Roe v. Wade was wrongly decided. 

Now, it is unclear, just because he signed on to a brief, whether that is his own view. 

NEAS:  No, I think this is going to be particularly an instance as to the importance of the advise and consent responsibility of the Senate and the critical element that the Senate Judiciary Committee hearings always are. 

The critical element is the Senate Judiciary hearing.  And it always decides who is going to be confirmed or not.  We have serious concerns. 


ABRAMS:  I‘ve got to stop—I‘ve got to stop you both. 

We‘ve got to go to an NBC News special report with Brian Williams.


The Associated Press wire service is reporting tonight, President Bush has indeed made his decision for the Supreme Court seat vacated by Sandra Day O‘Connor.  And it is this man.  At age 50, he is a young member of the federal bench, federal Judge John G. Roberts Jr. on the U.S. Court of Appeals for the District of Columbia, where he was nominated, by the way, by the current president, George W. Bush, this news just filtering through much of official Washington, as we say.

To our Washington bureau and NBC News justice correspondent Pete Williams.

And, Pete, I know this was one of the names on everyone‘s short stack of names for the court. 

P. WILLIAMS:  Yes, absolutely, very much one that the conservatives had hoped the president would go with. 

A couple of obvious things to say here, Brian.  Number one, it is not a woman.  There was a lot of thought about whether the president would go with a woman.  He doesn‘t.  Number two, the question here is whether John Roberts would cause the Supreme Court to be more conservative than Sandra Day O‘Connor.  And I think it is the opinion of many legal scholars that he probably would.  John Roberts served the Justice Department under President Reagan. 

He was nominated to the Court of Appeals by the president and just recently got there.  But when he was in the Justice Department, he wrote some briefs in presenting cases on abortion that were considered by abortion groups to be anti-abortion.  Now, I‘m sure his defenders will say, that was his job at the time, to articulate the views of the—of the administration.  He was an advocate then. 

Now he‘s a judge and things are different, Brian.

B. WILLIAMS:  Pete Williams in our Washington bureau, thanks. 

This would put another Harvard-educated member of the court on the court, Harvard College, Harvard Law School, former clerk for Chief Justice William Rehnquist.  He has always been called a kind of bedrock conservative, not what is called a movement conservative, one of the more modern-day conservative movement members in the city of Washington. 

NBC News chief White House correspondent David Gregory is standing by. 

And, David, I know this White House that guards its secrets with such zeal, this one stayed intact all day long, until this Associated Press report tonight. 

GREGORY:  Absolutely right. 

And, Brian, we can say unequivocally that NBC News has indeed confirmed and has learned that John Roberts is indeed the president‘s choice and he will nominate him at 9:00 Eastern time.  There was a cloak of secrecy throughout this process.  He was rumored, of course, for a long time to be on the short list, thought to be on that short list in the final days.  And this is, as you say, a bedrock conservative, somebody with a strong record, somebody who now sits on the D.C. Circuit, considered to be the second highest court in the land. 

So, on the one hand, so much expectation that it might be a woman, the first lady saying that that is what she wanted her husband to do, was to replace Sandra Day O‘Connor with a woman.  But, in this case, the president has responded by naming John Roberts, a strong conservative.  And no doubt his conservative base will applaud this move.  And, no doubt, Democrats will be prepared to fight the nomination in some fashion. 

But it should be known that Roberts is known as a pretty serious conservative legal scholar who has a good judicial temperament.  So, it will be interesting to see how the battle lines form over the days to come. 

B. WILLIAMS:  David, what—what protectors does he have that you know of on the other side of the aisle?  He is not known, I don‘t think, as one of the truly polarizing figures on that final list. 

GREGORY:  I think that‘s right. 

And I don‘t have any names that immediately spring to mind.  But we know that Senator—former Senator Fred Thompson, who has a pretty good bipartisan record on Capitol Hill, will be responsible for shedding Roberts through this process.  And he was chosen specifically as somebody who could reach out to both sides and try to shepherd this person through. 

So, I think, in choosing Roberts, the president has somebody with strong conservative credentials, somebody who has got, in the conservative view, a reliable track record, but who is still known to have the kind of judicial temperament and judicial mind to be somebody with the right qualifications.  And qualifications is an important word, Brian, because the White House would like to cast this debate not about ideology, but about qualifications. 

And they bring up Justice Ginsburg as the latest example of somebody who may have been polarizing ideologically, but who was deemed by right and left to have strong qualifications.  They certainly hope that‘s how Judge Roberts will be seen as well. 

B. WILLIAMS:  David Gregory, thanks. 

And I‘ll read this off the Associated Press.  We now know the president offered the position to Judge Roberts in a telephone call at 12:35 p.m. after a luncheon with the visiting prime minister of Australia, John Howard. 

I know Pete Williams is still with us from our newsroom. 

Pete, this judge is really part of the—kind of the standing army of Washington.  Hogan & Hartson was the law firm he was briefly affiliated with, very much a member of what used to be called derisively the establishment, but well connected, a father of two, 50 years old, an upstanding member of the federal bar. 

P. WILLIAMS:  And experienced in the Supreme Court. 

A couple of thoughts about that, Brian.  First of all, he was deputy solicitor general under this president‘s father.  So, that‘s the office in the Justice Department that argues cases before the Supreme Court.  He clerked there as well.  So, he certainly knows his way around those marble halls. 

But he has had tough times getting through Senate in the past.  He was originally nominated to fill the judge vacancy when Clarence Thomas went to the Supreme Court.  But he—that nomination was stalled.  He was appointed then again by this president for the Courts of Appeals, but it took a couple of years for that to work its way through the Senate, not until the Republicans got control of the Senate.  So, it was hard-fought for him twice before in the Senate, before he was finally confirmed, Brian.

So, it‘s not—he will certainly be familiar with tough sledding in the Senate. 

B. WILLIAMS:  And, Pete, as I go through the research here while you speak, I‘m reminded that he has had supporters before, lawyers who have at least been affiliated more with Democratic causes than Republicans, Lloyd Cutler, to name one, Walter Dellinger, former Justice official under the Clinton White House, Clinton administration, to name another, the longtime Duke University law professor. 

So, he has been able to reach across those kinds of ideological lines. 

P. WILLIAMS:  Right.  And—and I think that, as you say, not a movement conservative, someone who is—very much knows the traditional path, takes the law very seriously, has viewed it as a—as a—as a career path on the Supreme Court, Supreme Court practice. 

He not only was a clerk before the Supreme Court, but he also represented many clients, part of a very small elite group of lawyers in Washington who practice before the Supreme Court, before he became a judge. 

B. WILLIAMS:  And very quickly, Pete, a legacy appointment, a 50-year-old man. 

P. WILLIAMS:  Absolutely.  And that may have been a critical factor for the White House to go with someone young. 

B. WILLIAMS:  And we have time for one question to our Washington bureau chief, who happens to, to our great advantage, to be with us in New York, Tim Russert. 

Tim, we now know that this will be the president‘s man.  You and I on “NBC Nightly News” this evening talking about all sides girding for a fight, while your contention is that the other side will fight no matter who the nomination is. 

TIM RUSSERT, NBC WASHINGTON BUREAU CHIEF:  But the intensity will be different, I think with Mr. Roberts, rather than some of the other more conservative candidates.

When Mr. Roberts was nominated for his current position, Brian, in the Judiciary Committee, Senators Kennedy, Durbin and Schumer opposed him.  But it was approved with only three Democrats opposing.  I think the chances of confirmation are probably pretty good, unless we find something else we did not know. 

B. WILLIAMS:  All right.  Tim Russert, we‘ll be seeing more of you, of course, later on.  Our special coverage begins 9:00 Eastern, the official announcement by the president of Judge Roberts to go to the Supreme Court. 

For now, I‘m Brian Williams, NBC News, New York. 

ABRAMS:  MSNBC continues now with the special coverage of the announcement that D.C. Circuit Federal Court of Appeals Judge John Roberts will be appointed by the president in about an hour to become the next justice of the United States Supreme Court. 

He is a comparatively young judge at the age of 50, someone who has only been a Federal Court of Appeals judge for 20 months now.  And that means he‘s got a limited paper trail. 

Ben Ginsburg, who has advised many Republicans over the years, what do you make of this?  I mean, the fact that he is someone with only 20 months of a paper trail probably helps him, does it not? 

GINSBERG:  Well, listen, I think that John Roberts is such an outstanding choice for his temperament and his background.  And the fact that he‘s been around the Supreme Court either as a clerk or a practitioner or a member of the Solicitor General‘s Office will stand him in great stead. 

The fact that he was passed unanimously by the Senate just 20 months ago, as you noted, that he has received the highest recommendation from the American Bar Association, that he‘s got a great personal story besides.  He‘s done a lot of pro bono work in the community with diverse groups, such as the Lawyers Committee For Civil Rights Under Law.

ABRAMS:  Yes. 

GINSBERG:  Not a traditional Republican group, that John has helped prepare minority students who have come to town for law school.  So, all in all, he‘s an outstanding pick. 


ABRAMS:  Ralph Nader, you‘ve said that it is going to depend largely on what kind of answers he gives when he is questioned by the Judiciary Committee. 

Well, I can tell you that one of the key questions was addressed when he was up to become a Court of Appeals judge and he was asked by Senator Durbin, “I‘m asking you today, what is your position on Roe vs. Wade?”

Roberts said: “I don‘t—Roe v. Wade is the settled law of the land.  There‘s nothing in my personal views that would prevent me from fully and faithfully applying that precedent, as well as Casey,” meaning the other decision that refined Roe v. Wade a bit.  Satisfactory? 

NEAS:  Dan, now, that‘s the answer he gave when he was up for the Circuit Court of Appeals, which has to follow the precedents of the Supreme Court. 

He is now going to have to match up to a different standard.  He‘s going to be in a position to make the precedents, not follow the precedents.  But it is not just going to be the issue of privacy and reproductive rights and reproductive health.  Those are very important issues, but they‘re only part of the judicial philosophy that the senators will ask him about.  They‘re going to be asking about equal opportunity, about religious liberty, about environmental protections.

They‘re going to be looking back to the last 60 or 70 years to see whether he agrees with those who call him the darling of the right, someone who is considered one of the most conservative in respect to judicial philosophy. 


ABRAMS:  How do you—how do you explain, then, that—that two former solicitor generals, Seth Waxman and Walter Dellinger and the late Walter—Lloyd Cutler either supported or said positive things about him when he was up to become a Federal Court of Appeals judge?

NEAS:  Dan, that is not unusual.

William Coleman was the chairman of the American Bar Association when they unanimously recommended Robert Bork.  And he was approved unanimously for the Circuit Court of Appeals, but, of course, was rejected 58-42 by the United States Senate.  Again, it underscores the importance of the advise and consent responsibility.

The Senate hearings, I think that‘s where it will all be decided.  In the meantime, we‘ll certainly express our serious concerns.  It‘s a problematic nomination.  And we‘ll continue to exhaustively examine his public record. 

ABRAMS:  Jim Warren, “Chicago Tribune,” this is going to be a tough one for the Democrats to fight, no? 

JIM WARREN, DEPUTY MANAGING EDITOR, “THE CHICAGO TRIBUNE”:  Stretching a little bit, though I see where he‘s coming from. 

This is a pick that seems right out of central casting, Dan.  This is a guy who seems as if he was born for the bench.  Yes, he‘s conservative, but a terrific person, a terrific judicial temperament, very scholarly, has been a very adroit advocate before that very, very same court. 

To what extent is there any downside?  Well, you know, maybe you can this does absolutely nothing for racial or ethnic diversity, certainly nothing for gender diversity.  There may be a bit of a gender backlash.  But the folks at the White House have to know what we all suspect.  There is going to be at least one more vacancy, maybe two, during this president‘s term.  And they‘ll be able to address those concerns.  And they surely will. 

ABRAMS:  Yes.  And it seems to me that—I mean, Ralph Neas is right that there is a different standard that is applied to Federal Courts of Appeals judges, where you‘re simply saying, I will follow the Supreme Court‘s decisions vs. someone who becomes a Supreme Court.

But, boy, when you see the Judiciary Committee passed him 14-3 when he became a Federal Court of Appeals judge and—and I‘ve been reading article about article about him—and any time someone who worked with him is questioned, it seems that they loved the guy. 

WARREN:  Yes.  And I don‘t think, on an issue like Roe v. Wade, that there‘s necessarily less there than meets the eye, with that very interesting exchange you recalled, Senator Durbin of Illinois and Roberts a few years back. 

I think the president has to know in his heart of hearts that it serves him no good ultimately or his party to bring in somebody who is going to overturn Roe v. Wade.  I don‘t think they want that. 

ABRAMS:  Well, and...

WARREN:  They probably have their fingers crossed that he doesn‘t want to do it. 


ABRAMS:  And, of course, there‘s the argument that, even if he did, it is probably still 6-3 on Roe v. Wade, although you can argue that many restrictions would be imposed.

WARREN:  Yes.  I...


ABRAMS:  Jim Warren..


ABRAMS:  I‘ve got to wrap it up. 

WARREN:  I think this is a shrewd—sure.

ABRAMS:  Ben Ginsberg, Ralph Nader, Jim Warren, thanks a lot. 

Appreciate it. 


ABRAMS:  Stay with NBC throughout the night, complete coverage of President Bush‘s choice for the United States Supreme Court, in one hour, 9:00 p.m. Eastern, live coverage of the president‘s announcement.  John Roberts is expected to be there.

Right now, Keith Olbermann with more on the decision.



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