updated 7/21/2005 10:15:06 AM ET 2005-07-21T14:15:06

Guest: John Danforth, Jon Corzine, Norman Pearlstine, Andrew Card

CHRIS MATTHEWS, HOST:  Supreme Court nominee Judge John Roberts heads to Capitol Hill today to meet with senators who will judge whether he's qualified to serve on the Supreme Court.  And the Bush administration opposes federal legislation to protect journalists, saying the measure—quote—“could create serious impediments to effectively enforce law and fight terrorism,” as “New York Times” reporter Judith Miller spends her second week in jail for refusing to name her source. 

I'm David Gregory, live tonight from the White House.  Let's play

HARDBALL.

And, hi, everybody.  I'm David Gregory, in again for Chris Matthews and reporting live from the White House. 

Judge John Roberts made the rounds on Capitol Hill today, meeting with the Senate leadership and leading senators on the Judiciary Committee.  And, as liberal groups denounce the president's pick for the Supreme Court, Senate Democrats have decided to withhold judgment until the vetting process is complete. 

Meantime, Justice Sandra Day O'Connor called her possible successor—quote—“first-rate,” but she also expressed disappointment in a newspaper interview that President Bush did not choose a woman.

Late this afternoon, I spoke with White House Chief of Staff Andrew Card. 

(BEGIN VIDEOTAPE)

GREGORY:  Andy, thanks for joining us very much. 

ANDREW CARD, WHITE HOUSE CHIEF OF STAFF:  Thank you, David.  I'm glad to be with you. 

GREGORY:  Let me begin by asking you—the reaction Democrats thus far has been more or less muted, at least reserved, from a vast majority of Democrats about the president's selection.  Have you or the president today personally received any assurance that, A, there will be no filibuster of Judge Roberts, or any other kind of a remark about how the confirmation hearings will go? 

CARD:  I have talked to senators today, but it is my understanding that they're looking forward to a respectful process under which the John Roberts nomination is considered. 

I think that he will be treated respectfully.  We would like to have John Roberts, such that he confirmed and able to take the oath of office to serve on the bench when the Supreme Court reconvenes October 3.  And we have been working with the Senate over the process under which he will be considered.  But there are no particular commitments that have been made, that I'm aware of, anyway.

GREGORY:  Let me ask you about reaction from the seat that he may be taking.  And that is Justice Sandra Day O'Connor, kind of a mixed reaction.  She described Judge Roberts as having a brilliant legal mind, but also said he is good in every way, except he is not a woman.  What's a response to that? 

CARD:  She's accurate.  He is not a woman.  And he is very smart.  He's got a great mind.  He is very intelligent.  He has got a terrific temperament, a great judicial temperament. 

He is highly regarded; 152 lawyers who are very prominent on their own right sang his praises when he was nominated for the circuit court.  And he'll be an outstanding member of the Supreme Court.  The president was looking to put someone on the Supreme Court that would be the best possible athlete.  And John Roberts reflects that.  And he also has the right kind of temperament, the right kind of respect for our Constitution.  And he'll make sure that all of our freedoms and liberties that were outlined in that great Constitution are protected. 

GREGORY:  How many of the five finalists were women? 

CARD:  I'm not going into the names or the gender.  But the president did consider people who were not white males.  And he had a longer list of people that he looked at as well. 

So, the president was very deliberate in considering candidates.  And he did interview candidates and he also did not interview some candidates that he knew well and didn't feel that he had to interview them.  And some of those people were nonwhite males. 

GREGORY:  Did you go out of your way, did the president go out of his way to sort of thread the needle here, to find a strong conservative jurist, but somebody who would not necessarily provoke Democrats? 

CARD:  No.  He was looking for someone that would live up to the president's expectation of someone who would understand and respect that Constitution, would implement decisions from the bench as a lawyer and as a judge, rather than as a legislator.  And I think the president did a spectacular job, because John Roberts is so highly regarded.  And his service on the court at the D.C. Circuit has been remarkable, in that it has earned the praise of many, many people. 

But I've known John Roberts for a long time.  I met him first during the Reagan administration, when I worked right down the hall from him in the Eisenhower Executive Office Building. 

GREGORY:  Does the president share the view of some conservative activists that he would like to see John Roberts roll back abortion rights, should a case be presented to the court? 

CARD:  The president certainly did not talk about that issue with Judge Roberts.  And it would have been inappropriate if he did.  The president did not raise any issues that the court might be considering. 

He was looking instead at the judicial temperament that Judge Roberts would bring to the court, as well as his keen intellect and his understanding of the common man and the fact that he respects that document that we have all taken an oath to preserve, protect and defend. 

GREGORY:  Does Judge Roberts the bill that conservatives—or the mantra, I should say, after the president's father was in office of no more Souters?  That is to say, is he a consistent, a reliable conservative, in the president's mind? 

CARD:  Well, I believe that Judge Roberts lives up to the expectations that the president has for the kind of judicial temperament and keen intellect that is necessary on the court.  He respects that Constitution and will be making decisions based on an interpretation of our Constitution that does not look beyond the borders of the United States, for example. 

The president believes that our Constitution should be the driving document and it shouldn't be considered under the template of other documents around the world. 

GREGORY:  In our remaining moment here, let me turn to the CIA leak investigation. 

The president has been very clear on this point.  He doesn't want to prejudge the outcome of this case, doesn't want to comment on an outgoing investigation.  Let me ask you, have you or the president tried to get to the bottom of who the leaker is, who blew Valerie Plame's cover, at any time? 

CARD:  The president has been adamant in demanding that everyone who works in the White House participate in a cooperative way with the investigation that is undertaken by the Justice Department and the special prosecutor.  And that's exactly what we're doing. 

GREGORY:  But there...

CARD:  And so, I'm not going to comment any more beyond that, except to say, to my knowledge, the White House has had full cooperation with the U.S. attorney, Fitzgerald, who is leading this investigation. 

GREGORY:  But why can't...

CARD:  And we look forward to his results.

GREGORY:  Why could not you say whether you—or the president directed you to lead an internal investigation? 

CARD:  We are cooperating with the investigation that is ongoing.  And I think it is best for those results to be put forward when the prosecutor is ready to put them forward. 

GREGORY:  Is the president convinced at this point that nobody who works at the White House, either for him directly or for the vice president, committed a crime? 

CARD:  David, you can ask the question all different kinds of ways.  The answer is going to be the same.  We're working cooperatively in this investigation.  We look forward to the results. 

And when the results are known and fully understood, we'll have some comments about them.  But, until then, let's let the Justice Department's representative do his job to get the best information forward and have it considered by the grand jury and whatever other entity it should be. 

GREGORY:  Let me just try to pin you down on one point.  Is that to say that you, nor the president know the answer to that question? 

CARD:  I'm not going to comment.  David, you've done a great job of trying to get information that would be inappropriate for me to divulge.  And I am not going to do it. 

GREGORY:  All right. 

Andy Card, White House chief of staff, thanks very much for joining us tonight. 

CARD:  Thank you, David.

GREGORY:  OK.

(END VIDEOTAPE)

GREGORY:  And back live at the White House. 

When we return, Democratic reaction to President Bush's Supreme Court pick from Senator Jon Corzine of New Jersey. 

And, later, should Congress pass a federal shield law for reporters? 

Time Inc.'s editor in chief, Norman Pearlstine, will be here. 

You're watching HARDBALL, only on MSNBC.  

(COMMERCIAL BREAK)

GREGORY:  Coming up, will Democrats filibuster the nomination of John Roberts to the Supreme Court?  Senator Jon Corzine joins us when HARDBALL returns.

(COMMERCIAL BREAK)

GREGORY:  And welcome back to HARDBALL.  I'm David Gregory, in tonight for Chris Matthews. 

For Democratic reaction to President Bush's pick for the Supreme Court, Judge John Roberts, we now turn to Senator Jon Corzine of New Jersey. 

Senator, welcome. 

SEN. JON CORZINE (D), NEW JERSEY:  Good to be here. 

GREGORY:  So, what do you think?  First of all, were you surprised and what do you think of Judge Jon Roberts? 

CORZINE:  Well, first of all, I think the White House did its homework.  They found an individual that is brilliant, clearly capable as a jurist. 

Now, whether that individual's judicial philosophy is, as many would argue, in the mainstream or out of the mainstream, I think is open to question.  The reality is, is that Mr. Roberts is—or Judge Roberts is a member of the Federalist Society, which a lot of folks would say has a different view and interpretation of the Constitution than most mainstream jurists would have, things like interpretation of the commerce clause or even the spending clause...

GREGORY:  Right. 

CORZINE:  ... that really would restrict the role of the federal government.  And so, I think there are a lot of questions that need to be answered about philosophy as we go through this process. 

GREGORY:  Senator, White House officials actually tried to correct the record today, saying, he doesn't belong to the Federalist Society, but spoke to them.

But there's no denying that this is a strong philosophical conservative.

CORZINE:  Absolutely.

GREGORY:  I think, on that point, both sides can agree.

Are you prepared to render judgment at this point, based on what you know? 

CORZINE:  No, absolutely not.  I—I think that would be inappropriate.  I really do admire the life that Judge Roberts has led and got him to this point. 

Anybody that's argued 39 cases in front of the Supreme Court, a lot of people think he is a smart fellow...

GREGORY:  Right. 

CORZINE:  ... and has a lot to add. 

GREGORY:  Well, and...

(CROSSTALK)

CORZINE:  My question is the philosophy and what impact it will have on the basic rights, the basic privacy rights, choice rights of women.  How are we going to deal with environmental laws, the rights of disabled, a lot of issues that I think are very fundamental.  And Judge O'Connor—and Justice O'Connor was the swing vote on many of these issues. 

GREGORY:  I mean, isn't the reality as a—as sort of—as a political matter, and, in fact, a legal matter, that this is a different choice?  Democrats may have wanted somebody in the mold of Justice O'Connor.  But you've got a conservative Republican president who has put forward, by all accounts, a highly qualified conservative judge. 

You can't always get, you know, what you had before.  I mean, isn't that just sort of the reality? 

CORZINE:  There—there is an element of reality to that.  And that's ultimately how the vote will shake out, that, one of these days—I don't know whether it is 70 days from now or 90 days from now—we'll all put our votes in. 

GREGORY:  Well, let me...

CORZINE:  And the reality will come to pass. 

But the fact is that I think that it is the responsibility of Congress to make sure that the American public knows what that philosophy is...

GREGORY:  Right. 

CORZINE:  ... and what those decisions that will come from the court.  It is different than being on a circuit court.  Supreme Court justices end up writing law.  And will he really adhere to precedent and confirmed law? 

GREGORY:  Well, let's talk about precedent, because, certainly on Roe v. Wade, during his confirmation hearing—let's not forget that—that out of all the—the rather contentious battles over the president's judicial nominees, Jon Roberts, who got to the D.C. Circuit, was a noncontroversial candidate for the second highest court in the land.  He sort of sailed through. 

On the issue of Roe v. Wade, he said: “There is nothing in my personal views that would prevent me from fully and faithfully applying that precedent.”  He called it settled law of the land. 

Does that close it for you or leave more questions? 

CORZINE:  Well, it leaves more questions, because I think it is a different issue, a different standard at the Supreme Court than it is in a circuit court. 

The Supreme Court has settled that law.  But he will get different fact situations which will allow him to apply it in different ways or his interpretation of the Constitution, which he has stated.  He's a strict constructionist.  And if that leads him to believe—to edge away from Roe v. Wade, you could end up setting a pattern of additional precedents that then would overturn it. 

And I think that there are many heartfelt that believe that's the direction the country should take.  I'm not one of those. 

GREGORY:  Absent a personal revelation, some kind of—something about Judge Roberts that we don't know, is he not, as the White House argues, a mirror image of Justice Ginsburg, which is to say, he is to the right what she was to the left, in terms of being a liberal jurist, but also highly qualified?  And she got through quite easily.

CORZINE:  Well, I'm not claiming that this is going to be a difficult task for him to get through process. 

I think it is just an issue of addressing unanswered questions.  Everyone knows he has a very limit paper trail that would indicate how he will respond to philosophical views with regard to interpreting the Constitution and applying precedent.  I would like to see those.  But that doesn't have to be a hostile process. 

GREGORY:  Right. 

CORZINE:  It just ought to be one that gives us a real indication of how he will carry himself on the court.  It is a lifetime appointment.  He is 50 years old.  You could expect that he could be there 30, 35 years. 

This is one of the most important judgments that anybody who sits in the United States Senate, as it was for the president, that we have had to make.                 

GREGORY:  Let—let—before I let you go, just let me try to pin you down on this point.  Is it fair to say that you are inclined to confirm John Roberts unless something pops up that you don't know is out there? 

CORZINE:  I have serious reservations about the philosophy that I understand in the Federalist Society—and it may be debatable whether he is in or was in. 

GREGORY:  Right. 

CORZINE:  But the fact is, is that I think that interpretation of the Constitution does not reflect the values that I believe should be expressed on the court, protecting the right of the federal government to support our social policies, our environmental policies and to protect privacy and choice. 

And those are very big and important issues that need to be fully debated—debated and vetted in this process. 

GREGORY:  All right.  Senator Jon Corzine of New Jersey, thank you very much for joining us. 

CORZINE:  Thank you. 

GREGORY:  And when we return, how will Judge Roberts navigate the Senate confirmation process?  We'll talk to former Senator John Danforth, who, you remember, helped shepherd Clarence Thomas through Senate confirmation.

You're watching HARDBALL, only on MSNBC.  

(COMMERCIAL BREAK)

GREGORY:  Now that President Bush has announced his nominee for the next Supreme Court justice, the confirmation process begins.  The president has selected former Senator Fred Thompson to usher John Roberts through the process.  Former Senator John Danforth has been there before.  You might remember, he was Justice Clarence Thomas's chief sponsor through one of the toughest confirmation battles. 

Senator Danforth, welcome.

JOHN DANFORTH, FORMER U.S. AMBASSADOR TO UNITED NATIONS:  Thank you. 

GREGORY:  Let me ask you, what do you think the president was trying to accomplish, the message he was trying to send with this selection? 

DANFORTH:  Everything I've heard about Judge Roberts is that he is an excellent choice, absolutely first-rate, an outstanding legal mind, first in his class at Harvard Law School, vast experience arguing cases before the U.S. Supreme Court, now experience on the D.C. Court of Appeals. 

And beyond his legal ability, from people who know him, I am told, he is just a first-rate human being, really a good person.  So, I think this is an excellent choice, very high quality. 

GREGORY:  Do you do the president sort of pulled off two things at once, which is, he can please the base; he can please conservatives with a solid conservative, somebody who is predictable, even though he doesn't have much of a paper trail, but he appear to be a nice guy, to have a kind of even judicial temperament and doesn't necessarily provoke a fight from Democrats?

DANFORTH:  Well, he has already provoked the fight.  I don't think that it is a warranted fight, but he has already provoked it. 

Even today, less than 24 hours after the president has made his announcement, there have been protest marches that have been organized in Washington.  The groups who are opposed to Judge Roberts are already fully geared up for this.  They have made it clear that they're going to fight him.  And this is going to be a very tough fight.  I think that it is wrong, but that's the way it is going to be. 

GREGORY:  You actually—I mean, you think it will be tough in the sense that his confirmation is not assured? 

DANFORTH:  Well, I would bet on his confirmation.

But, in a day when judicial nominees are filibustered, nothing is certain. 

GREGORY:  You know, the...

DANFORTH:  I think the process he's going to go through is going to be

·         is going to be at least extremely difficult and maybe hideously terrible.  I mean, that's what we saw with the Clarence Thomas confirmation. 

GREGORY:  But what is...

DANFORTH:  No holds barred.  Anything went to destroy an individual.  And it was the worst thing that I have ever lived through.  And I am concerned, because, once these groups decide they're going to oppose somebody, they will stop at nothing. 

GREGORY:  You know this Bush family very well.  This is a president who learned from what his father went through, the good and the bad.  What do you think he learned about the Clarence Thomas—Clarence Thomas episode, as he thought about who he was going to select? 

DANFORTH:  Well, I think that he learned that the confirmation process can be extremely difficult and it can be very dirty and that, when organizations, groups, fund-raising organizations, decide they're going to oppose somebody, they will pull out all the stops. 

And they will try to find a judge who has—who has already been predetermined to be on their side on various issues.  Particularly, of course, they're interested in the abortion question.  And they want to cook it.  They want somebody who is going to be reliably on their side.  And they want this known in advance. 

So, already, they're saying that they're going to ask all these questions in the confirmation process.  I think it is a violation of the basic separation of—of the branches of government, the judiciary and the legislative branch.  If the president had asked these kinds of detailed questions on specific issues of the nominee, that would be just a major uproar.  Everybody would be mad at that. 

GREGORY:  Right. 

DANFORTH:  But now the Senate says it is going to do it and the groups say that they expect it. 

GREGORY:  Senator, do you think it was a mistake not to name a woman? 

DANFORTH:  No.  I—I hope that, in this country, we don't decide to name people because they're men or women or black or white or anything else, but that we name good people to the Supreme Court. 

And everything I know about Judge Roberts is excellent, outstanding, both as a lawyer, as a judge, but also as a person. 

GREGORY:  Justice Sandra Day O'Connor told a reporter that he is a brilliant jurist, but—and essentially has everything going for him, except that he's not a woman.  She laments the fact that the number of women at the federal court level continues to decline.  Does she have a point? 

DANFORTH:  Well, I—I think that it is wonderful they have women on the bench.  But I think, for each nomination to the Supreme Court, the president shouldn't be saying, well, I'm going to pick a man, I'm going to pick a woman, or whatever, but, who is the best person available regardless of gender?

GREGORY:  Last question.  Today, Judge Roberts had coffee with the president in the residence, a pretty intimate setting.  What do you think the president told him? 

DANFORTH:  My—just guessing.  Who knows?  But my guess is, the president expressed great confidence in him as a person who could use his judgment on the Supreme Court and probably told him that this nomination process can be really terrible and really destructive of people and encouraged him to—to stand firm in this terrible process. 

GREGORY:  Senator John Danforth, thanks very much for coming on tonight.  We appreciate it. 

DANFORTH:  Thank you. 

GREGORY:  When we return, reaction to John Roberts, plus the latest on the CIA leak case.  We'll be joined by “The Nation”'s Katrina Vanden Heuvel and Terry Jeffrey of “Human Events” magazine, plus Time Inc. editor in chief Norman Pearlstine.

And, tomorrow, Chris Matthews returns and will interview Senator John McCain about John Roberts, President Bush's nominee for the Supreme Court.

You're watching HARDBALL, only on MSNBC.  

(COMMERCIAL BREAK)

(NEWS BREAK)

GREGORY:  Welcome back to HARDBALL.  I'm David Gregory, in for Chris Matthews tonight, and reporting from the White House.

As Supreme Court nominee John Roberts made his way around Capitol Hill, paying courtesy visits today, several prominent members of the Senate spoke out about the nomination.  Republican Senator Arlen Specter of Pennsylvania is the chairman of the Judiciary Committee, which of course will hold the confirmation hearings. 

(BEGIN VIDEO CLIP)

SEN. ARLEN SPECTER ®, PENNSYLVANIA:  I think it is important, especially for the chairman, to maintain an open mind.  I like everything that I've seen about Judge Roberts.  But I think it is very important to have the hearings and to listen to him before—before a judgment is made. 

(END VIDEO CLIP)

GREGORY:  Democratic Senator Chuck Schumer of the Judiciary Committee had a more skeptical view. 

(BEGIN VIDEO CLIP)

SEN. CHARLES SCHUMER (D), NEW YORK:  I vote against Judge Roberts for the D.C. Court of Appeals because he didn't answer questions fully and openly when he appeared before the committee.  For instance, when I asked him a question that others have answered, to identify three Supreme Court cases of which he was critical, he refused.  But now it's a whole new ball game. 

(END VIDEO CLIP)

GREGORY:  Terry Jeffrey is editor of the conservative magazine “Human Events.”  And Katrina Vanden Heuvel is the editor of the liberal magazine “The Nation.”

Welcome to both of you.

KATRINA VANDEN HEUVEL, EDITOR, “THE NATION”:  Thank you. 

TERRY JEFFREY, EDITOR, “HUMAN EVENTS”:  Good to be here.

GREGORY:  All right.  Let's—let's start by taking the temperature on Capitol Hill. 

Terry, let me start with you.  What do you make of this first day out for Judge Roberts and the reaction he's getting? 

JEFFREY:  Well, he's getting a much better reaction than Robert Bork got back when he was first announced as a nominee for the Supreme Court. 

David, then, you remember, Teddy Kennedy came out with this very inflammatory, denunciatory denunciation of Bork.  So, I think this looks pretty good for Roberts.  I think, right now, you would have to see all the Republicans are going to vote for this guy, probably some of the Democrats.  He's going to be confirmed unless something significant comes up between now and when they have the vote. 

GREGORY:  Katrina, what's your read?  It was interesting to watch Senator Kennedy on “The Today Show,” when asked specifically, answer, look, this is not time to get up and do a speech about Judge Roberts' America. 

VANDEN HEUVEL:  It is time to do the hard work of holding hearings which are going to expose the real record of a man who has a very slim paper trail as a judge, a much larger paper trail as a lawyer, an advocate for large corporations and others. 

But I think people, certainly, in the country, David, you're seeing, at least on the Internet and in a lot of discussions, an awareness that there are many tough questions that will come forward.  And these hearings are crucial as a form of consultation, advice and consent.  And for Senator Danforth to kind of dismiss these as unnecessary I think is a—a true misunderstanding of the nature of this process. 

GREGORY:  But where—so, where is he vulnerable, do you think?

VANDEN HEUVEL:  Oh...

GREGORY:  To the opposition? 

VANDEN HEUVEL:  Oh, I think—well, let me put it this way.  I want to take it outside of the left-right context for a moment, if I might, because I think what is going to happen with the court is not so much moving right. 

I think it is moving backwards.  I think that is the frame so many Americans may not articulate, but feel because the civilizing decisions of the last 70 years, whether in equal rights, in environmental rights, reproductive rights, workers' rights, may well be rolled back.  And I think, certainly, on Roe v. Wade, he is going to be questioned in very tough ways, and in the excessive deference to executive power at a time when I believe many Americans are worried about checks and balances and overweening power in an extraordinarily dominating GOP party. 

GREGORY:  Terry, let me ask you this.  Is that slim record that Katrina talks about, is that a worry on the right?  Is that a reason for concern?  I mean, how do you know this is not a Souter?

JEFFREY:  Well, of course it is.  I don't see how anybody can really predict right now that this guy is actually going to be a strict constructionist and a conservative on the Supreme Court, that he is going to be a justice like Scalia and Thomas. 

I think there are some indications in his record that he may not be.  And I think, really, you know, you see a lot of Republican and conservatives in Washington and on television saying, this guy is a conservative or this guy is a strict constructionist.  I think that is based largely on the fact that he worked in the Reagan and Bush administrations and not on his record as a lawyer or his record as a judge. 

So, conservatives and Republicans who are saying this guy is a conservative are either saying that from their personal experience with him, as opposed to his record, or because they're taking it on faith from other people who have experience with him. 

VANDEN HEUVEL:  But, David—but, David, when he was solicitor—deputy solicitor general to Kenneth Starr, he had a very clear paper trail in terms of Roe v. Wade, believing that that law should be overturned.  And those who are saying, well, he was writing a brief...

GREGORY:  Representing a client...

(CROSSTALK)

GREGORY:  ... the president of the United States.

VANDEN HEUVEL:  Representing a client.  But now he will be a Supreme Court justice reopening—quote—“settled law.”

GREGORY:  Right. 

VANDEN HEUVEL:  And I think, also on the issue—and I think this is very important—on the 40th anniversary of the Voting Rights Act, which comes up August 6, this is a man who basically tried to gut the civil—the Voting Rights Act by trying to limit Congress' empowerment of that act. 

(CROSSTALK)

VANDEN HEUVEL:  There are a whole slew of other issues, I think, David, which should be discussed. 

GREGORY:  But—but—but, Katrina, how do you get at this?  You also have him on record, to put this in his context, in his confirmation hearing, saying that he felt Roe v. Wade was settled law and there's nothing in his personal views that would—that would prevent him from enforcing the law of the land. 

I understand, as a Supreme Court justice, he wields a great deal more power.  But, I mean, what can you reasonably expect this process to ferret with regard to what he would do on Roe v. Wade?  He's not going to tell you.

VANDEN HEUVEL:  I think large—I think—well, that's where Chuck Schumer, Senator Schumer, is right in explaining why he did not vote for Judge Roberts to the D.C. Circuit.  This is a man...

GREGORY:  Yes, but Sandra Day O'Connor didn't say how she would vote.

VANDEN HEUVEL:  This is a man...

GREGORY:  Justice Ginsburg didn't say how she would vote. 

VANDEN HEUVEL:  That is—wait.  This is—this is—let's not forget that the power of a Supreme Court justice, with the signing of a pen, can change the lives of millions of ordinary Americans.

I think that these senators have every right, more than every right, to ask the judicial philosophy.  Will you approach this with a restrained legal jurisprudence?  What is your view of the balance between state and federal government power?  What is your view of Griswold and privacy 40 years ago? 

(CROSSTALK)

VANDEN HEUVEL:  What is your view of the rights of corporations vis-a-vis working people? 

GREGORY:  Terry, go ahead.

JEFFREY:  Well, David, you know, Katrina may be worried this guy will overturn Roe v. Wade—or vote to overturn Roe v. Wade.  I may hope that he will—that he will do that. 

I don't think either Katrina or I know.  And I don't think, if you look at his record, you're going to see a clear sign.  I think what you're going to see is a guy who actually very carefully, throughout his entire career in Washington, tried to cloak his true views on things.  He repeatedly said that the footnote in the amicus brief he wrote in Rust v.  Sullivan for the first Bush administration, where he said he thought that Roe ought to be overturned, was him as a lawyer representing his client, the Bush administration, which felt that. 

He said that repeatedly in writing and in his testimony to the Senate Judiciary Committee when he came up for the appeals court. 

(CROSSTALK)

JEFFREY:  And I think that there are other issues where he took the same position.  This guy actually, David, went to the extent that, when the Senate Judiciary Committee asked hum to list the speeches he had given in the past, he gives a long list of speeches that take up about a page-and-a-half.  And then he says that he did not have a prepared text for any of these speeches and did not believe that any of them generated press reports.

GREGORY:  All right.  But here's—but here's—let me press you on this point.  How did we get to a point where we deemed this process useful when we have more or less a stealth candidate? 

JEFFREY:  Right. 

GREGORY:  A Washington insider who is so careful in public statements, in speeches, in his legal writings, in his confirmation hearing.  Why should not senators be able to unearth a more clearly defined philosophy? 

JEFFREY:  Well...

GREGORY:  The views on precedent...

VANDEN HEUVEL:  Absolutely.

GREGORY:  ... and actual issues?

JEFFREY:  Well, David, I—I think they should and I think the president should in fact appoint people who have clearer philosophies. 

This started with Bork.  And I think, in fact, if you look at the record, there's a dual standard.  We now have Republican nominees to the court who do not want to state their views clearly on certain things.  And we have Democratic candidates who do in fact clearly state their views on certain things, and Roe in particular. 

If you in fact go back and look at the record with Ruth Bader Ginsburg, Bill Clinton immediately said that she was a pro-choice nominee.  Orrin Hatch, the Senate Judiciary Committee chairman, who is a Republican, went on TV and said she was a pro-choice nominee.  And she told the Senate Judiciary Committee under oath that she thought there was a constitutional right to abortion. 

There was not any question where Ruth Bader Ginsburg stood on that issue.  Yet, Republicans apparently believe that, on issues like that, they need to have a stealth candidate.  And, in fact, this candidate is one. 

GREGORY:  Right. 

VANDEN HEUVEL:  This—I think what is going to be crucial is to learn more about this man's record. 

I mean, let us—Terry, I mean, you may well know this, but Judge Roberts went before the court to defend Operation Rescue, a militantly aggressive, sometimes violent anti-abortion group, which has boycotted and harmed choice clinics. 

GREGORY:  All right.  But—but, Katrina...

VANDEN HEUVEL:  I think that's important.  I think these are going to come out. 

But you know what?  In the end, I think, with the media, David—and you are asking some tough questions.  And it is good to see the media standing up in the last weeks.  But Mr.—Mr. Bush last night talked more about this man's stellar resume...

GREGORY:  Right. 

VANDEN HEUVEL:  ... his childhood than—and his connections in Washington. 

Let's unearth some of his judicial philosophy...

GREGORY:  All right. 

VANDEN HEUVEL:  ... his background in terms of the law and his cases. 

GREGORY:  All right, let me—let me get a break in here. 

And we're going to come back with more with Katrina—Katrina Vanden Heuvel and Terry Jeffrey right after this break.

You're watching HARDBALL, only on MSNBC.  

(COMMERCIAL BREAK)

GREGORY:  Coming up, will Senate Democrats make Supreme Court nominee John Roberts' confirmation difficult?  Plus, Time Inc. editor in chief Norman Pearlstine joins us to talk about the White House CIA leak.

HARDBALL returns after this.

(COMMERCIAL BREAK)

GREGORY:  We're back with Terry Jeffrey and Katrina Vanden Heuvel.

I want to know from both of you what this selection tells us about George W. Bush, the president, even the man. 

It seems to me, Katrina, that the president had this all set up in the very beginning, which is, they sort of put out there that they want to make this about qualifications.  They're daring the other side to challenge on ideology, using the Justice Ruth Bader Ginsburg model, to say, look, she was a liberal, but she qualified and she sailed through the confirmation process.  What's your thoughts?

VANDEN HEUVEL:  I see—I see something different. 

I see a man in Bush who is not a uniter.  He is a divider.  But I also see someone who, again, wants to accrue as much power in the executive branch as he possibly can.  I refer back to this decision in the D.C.  Circuit Court last week, where Judge Roberts basically violated Sandra Day O'Connor's view that war is not a blank slate for this president. 

He wants someone who is going to defer to him, just as he wants a media who will defer to him.  And I would not—I would ask people to remember that Judge Roberts privately advised Governor Jeb Bush in 2000 in the recount about ways to overturn the—to overturn the courts, taking it to the floor of the legislature, if it went the wrong way for Bush. 

I think that's is—that is called family above the well-being of a nation. 

GREGORY:  All right. 

Terry, if you look at this, in this selection, he effectively wants to take the debate over qualifications or judicial temperament off the table, in other words, saying, yes, I've put somebody up there who is very conservative, but he is not acerbic.  He can get on well with others.  He is not exactly in the mold of Justice Scalia, may have the intellectual firepower, but he is going to basically be a nicer guy. 

JEFFREY:  Yes. 

Well, and it is also interesting, David, among the president's own appellate nominees, which one he picked, because, for the most part, President Bush has named some astounding outspoken strict constructionists to the appellate courts, who because of their established records in fact cited filibusters from the Democratic Senate, Bill Pryor, Priscilla Owen, Janice Rogers Brown.

These are people who not only had a paper trail, but if you're a conservative, you would look at them and go, I think I know where that person stands.  Democrats thought that, too. 

But rather than pick one of those people or someone of that ilk for the Supreme Court, at least for his first vacancy, he has gone with someone who, quite frankly, is a stealth nominee.  And I hope, the next time around, quite frankly, the president names someone that is more like the appellate court nominees he put up that the Democrats felt compelled to filibuster. 

I think the—I think the nation deserves that kind of clear debate.  I think the president will win it.  I think we'll have a better Supreme Court and I think we'll have a better country if he does that. 

(CROSSTALK)

VANDEN HEUVEL:  But, Terry, Terry, he may well be a stealth candidate. 

He may well be a Scalia or Thomas clone. 

JEFFREY:  I hope so.  I hope so. 

(CROSSTALK)

VANDEN HEUVEL:  But I—I mean, I think that's very that clear—that could be very clear in these coming hearings. 

GREGORY:  Katrina, all right, I have only—we have only got a few seconds left.  I want to get both of you on this point. 

VANDEN HEUVEL:  Yes. 

GREGORY:  I think there's a good chance that the president has set up here a strong conservative as a first pick, but, ultimately, to set up the Alberto Gonzales court, the Gonzales court, Supreme Court of the United States. 

Comment, Terry?

JEFFREY:  It would be a disaster for President Bush to name Alberto Gonzales to the Supreme Court. 

VANDEN HEUVEL:  Alberto Gonzales would have to recuse himself from so many of the cases that will be coming from the raft of cases involving torture and other issues.  I don't see it. 

GREGORY:  All right. 

VANDEN HEUVEL:  I think he would go, if he is going to go the kind of stealth Hispanic candidate, for Garza, Judge Garza. 

GREGORY:  All right.  We're going to have to leave it there.

Thanks to both of you, Terry Jeffrey and Katrina Vanden Heuvel.

JEFFREY:  Thank you, David.

GREGORY:  And when we return, Time Inc. editor in chief Norman Pearlstine, who gave Matt Cooper's e-mails to the grand jury investigating the White House CIA leak case.

This is HARDBALL, only on MSNBC. 

(COMMERCIAL BREAK)

GREGORY:  Welcome back to HARDBALL. 

Should reporters who refuse to give up confidential sources be protected under federal law?  Today, senators heard testimony on this issue from some of journalism's heavy hitters, former “New York Times” columnist William Safire, to “TIME”'s Matthew Cooper, who nearly went to jail, you remember, because he refused to reveal a source. 

Norman Pearlstine is the editor in chief of “TIME” Incorporated, overseeing “TIME,” “Sports Illustrated,” “People” and many other major titles.  He joined those other reporters in calling for a federal shield law.  It was Mr. Pearlstine who chose to comply with a court order, however, to turn over the subpoenaed materials of “TIME”'s Matt Cooper. 

Cooper did not agree with that decision.

(BEGIN VIDEO CLIP)

MATTHEW COOPER, “TIME”:  I think Norman Pearlstine made a very tough decision.  I admire—I spend a lot of time with him and I admire the way he made it.  I disagreed.  I thought we should have at least gone forward, gone into civil contempt.  I would have been willing to go to jail.  I think we should have held on a little longer.  But that—that's a reasonable, you know, disagreement.

(END VIDEO CLIP)

GREGORY:  Norman Pearlstine is the editor in chief of Time Inc.  and he joins us now. 

Mr. Pearlstine, welcome.

NORMAN PEARLSTINE, EDITOR IN CHIEF, TIME INC.:  Hi.  How are you?

GREGORY:  Why not hang on a little bit longer, as your reporter in the field on this story suggested?

PEARLSTINE:  Well, first of all, I admire Matt and his individual choice, just as I admire Judy Miller's decision to go into contempt and to go to jail. 

In my own view, we had fought this case for more than a year-and-a-half.  We had taken it all the way up to the Supreme Court, who refused to hear it.  We were dealing with a very specialized situation involving a grand jury, involving issues of national security and a Supreme Court decision.

And I think, as a corporate defendant with an institutional responsibility, which, as editor in chief, I had, I had to make the decision on where we draw the line.  And I felt that, in this case, the proper thing to do at this point was to turn the file over to the special counsel.

GREGORY:  You talk about your corporate responsibility.  You know, there is a view that some of that corporate mind-set maybe set back the cause of journalism and that, in another era, a different decision would have been made. 

(CROSSTALK)

GREGORY:  Was this a business decision made because this is a publicly-held company?

PEARLSTINE:  No.

Actually, it is not a business decision.  It was a journalistic decision.  But I do represent more than 3,000 journalists at Time Inc.  We had a large file with a great deal of e-mail traffic in it that a number of people had access to.  And the idea of having a special counsel going on a fishing expedition through all of our staff was the kind of thing I thought was not appropriate for an institution.

GREGORY:  Did you have an indication that that would have happened?

PEARLSTINE:  Yes, I certainly had reason to be concerned about it.

GREGORY:  They had told you specifically they might subpoena other materials or pressure other journalists?

PEARLSTINE:  No.  I said that it was something that I was sensitive to that I thought was possible, just as I thought it was possible that we would be held in criminal contempt and not the civil contempt that Matt Cooper talks about.

GREGORY:  You seem to be making a distinction here, that there were certain circumstances involved in this particular case, national security interests, the involvement of the Supreme Court.  Does that...

PEARLSTINE:  And a grand jury, which of course is what the Branzburg case in 1972 was all about.

GREGORY:  All right.  But—so, if there are special circumstances here, does that undercut your testimony today on Capitol Hill that there should be a blanket privilege for reporters to protect confidential sources, a shield law?

PEARLSTINE:  No. 

On the contrary, the reason we were testifying in front of the Senate Judiciary Committee today is because, having tried our best to get the judiciary to review a 1972 case that I think was wrong when it was initially decided, we felt, we have to go to the legislature, just as in fact the court suggested we do.

GREGORY:  Why—first of all, in this case you talk about particular circumstances.  Your company has been faced with this kind of thing before, “Sports Illustrated.”  And, in that case, you actually decided to stand by the reporter and not reveal the sources.  What was the difference?

PEARLSTINE:  Well, we have fought—we fight many cases where we believe in confidentiality.  We have some form of reporter's privilege in 49 states and the District of Columbia. 

We don't have a federal law that gives us a privilege in front of a federal grand jury.  And that's why we're testifying in favor of a national shield law.

My own judgment was that we fought this case very hard, very long, with the best legal counsel that we could find.  And when we got to the point where there was really nothing more that we could argue about, we felt that we had not choice but to turn the file over.

GREGORY:  Well, you had no choice.  There may have been other choices.  Matt Cooper talked about his willingness to go into civil contempt.  A couple of questions along that line.  You have...

PEARLSTINE:  Well, first of all, you are assuming that it would be civil contempt, as opposed to criminal.

GREGORY:  Well that's correct.  That's all we know about so far.

PEARLSTINE:  Well, I can assure you it was certainly suggested to us that it would be criminal contempt, although I actually reached my decision before that was suggested to me.

GREGORY:  Well, you've got news men and women who don't like your decision.  And you know that.  And you've heard from some in the Washington bureau and elsewhere who now say that “TIME” magazine's ability to investigate stories, to talk to confidential sources has been set back by this.

PEARLSTINE:  Well, obviously, when I said that this is the most difficult decision I had to make in 37 years in the business, I realized that it was one that reasonable people could differ over, including Matt Cooper and many members of the Washington bureau.

I think the answer to that will have to be shown in the stories that we write, just as we have been writing all along.  At the very time that I was making this decision, I was approving and putting into the magazine stories that relied heavily on confidential sources and will continue to do so.

GREGORY:  Do you think it was a mistake to publish Valerie Plame's name?  Could you have covered the story without, you know, participating in putting her name in the public domain?

PEARLSTINE:  I think, once Bob Novak already put it in the public domain, that it was necessary for Matt in his story to do so, because it was only by doing so that he could show that point that he was trying to make, which was the way the White House was trying to use her and her identity to undermine Joe Wilson's op-ed piece in “The New York Times.”

GREGORY:  What is the impact of all of this?  It has been reported that two sources have told your reporters they'll no longer deal with “Time Magazine.”  Do you have any regret about it?

PEARLSTINE:  I regret that we are in a situation where I had to make a decision like this because we don't have a federal shield law that does for us what is done in 49 states and the District of Columbia.

GREGORY:  Why do reporters deserve it, at the end of the day, the kind of a privilege that exists for so few other groups in the country?

PEARLSTINE:  Well, I don't think it's really a privilege for the benefit of reporters.  I think it's a privilege for the benefit of society.  And that's because having the right to grant confidentiality to a source enables reporters to get the kind of information that a free society requires.

GREGORY:  Norman Pearlstine, the editor in chief of “TIME” magazine, Time Inc., thanks very much for your views.

PEARLSTINE:  Thanks very much for letting me join you today.

GREGORY:  Join me tomorrow night at 7:00 p.m. Eastern for more HARDBALL.  Chris will be back here.  And he'll talk to Senator John McCain about Judge John Roberts, President Bush's choice for the Supreme Court. 

And next, on “COUNTDOWN,” Keith Olbermann talks to a friend of Judge Roberts who clerked with him for Justice Rehnquist.

END

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