updated 8/9/2005 10:43:27 AM ET 2005-08-09T14:43:27

Guest: Robert Bork, Tom Brokaw, Ted Koppel, Cokie Roberts

DAVID GREGORY, GUEST HOST:  Tonight, America says goodbye to Peter Jennings, a giant in the news business for five decades. 

I'm David Gregory.  Let's play HARDBALL. 

Good evening.  I'm David Gregory, in for Chris Matthews tonight. 

As you undoubtedly heard by now, Peter Jennings died last night, at the age of 67, after a short, but valiant struggle against lung cancer.  Tonight, we have asked some of his closest friends and competitors for their memories, including Tom Brokaw, Ted Koppel, and Cokie Roberts. 

Later on HARDBALL, Robert Bork, perhaps the most famous Supreme Court nominee who never made it to the high court.  We will get his views on the fight ahead over Judge John Roberts. 

But we begin tonight with reaction to the stunning loss of Peter Jennings. 

I spoke today to “Nightline” anchor Ted Koppel and asked him what went through his mind when he got the sad news.

(BEGIN VIDEOTAPE)

TED KOPPEL, “NIGHTLINE”:  Well, I'm thinking that—that, you know, Peter and I shared something that, unfortunately, I don't share with anyone else at the network.  And that is, we were sort of here at the beginning. 

I joined in '63, he in '64.  ABC was not only third.  It was probably fifth out of the three-network battle.  It was a pathetic little news division.  And we were a couple of pathetic young reporters who didn't know anything and were trying very hard to pretend that we did.  And that was the source of both great amusement, but also great pride for the two of us over the years, to be able to look back on what it used to be and what it became. 

GREGORY:  And it's a unique experience to be with a friend and a colleague where you're actually instrumental in building something.

KOPPEL:  Exactly.  Exactly. 

I mean, we were so low on the totem pole when we joined ABC and so hoping that we—I mean, it's a simple fact of the matter that NBC wouldn't have had us.  CBS wouldn't have had us.  We were much too young, much too inexperienced.  And it was just a great joy to be able to work at it together and ultimately to see ABC emerge as this great news powerhouse. 

GREGORY:  What captured you about his life story?  So much is made about the fact that he didn't graduate high school.  He had a crack at the big job and it didn't go so well early on.  And then he gets it later on in his career.

KOPPEL:  Yes. 

What really got me about Peter was the determination he had to make up for what he would have been the first to admit was a huge mistake.  He dropped out of high school when he was a sophomore.  He was so eager to get to work in broadcasting and, as he himself put it, bone lazy when it came to schoolwork, that he spent the rest of his life catching up.  And, boy, did he. 

Peter Jennings was the best self-educated man I have ever known.  Whenever he would come into a new city overseas, he would make it a point to contact whoever the smartest people in town were, whether those were politicians or military people or other journalists or academics.  And he would invite these people out for a drink or invite them out to dinner. 

And Peter's great quality was that he had this capacity of making you feel that he was so interested in what you were saying.  And he wasn't faking it.  He really was.  When he traveled, he traveled with an extra suitcase that was always with books.  So, Peter educated, continued to educate himself all the while he was alive.  So, he had a lousy formal education and a brilliant home-schooling. 

GREGORY:  I had a mentor tell me early on that if—you can do an easy test about whether you want to be a reporter.  It's, are you genuinely curious about things?

KOPPEL:  Yes. 

GREGORY:  And that was certainly him. 

KOPPEL:  Yes.  Absolutely.  He was genuinely curious.  And he was just fascinated by people who knew more than he did.  And he sopped it up like a sponge. 

GREGORY:  Tell me something about him that would not be apparent if you were just a lifelong viewer.

KOPPEL:  This very cool, aloof, controlled anchorman was a real softy, I mean a genuinely sentimental, loving human being. 

I—I remember, one time, he and I were in New York very young, in our 20s.  And we were stopped by a panhandler.  And both of us reached into our pockets and gave the guy a buck.  And I moved on.  And Peter did not.  He stopped and talked to the man for about 10 minutes.  And I realize that what Peter—doing was a far greater act for charity than what I just had done.  And it really wasn't even charity.  He felt that what this man needed was the dignity of recognition, the dignity of someone paying attention to him, talking to him as an individual, not just someone to be handed a dollar and ignored. 

And that was—that little story, I think, tells more about who Peter Jennings was than maybe much of what was seen on the air. 

GREGORY:  What about his view of the world and his experience, particularly in the Middle East, as a young correspondent for ABC News and how that informed his later reporting, how it informed his role as an editor and anchor, ultimately, with 9/11 and in the wake of 9/11?  How did all that come together? 

KOPPEL:  Peter, you have to remember, was the first American television bureau chief in the Arab world.  When he and ABC News set up that bureau in Beirut, there was no other network news bureau anywhere in the Arab world. 

And that meant that Peter was covering a story that was almost entirely covered on television from the Israeli side, but Peter was covering it frequently from the Arab side.  He was often and unfairly portrayed as being anti-Israeli.  He was not.  He really was not. 

And there was a great fundamental decency to him and a determination that, difficult as it might be, that he believed not that every story has equal and opposite points of view that are equally legitimate, but that the Arab side of the story deserved to be told.  And he was determined to do that.  And that informed every story that Peter ever covered.  He was always interested in knowing, what else is there to it?  What is the other point of view? 

GREGORY:  Did he care about something more than anything else? 

KOPPEL:  I'm sure he did.  I don't know what it was. 

GREGORY:  As a journalist?

KOPPEL:  He cared about context.  He cared about fairness.  He cared about making sure that—that people understood more than just the—the quick surface story. 

As you know, being in the business, his greatest gift as an anchor was to appear unruffled and to be able to give context a story at a time that some guy is yelling in his ear that, if you don't go to guest number one, he's going walk out.  We have got 30 seconds before you have to go to this live shot that we have coming in from wherever it is. 

There might be people handing you cards from left and right.  And yet, the impression that Peter conveyed was that he was always completely in control, had an absolute sense of where he was coming from and where he was going.  And, on top of all of that, he was a soothing presence.  That was almost unique.  I don't think there's another anchor out there who was as good as that as Peter Jennings. 

GREGORY:  In his sickness and then in his death, he was so dignified.  And—but I can't help but wonder what these last terrible months have been like for him personally.

KOPPEL:  He was fighting it until the very end and I think was determined to believe that he could still beat it.  I don't know at precisely what point he came to the conclusion that he would not.  But I do know that I was with him about 10 days ago and asked him whether he wanted to talk about death and dying.  And, for the first time, he said yes. 

So, I have a pretty good sense that, certainly a couple of weeks ago, Peter must have known.  But he was determined not to give up as long as there was any chance. 

GREGORY:  Are you willing to share some of his thoughts about dying? 

KOPPEL:  No. 

GREGORY:  Was he angry?  Did he accept it? 

KOPPEL:  No.  He was certainly not angry.  I think that there are many things he regrets.  He's got two, when I say young, in their early 20s, children of whom he is enormously proud. 

He loves—he loved his wife, Kayce, dearly.  And she was an absolute tower of strength, has been throughout this entire process.  He had a great deal to live for.  But he always said—and I'm sure meant it—that he had lived a very, very good and full life.  And so, I think perhaps, in one small portion in his brain, he was willing to accept that he had packed more into 67 years than some people pack into 97. 

GREGORY:  This is such an abrupt and sad end to an era, with Tom Brokaw and Rather and now Peter Jennings out of the chair and, unfortunately, not with us any longer.  You are also leaving.  What does it mean, not only to our business, but to—most importantly to the viewers about the fact that this era is closing? 

KOPPEL:  I think it mean just that.  This era is closing and that means that another era is beginning.  And I don't think that always has to be seen as cause for, you know, great alarm. 

There are talented younger correspondents like yourself, who are going to move in.  And you will do it in your way.  And I'm sure you will do it brilliantly.  And it's only fair to remind people that, when Tom and Dan and Peter and Ted came on the scene, there were people who bemoaned the fact that Chet and David and Walter and Eric and some of the other great names that young people today don't even know, the Brinkleys and the Huntleys and the Cronkites and the Sevareids and the Reynolds, there was that same feeling of alarm, that, it's never going be the same.  All the old rocks, all the old great ones are leaving. 

Well, that's in the nature of life.  People get old.  They leave.  And younger talented people come in and take over. 

GREGORY:  Ted Koppel, thanks very much. 

KOPPEL:  Thank you. 

(END VIDEOTAPE)

GREGORY:  And still to come tonight, Tom Brokaw and Cokie Roberts remember Peter Jennings. 

Later on MSNBC, don't miss Rita Cosby's new show, “LIVE & DIRECT,” premiering tonight at 9:00 p.m. Eastern, and “THE SITUATION WITH TUCKER CARLSON” going live tonight at 11:00 p.m. Eastern. 

We'll be right back.  This is HARDBALL, only on MSNBC. 

(COMMERCIAL BREAK)

GREGORY:  Coming up, the life of Peter Jennings remembered by former anchor and managing editor of “NBC Nightly News” Tom Brokaw, when HARDBALL returns.

(COMMERCIAL BREAK)

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

Cokie Roberts of ABC News covered politics side by side with Peter Jennings.  And, also, today, she told me what it was like to lose a friend and a colleague. 

(BEGIN VIDEOTAPE)

COKIE ROBERTS, ABC NEWS:  Yes, but one of the nice things is, is that we have the opportunity to talk about him.  And that's one of the advantages of mourning a public person, is that you get to say all of the things that you feel about them. 

GREGORY:  How is—how did he handle the end?  How did he handle these last months? 

ROBERTS:  He was unbelievable. 

The idea that, of course, he had to come on the air and announce to the world what his diagnosis was, which is terribly difficult to do, and you could tell from that broadcast how difficult it was.  And then he stayed in touch by e-mail and stayed in touch with his program all the time and I think cheered everybody else up. 

GREGORY:  Was he prepared for this? 

ROBERTS:  Is one ever prepared for this?  I think that the hard something is leaving your family.  And even if you're ready to make peace yourself, you don't—you don't want to miss that.  And Peter loved being a dad.  It was something he was incredibly proud of, was how good a dad he was.  And I'm sure it broke his heart to realize that he would never meet his grandchildren. 

GREGORY:  So hard with a family, particularly given what his life was over these many years and how much sacrifice was involved in doing what he did, to still carry on as a father? 

ROBERTS:  Yes, but it's something he felt very strongly about.  Many times, he talked to me about that, about the fact that he was a—felt that he was a really good dad and that that was so important to him. 

And, famously, on September 11, when he was carrying on, just incredibly, through the day and night, the one time that he really choked up on the air was when he was—had talked to his own children and realized how frightened they were and trying to tell other parents to talk to their children. 

GREGORY:  What stands out to you among your reflections, among the stories in your mind about him? 

ROBERTS:  We—we covered, of course, a lot of elections together and election nights, long election nights, especially 2000. 

But I think that his love of America in the end turned out to be something that surprised me, because he was a Canadian.  And he honored his Canadian heritage.  I mean, he felt such a strong tie to both his father and mother that I think he thought it dishonored them to become a U.S.  citizen.  But then he traveled the country so much and learned so much about it through—through his political reporting, through the books, that he really fell in love with this country.

And, on Election Day, 2004, he was so excited, because he had voted. 

And it was like a little kid, you know?  I voted.  And...

(LAUGHTER)

ROBERTS:  And...

GREGORY:  Yes, the first time. 

ROBERTS:  For the first time. 

And that was something that, last night, when I got the news, just made me so sad, because I thought that was the only time he got to vote. 

GREGORY:  What did he care about most? 

ROBERTS:  I think he cared about getting the news to people. 

You know, that's what we all say we care about.  But I think that he had insatiable curiosity.  And he wanted to get all those things he was learning and having so much interest learning, he wanted everybody else to learn.  And, of course, he made it so accessible to people. 

I think that the way that he did live broadcasts was just genius.  And one of the things that was ingenious about it was that he never pretended that he was sitting by himself at that anchor desk without a lot of other things going on.  And if he was getting news in his ear, he'd say:  Wait a minute.  Hold on.  I'm hearing in my ear.

Or he would ask for information and a piece of paper would show up.  And he'd say, thank you very much.  I mean, he wasn't the voice of God sitting up there.  He was Peter Jennings, the anchor, with a whole lot of other people in the background helping out. 

GREGORY:  You talk about politics.  In a town with a lot of people with a lot of smart things to say about our political life, what did he add that was different? 

ROBERTS:  I think he—he brought the perspective of somebody who hadn't grown up in American politics and had had to learn it as a grownup.  And that—that is different. 

It's—it's looking at it from a fresh view.  And he was always really rather startled by it, sometimes, sometimes naively so, which is a wonderful thing in a reporter, because we tend to be so cynical about these things. 

GREGORY:  Final question.  What does it mean to you that this era that everybody is talking about, with the big three now gone, and this such an abrupt and sad end to this—to this chapter, what does it mean to the viewers of what we do? 

ROBERTS:  I think that viewers are now going to have to adjust to the idea that people that they have been familiar with for decades are no longer the reliable voices, faces, bringing them news. 

And then they have to decide who is and—and where they want to get that information.  My son is almost 37 years old.  And he pointed out to me not too long ago that, basically, his entire sentient life, these three guys have been the anchors of the—of the network broadcasts.  And that is—that is something I had not thought about until he said that.  And this is a huge change for Americans in terms of how they get the news. 

GREGORY:  A big loss. 

Cokie, our condolences and thanks. 

ROBERTS:  Thank you. 

(END VIDEOTAPE)

GREGORY:  Cokie Roberts of ABC News. 

And when we return, NBC's Tom Brokaw. 

But, first, here's Peter Jennings reporting on the attack at the 1972 Munich Olympics. 

(BEGIN VIDEO CLIP)

PETER JENNINGS, ABC NEWS:  If I were to guess at the moment at which of the commando organizations this group is to come from, I would be most likely to narrow in on a group called Black September. 

The Middle East, Israel, and the Arab countries, is like one of the evil pendulums of history, which just goes back and forth and back and forth, hitting all sorts of inconsistency and misunderstanding every time it makes a move. 

(END VIDEO CLIP)

(COMMERCIAL BREAK)

GREGORY:  And welcome back to HARDBALL. 

I'm David Gregory, in tonight for Chris Matthews. 

Even though they were fierce competitors, Dan Rather, Tom Brokaw and Peter Jennings were, most importantly, friends and colleagues.  They covered the major news of the day with class and dignity and defined what network news was to become for generations. 

Now that Peter Jennings is gone, we turn to Tom Brokaw, the former anchor and managing editor of “NBC Nightly News,” for some perspective on his friend and the legacy he leaves behind. 

Tom is in Montana tonight.

Tom, thanks for being here. 

TOM BROKAW, FORMER “NBC NIGHTLY NEWS” ANCHOR:  My pleasure, David. 

GREGORY:  Did you have a sense that the end was this near? 

BROKAW:  I did, actually.  I talked to Kayce last week.  He had a very rough weekend, the weekend of his 67th birthday. 

And then there was a small turn for the better.  But all the indications were that the end game was very close and that they were preparing to deal with that.  She didn't express that.  They wanted to fight to the end.  I had a remarkable conversation with Peter at the beginning of his treatment, when he said to me, realizing the mortality rates for lung cancer:  I told my family I just want to lie down and go away.  But the response from the American people has been so overwhelming, I feel I owe it to them, as well as to my family, to fight on. 

But this is a particularly devastating illness, as you know.  Lung cancer—I've now lost nine friends to lung cancer.  And the calendar is almost always unforgiving, in the way that it was for Peter. 

GREGORY:  A five-year rate of survival, less than 50 percent.  I mean, it's very difficult to wage a long battle with this, isn't it? 

BROKAW:  It is.  And it's—if I may this, this is my portable soapbox.  It's all about cigarettes and smoking, for the most part, lung cancer.  You talk to any major doctor in this country, whether they're involved in cancer research or just general practitioners, and they'll tell you, if they could change one thing in America, they would eliminate cigarettes, because they bring on so many devastating health consequences. 

And the cost to the society, as a result of that, are just enormous.  And Peter, I—one of my first memories of Peter is that he was a very heavy smoker.  He smoked like he did everything else, with great style.  He had the little Cartier lighter and he did it with a certain by panache.

But he was a heavy smoker.  And my guess is that what we're witnessing today are the consequences of that. 

GREGORY:  Did he talk at all about that, Tom, in these past months?  Was he angry at himself for being a smoker?  I know that, in some of his reporting on the tobacco industry, he'd always been very even-handed and without any particular resentment for the tobacco companies that some people may feel of that generation. 

BROKAW:  No, I don't think so. 

I—we didn't talk about that.  I really stayed in touch more with Kayce after that initial conversation just to, kind of on a weekly basis, to see how he was doing and to let him know that we were here if they needed anything. 

I think that the concentration for the past several months has been on his treatment and trying to get beyond the condition that he was in.  He had no illusions about how difficult this fight was going be.  Neither did his friends.  And it was very tough at the end, in terms of weight loss and that kind of thing.  But he put up a heroic battle. 

And I—as I said earlier today, Peter would also want us to acknowledge that this goes on in American families every day across this country, that they're fighting cancer in one form or another.  Peter was a very high-profile case.  And maybe, as a result of that, we'll make some gains on lung cancer.  But it's a very tough disease. 

GREGORY:  Much more with Tom Brokaw in just a moment. 

But, first, here's Peter Jennings talking about covering the 9/11 attacks. 

(BEGIN VIDEO CLIP)

JENNINGS:  I almost lost it a couple of times on 9/11, most specifically when I turned around to find that my children had called from two parts of the country. 

I checked in with my children and it—who are deeply stressed, as I think young people are across the United States.  And so, if you're a parent and you have got a kid in some other part of the country, call them up.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

(NEWS BREAK)

GREGORY:  Welcome back to HARDBALL.  I'm David Gregory, in tonight for Chris Mathews. 

And we're back with NBC's Tom Brokaw from Montana talking about the loss of Peter Jennings. 

Tom, tell me how you got to know Peter Jennings, what your first meeting was like.

BROKAW:  We met in 1966.  I was a young reporter for NBC covering the campaign of Ronald Reagan, running for governor of California, and Pat Brown, who was the incumbent. 

Peter was the boy wonder of ABC News, but it was kind of a meteoric rise and it was beginning to fall for him.  So, he came out to California to cover that campaign for ABC.  We had a mutual friend who introduced us.  And we got along famously from the beginning.  We spent the day in Frank Sinatra's Learjet, which he had loaned to the campaign for the press coverage. 

And we had a great time going around the high desert of California, making stops along the way.  And, at the end of that day, we really were friends and we stayed in touch over the years.  Now, you know, we were also friendly competitors.  We were hotly competitive.  He went off to the Middle East and to Europe.  And I went to Washington. 

And then, when he was chosen to come back as the anchor of ABC News, Meredith and I gave a party for Peter and his wife to welcome them to New York.  It was that kind of a relationship.  I always remember that, when I would get off a plane in the Middle East, there would be Peter in his bush jacket or, on cold occasions, in his trench coat, saying, welcome to my part of the world, lad.  He really did know the Middle East. 

(LAUGHTER)

GREGORY:  He had just a way about him, Tom.  He was very urbane and he spent so much time in the Middle East and overseas, Canadian, after all.  Did you as—in a competitive sense, when you sized him up initially, did you think this was a guy who was going to click with an American audience?

BROKAW:  You know, I really didn't think of it at that way at all. 

I had such a high regard for his work ethic, for his determination to be seen as a working correspondent.  And he had exceptional broadcasting skills, as you know.  I said at one point that Peter was born to be an anchor.  He came from a distinguished broadcasting family in Canada.  His father was the head of the news division for the CBC and the first national newscaster there. 

But Peter earned that role.  He came to the anchor desk after all those years in the field.  And I think, like the rest of us, there was always that kind of patina of insecurity, a little layer of fear that somehow he wouldn't be worthy on a day-to-day basis.  And he was constantly trying to overcome that, going out to Bosnia, especially a, story that he effectively owned in network news, and back to the Middle East on many occasions. 

And then, when he wrote his book, he kind of discovered other parts of America that he had not spent much time in. 

The great thing about Peter always was that, whatever project he was involved in, that was the best project.  He was extraordinarily enthusiastic about wherever he was and whatever he was doing.  And he did not hesitate to let you know that. 

GREGORY:  Do you think his—some of the criticism of him, of his view of the world, of his reporting, particularly on issues in the Middle East, was fair? 

BROKAW:  Well, I—were they fair or not?  I think that Peter did see the Middle East, especially, much more through an Arab prism than a lot of American journalists did, because of the relationship of the United States with Israel.  And having spent so much time in that part of the world—for a time, he was married to a Lebanese woman. 

I think that he was not actively determined, but he was more inclined to see both sides of that coin, as he might describe it. 

GREGORY:  Tom, I've—I've wondered a lot about, you know, especially in the early years, in the early '80s, you become the anchor of “Nightly News” and he takes over for “World News,” I mean, few people can understand the sort of bond that you would share with Peter Jennings and Dan Rather, because this kind of rarefied existence and, yet, at the same time, a kind of competition that was unparalleled at the time.  Long before there were blogs and Web sites and 24 hours news cable, what you did on the nightly news was a competitive idea. 

BROKAW:  Well, the other piece of it—and we did this intuitively, without checking with each other.  We changed the DNA of these evening newscasts, because we went on the road.  We all felt that we were individually and collectively reporters who also had this assignment as anchors. 

But, because of the technology, we could go to the Philippines, as we did, or we could go to China, or you could go to South Africa, or you could go to Moscow quickly, ride overnight airplanes, get there, get on the air, and do the broadcasts from there.  So, we were constantly bumping into each other on these flights or in these distant places. 

And, at one point or another, each of us would have a beat.  Dan was at Tiananmen Square shortly before it blew up and stayed there longer than anybody else did.  I was at the Berlin Wall the night that it came down.  Peter got back to the Middle East and got some big stories there.  And, certainly, he was in Bosnia on occasions when the marketplace was blown up.  So, we didn't keep a regular scorecard. 

But, on an irregular basis, I suppose, we kind of kept track of each other.  And at the end of this long run that we had last year, as we toted it up informally among ourselves, we decided it was pretty much a dead heat and that we all made each other better at what we did. 

GREGORY:  I've got to think—I was thinking about this today, Tom, that what must be one of the sad things for you is that it strikes me you were looking forward to comparing notes on the experience, now that you're no longer in the chair and have more time to think about it.  And, while he was still at it, he may not have been doing it more than a few years.  And Dan Rather has now moved on as well, that that was something that you relished.  The three of you, who were sort of closing down an era, could spend that time.

BROKAW:  Well, we had a dinner earlier in the year.  And Ted Koppel was there as well.  It was a dinner for Dan, saluting him as he left the chair at CBS. 

And I got up and said, I got to tell you that, having left “The Nightly News” anchor position, I get up in the morning now not wondering what airplane Peter is on or what airplane Dan is on. 

And Peter and I talked about his continuing role at ABC News.  And what was most attractive to him were the special reports that he was able to do with Kayce, his wife.  They had a production company.  And they were looking forward to doing more hour documentaries.  And that, of course, had real resonance with me, because that's one of the reasons that I wanted to step down from “Nightly News,” so that I could do longer-form reporting. 

I think that we were at a stage in our lives and our careers when the daily news didn't have the same appeal as spending more time at greater length and greater depth on a single subject. 

GREGORY:  Tom, for those coming of age as viewers and consumers of news now, will the fact that you three are no longer in the position that you were, will it change the viewers of today?  Will it change their understanding of the world?  Will it be different in some way? 

BROKAW:  Oh, I hope not, David.  I don't mean to praise you unduly, but I think you're a first-rate White House correspondent.  You share the same values that I had when I was a correspondent.  Richard Engel, who works for us in the Middle East, is one of the best young correspondents I've ever seen abroad. 

Jim Maceda and our other veterans, Martin Fletcher in Israel, they are still the kinds of reporters that you turn to when there's a big international crisis.  And I know that Brian Williams, who succeeded me, shares that view as well.  America, especially now, has to look beyond its own borders, because we are living in a global society.  This has not been fortress America for a long time, however you want to describe it, politically, militarily, culturally, economically. 

So, I—I'm counting on you, David, and the next generation to come along and keep the bar high. 

GREGORY:  Well, thank you for that, Tom.  And thanks for joining us very much.  Great to hear your stories and your reflections. 

BROKAW:  OK, David.  My pleasure. 

GREGORY:  All right. 

And when we return tonight on HARDBALL, former Supreme Court nominee Robert Bork recounts his confirmation battle. 

This is HARDBALL, only on MSNBC. 

(COMMERCIAL BREAK)

GREGORY:  Coming up, former nominee to the Supreme Court Robert Bork previews the confirmation hearings for John Roberts when HARDBALL returns.

(COMMERCIAL BREAK)

GREGORY:  Welcome back to HARDBALL. 

The countdown is on for the first Supreme Court confirmation hearing in more than a decade. 

Former Supreme Court nominee Robert Bork knows firsthand about how bruising the confirmation process can be.  Eighteen years ago, his nomination was blocked by a well organized campaign by Democrats and liberal interest groups.  He's edited a forthcoming book on the Supreme Court entitled “A Country I Do Not Recognize: A Legal Assault on American Values.”

And Judge Bork is here with me now.  Welcome.

ROBERT BORK, FORMER SUPREME COURT NOMINEE:  Thank you. 

GREGORY:  Let me turn back the clock to that year at the height of your confirmation battle, just after you had been nominated.  This was Senator Kennedy, who took to the Senate floor to say this.

(BEGIN VIDEO CLIP)

SEN. EDWARD KENNEDY (D), MASSACHUSETTS:  Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, and schoolchildren could not be taught about evolution. 

(END VIDEO CLIP)

GREGORY:  Judge Bork, why, in your judgment, were you blocked to the Supreme Court? 

BORK:  I think they were afraid I would be the fifth vote to overturn Roe against Wade. 

GREGORY:  Simple as that? 

BORK:  Well, that was—I think that was the main driving force. 

I should say about that, if you allow me a point of personal privilege, that four Supreme Court justices, Stevens, White, Chief Justice Burger, Thurgood Marshall, all said I should have been confirmed.  Now, that doesn't square with what Kennedy said about me. 

GREGORY:  Were you then or are you now outside of the mainstream, your judicial philosophy? 

BORK:  Where's the mainstream? 

GREGORY:  I ask you.  I mean, that's why I pose the question. 

BORK:  No.

I think the mainstream has always been that you interpret the Constitution according to the principles of the people who made it law understood themselves to be enacting.  But that's now described as outside the mainstream.  But a lot of this is just attack rhetoric.  People will say anything. 

GREGORY:  When you look back at the process, do you think that you could have done anything differently or those who were defending you could have done something differently that would have changed the outcome? 

BORK:  Both cases.  I could done—I could have been better at what I

·         at the hearings. 

GREGORY:  How so? 

BORK:  Well, you know, at the end, I made that infamous remark about the fact that the fact that being on the court would be an intellectual feast, which it would have been.  But that wasn't regarded as a politic thing to say. 

GREGORY:  What did you mean at the time? 

BORK:  I meant I would find it extremely interesting to work on the problems of the court. 

But, also, there was no support.  The campaign was all on the other side.  They spent millions of dollars in ads and TV commercials and so forth, I must say, misrepresenting my positions and my record.  And our side had nothing of that sort at all.  So, it was a very one-sided campaign.  And the only person speaking for me was me. 

GREGORY:  And—and your detractors had been able to speak out against you really for an entire month that summer prior to your hearing.

BORK:  That's right.  I think it was more than a month, yes. 

GREGORY:  When you read, in the run-up to the nomination of Judge Roberts, the shadow of Robert Bork over the process, do you view that now as a helpful thing or an unhelpful thing to the process now? 

BORK:  Oh, I the process has become thoroughly corrupt, because it's become politicized. 

Of course, the Supreme Court invited that.  The Supreme Court has gone off outside the actual Constitution, the majority of them have, outside the actual Constitution to make essentially political and cultural decisions.  Now, once you do that, once you make yourself a political institution, you're going to have a political fight over it, to get control of it. 

GREGORY:  Give me two prominent examples in your mind where this court has not faithfully interpreted the original intent of the Constitution? 

BORK:  Well, the most famous example is Roe against Wade.  There's nothing in the Constitution about abortion, either pro or con. 

And a lot of people don't understand that.  They think, if you overrule Roe against Wade, that abortion becomes illegal.  It does not.  It simply goes back to the states, where it always has been, up until Roe against Wade, for decisions by the moral choice of the American people.

The other areas are clear.  Pornography is one, the protection of pornography by the First Amendment, the religion decisions, trying to erase religion from our public arena.  I think you could go on with these things.  There's a lot of them. 

GREGORY:  How would America be different had Robert Bork been confirmed to the Supreme Court? 

BORK:  Well, America would be different in the sense that Roe against Wade would have been overruled and the issue would have gone back to the people and their legislators, instead of judges. 

GREGORY:  You didn't consider it settled law? 

BORK:  You know, Plessy against Ferguson announced a separate-but-equal doctrine as far as blacks and whites were concerned, was overturned after I forget how many years.  That was back in the 1800s someplace.  And that was overturned in 1954 by the Supreme Court. 

Now, you can say Plessy was settled law.  It was also wrong law.  And it got overturned.  You know, it's been true for—throughout the history of the court that, if a decision has been wrong, the court does not necessarily regard it as binding precedent.  And the reason for that is quite simple.  When the court makes a mistake or when the court abuses the Constitution, nobody can correct it except the court. 

GREGORY:  We'll leave it there. 

We'll take a short break, come back and talk about the nomination of Judge John Roberts when HARDBALL continues, only on MSNBC. 

(COMMERCIAL BREAK)

GREGORY:  We're back on HARDBALL with former Supreme Court nominee Robert Bork, who has just edited a new book, “A Country I Do Not Recognize:

A Legal Assault on American Values.”  And he's, of course, now with the Hudson Institute as well. 

We were talking just a moment ago, Judge, about the issue of abortion.  Now let's talk about Judge Roberts, whose hearings will begin on September 6.  This is an answer that he provided on a questionnaire to the Senate Judiciary Committee talking about precedent, settled law, as he described Roe v. Wade.  He writes the following—quote—“Precedent plays an important role in promoting the stability of the legal system.  And a sound judicial philosophy should reflect recognition of the fact that the judge operates within a system of rules developed over the years by other judges, equally striving to live up to the judicial oath.”

You're not much of a believer in the role of precedent in—in constitutional law.  Is your view of his answer on the question of Roe v.  Wade that he would see it as settled law, would not want to overturn it? 

BORK:  I have no idea.  I think we're going to find out in the confirmation hearings.  At least, they're going to try to find out in the confirmation hearings.

But precedent is important.  And before you overturn a decision, you ought to be very careful and make sure you think you're right.  But if you think the other court has gone overboard, there's no reason to keep doing the wrong thing. 

GREGORY:  You know Judge Roberts? 

BORK:  Yes. 

GREGORY:  Have you advised him on this process? 

BORK:  No. 

(CROSSTALK)

BORK:  No.  That's like asking George Armstrong Custer to advise how to deal with the Indians. 

(LAUGHTER)

GREGORY:  But your experience can teach a lot.  What—you believe that this is a system that is essentially corrupt, in terms of the confirmation process.

BORK:  Yes, sir.

GREGORY:  But how would you advise him?  Do you think he faces a difficult challenge ahead? 

BORK:  He has to devise a way, I hope—and I think he will—to avoid answering what he would do in particular cases. 

Now, he has an advantage that he hasn't written much that anybody can pick on, so he doesn't have to answer, really.  In my case, I had written a great deal and it was being misrepresented.  So, I had to go into the issues.  But I would advise him not to go into the issues.  And Ruth Bader Ginsburg did not go into the issues. 

GREGORY:  Do you think that you could ever be confirmed, even if you had acted differently during the hearings, if you had had better support from those who put you up?  In other words, can somebody like yourself, with strong views, who has documented them and discussed them, can you break through a process that is, by its nature, political? 

BORK:  I think, if your party controlled the Senate, you could.  And, in my case, the Democrats controlled—controlled the Senate. 

So—but it's a hard thing to break through.  If you keep talking about the original understanding, a lot of people are upset because they have decisions they like very much, even though they don't come out of the Constitution, really, and they don't want to see them overturned. 

GREGORY:  Do you think this president can be confident in the fact that he has not nominated an activist judge? 

BORK:  I very much doubt that John Roberts will invent new constitutional rights out of whole cloth, as had been done in the past. 

What I'm not sure about and we'll find out is whether he'll have the gumption to go back and try to undo some of the very bad decisions of the past. 

GREGORY:  In other words, you're concerned that his view about stability, the role of stability, in the life of America, may trump better judgment about the Constitution.

BORK:  Well, that is a problem. 

GREGORY:  All right. 

Judge Robert Bork, thanks very much for being here. 

Before we say goodbye, we want to provide one more look at the life of Peter Jennings. 

(BEGIN VIDEOTAPE)

UNIDENTIFIED MALE:  This morning, with profound sadness, we report to you that Peter Jennings died last night from lung cancer. 

DAN RATHER, CBS NEWS:  Peter Jennings was one of the most talented, caring and successful journalists of all time. 

BROKAW:  He cared so deeply about so many things and he had such curiosity about life, about politics, about this country, born a Canadian, became an American citizen. 

Peter, God bless you. 

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  A lot of Americans relied upon Peter Jennings for their news.  He became a part of the life of a lot of our fellow citizens.  And he'll be missed.  May god bless his soul. 

JENNINGS:  At any rate, that's it now on “World News Tonight.”  Have a good evening.  And I'm Peter Jennings.  Thanks and good night. 

(END VIDEOTAPE)

GREGORY:  For all of us in this business, this was a tremendous loss. 

Join us again on HARDBALL tomorrow night at 7:00 p.m. Eastern for more

HARDBALL.

And later tonight on MSNBC, Rita Cosby's new show, “LIVE & DIRECT,” premieres tonight at 9:00 p.m. Eastern.  And “THE SITUATION WITH TUCKER CARLSON” goes live tonight at 11:00 p.m. Eastern.

But coming to you now is “COUNTDOWN WITH KEITH OLBERMANN”—Keith.   

END

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

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